SUBMISSION
SUBMISSION
CENTRE FOR RESEARCH
IN LAW AND DEVELOPMENT IN ASIA
2024
Alyaa Nadhirah Binti Dato Hj Mohamad Shariff, Dr. Ambikai S T Singam and Dr. Heama Latha Nair
Abstract
It is frowned upon to have an abortion, and the law is not entirely clear in Malaysia. Many Malaysian women are experiencing difficulty seeking safe abortions due to the ambiguity and restricted abortion laws. They will thus have to resort to an unsafe and illegal procedure. This article examines Malaysia's abortion regulations from a civil law perspective and argues the case that they are ambiguous and restrictive. The article criticises the current legislative framework that governs abortion, drawing particular attention to legal gaps pertaining to gestational limits that fall under the purview of the legislation. This article will examine an idea for reform that would expressly regulate the gestational limits on abortion by comparing it with the abortion laws in England and Wales, and India. The authors conclude at the end of the article that women's access to safe abortions, where it is legal, has been hampered by Malaysia's restrictive abortion laws. The authors propose a legal reform that would guarantee women's rights to safe abortions in Malaysia by incorporating gestational limitations within the parameters of the law.
Keywords: Malaysia, Law Reform, Abortion, Gestational Limit, Autonomy, Safe Abortion
Jocelyn Lim Yean Tse
Abstract
Cybersecurity is no longer a remote topic in international arbitration, as information technology (“IT”) continues to be widely used in international arbitration proceedings. Incidents of cyberattacks are no longer foreign to the arbitration community. Although some of these cyberattack incidents are rare, they have occurred, and the consequences are damaging.
This article examines the use of illegally obtained evidence, including evidence obtained through hacking as a result of cyberattacks in arbitration proceedings, the importance of cybersecurity measures and the steps taken by the arbitration community to tackle cybersecurity risks in arbitration proceedings. However, there are practical challenges in implementing the recommended cybersecurity measures.
Keywords: Cybersecurity, international arbitration, cyberattack
Ivy Liew Xin Yi
Abstract
Unlike most Commonwealth countries, Malaysia has a unique office of the Attorney General (AG) which fuses with that of the Public Prosecutor (PP).
This article seeks to discuss the wide discretionary powers of the AG/PP with reference to Article 145(3) of the Federal Constitution, in relation to:
i. Considerations of the judicial viewpoints and developments of the applicability of the doctrine of judicial review.
ii. The conflict of interest with the fusion of roles of the AG and PP, with emphasis on the importance of the AG/PP exercising his powers without being affected by politics.
iii. The paradoxical position of the PP which ideally should be independent of the Prime Minister and the Government of the day.
iv. Most importantly, the ongoing movement of separating the powers between the AG and the PP in Malaysia.
This article aims to address and review the potential issues arising from the current position concerning the fusion of roles in Malaysia, and to support the separation of the AG/PP’s roles.
Overall, by the use of doctrinal legal research, this article analyses the AG/PP’s position and concludes with a commendation of the positive developments resulting from the judicial decision in Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors, and the expectation of the much-needed reform, which shall take place at the end of 2024 by way of a Bill, separating the powers between the AG and the PP which would promote and strengthen the rule of law.
Keywords: Attorney General, Public Prosecutor, Federal Constitution, judicial review, separation of powers
Yichen Pan
Abstract
The current sentencing system for criminals in Malaysia, like any other country’s criminal justice system, faces its share of shortcomings that warrant scrutiny. This paper explores the deficiencies within Malaysia's existing sentencing system, delving into key areas where the system falls short in meeting the goals of justice, rehabilitation, and equity.
In this article, the author discusses four prominent deficiencies in Malaysia’s criminal justice system, which include:
i. The abolishment of the death penalty is still on the way; there is still a long way to go to completely abolish the death penalty policy and find effective alternative ways to regulatory sanctions.
ii. The discretionary nature of sentencing leads to inconsistency in outcomes. The lack of comprehensive and structured sentencing guidelines contributes to uncertain sentencing decisions that result in a common phenomenon of the disparity of similar offences.
iii. The punishment for recidivism still has an unreasonable and wide range, which results in unfair justice for repeat offenders.
iv. Restorative justice, as an alternative approach that focuses on repairing the harm caused by criminal behaviour through inclusive and cooperative processes, has not been formally implemented into the criminal justice system.
This paper underscores the need to address these deficiencies to establish a more just, consistent, and effective sentencing system that aligns with international best practices and the evolving landscape of criminal justice. Potential solutions will be further discussed below, ranging from the development of standardised guidelines to promote equitable sentencing to the increased utilisation of alternatives to incarceration and the infusion of restorative justice principles.
Ultimately, by addressing these shortcomings, Malaysia can enhance its criminal justice system, aiming to strike a balance between punishment, rehabilitation, and societal reintegration for offenders.
Keywords: Malaysian sentencing system, criminal justice, human rights, deficiencies, improvements