Browsing by Author "Farid Sufian Shuaib, Ph.D"

The Drugs Act 17/2011 of the Maldives, while criminalising drug use, permits rehabilitation for both first-time and repeat offenders, including voluntary rehabilitation without criminal charges. However, since its implementation in 2011, drug offences have increased, and those seeking treatment have failed to complete the programme and return to society as law-abiding citizens. This prompts the need to evaluate the Act’s implementation, with the purpose of identifying issues related to the enforcement of rehabilitation provisions under the Drugs Act 17/2011 of the Maldives, and discovering the reason for the exponential growth in numbers related to drug-related crimes in the Maldives. This research, using a qualitative doctrinal method, analysed the drug framework from two primary aspects: (1) punishment under the laws of the Maldives and (2) rehabilitation and treatment offered in the country. To analyse the first aspect, the research utilised the benchmark under Section 10 of the Constitution of the Maldives, which requires the laws to be fully compliant with Shari’ah. Any law that is in contravention would be deemed unconstitutional. Using this benchmark, the concept of punishment for drug offences was identified in Shari’ah literature, and it was established that the punishments for drug offences in the Maldives were in compliance with Shari’ah ta’zir. For the second aspect, the objectives and purposes of Shari’ah regarding rehabilitation and treatment were analysed. It showed that Shari’ah requires the provision of treatment and rehabilitation as a fundamental objective for those requiring treatment. Furthermore, analysis was conducted on conventional rehabilitation models and other modern Shari’ah-based rehabilitation models to relate them to the Maldivian rehabilitation model. It showed that the Maldives has codified in detail the rehabilitation and treatment for drug addicts, and these treatments were found to be compliant with Shari’ah. The research also focused on the Malaysian drug framework, a country similar to the Maldives. However, unlike the Maldives, Malaysia has a successful system for managing the influx of drugs and providing rehabilitative treatment with positive results. It was found that Malaysia has given priority to a community treatment and rehabilitation model, which is not found in the Maldivian drug framework. Moreover, regarding the punishments, it was found that although both countries' punishments for drug offences are fully compliant with Shari’ah, the approach to punishment for drug offences in the Maldives is much more lenient than in Malaysia. The research then focused on identifying the monitoring and rehabilitation authorities established under the drug framework of the Maldives. It was found that two key actors were established in the Maldives: the Drug Court and the National Drug Agency. Failures in the system were generally attributed to issues related to these establishments. Conflicting laws and a lack of oversight functionality in the drug framework led to multiple system failures. It was identified that most drug addicts in need of treatment were denied due to various factors, which could be addressed if the rehabilitation and treatment strategy of the Maldivian drug framework included enhanced oversight functionality and was redrafted into a positive, health-centric model to accommodate everyone needing treatment, as proposed in this research. The findings of this research will help stakeholders address the issue of enforcement failures and promote a more viable rehabilitation and treatment model that is humane, Shari’ah-compliant, and in accordance with international best practices.

Interfaith marriage is socially, religiously and legally contested and one of the most complicated issues in Bangladesh. This study focuses on the Special Marriage Act, 1872 and its practice in the current legal setting of Bangladesh. It examines the existing law on the current interfaith marriage practices and legal issues emanating from the existing law in Bangladesh. This study adopted a qualitative method which is a combination of the doctrinal and non-doctrinal research. For the doctrinal research method, it drew data from various legal writings, national laws, international laws, case law, etc. For the non-doctrinal research method, the study conducted in-depth semi-structured interviews to obtain data from various respondents in Bangladesh, namely, interfaith couples, social activists, religious experts, local police officers, special marriage registrars, judges, lawyers and academics. This study examined the benchmark with the Indian, Malaysian and Indonesian interfaith marriage laws and practices. The findings of this study demonstrate that the number of interfaith marriage-related problems is increasing in the current socio-religious and legal landscape. Similarly, it discovered that the existing provisions of the Special Marriage Act, 1872 are extremely inadequate to handle existing interfaith marriage disputes. It also shows that the court faces various difficulties in determining the disputants’ rights and obligations. Lastly, it reveals that legal and judicial conflicts are created by the inadequacy of the existing law. The study, therefore, recommends by suggesting that there is a need to amend the Special Marriage Act, 1872 which is inadequate in the current legal setting. However, for a long term solution, the existing law needs to be abolished and replaced by the law governing Muslim and non-Muslims as regards the possibility of resolving conflicts between laws.

Article 10 of the Federal Constitution guarantees the right of freedom of the press in Malaysia, subject to several restrictions. Regardless, these restrictions have been viewed as repressive, which impedes freedom of the press in Malaysia. In the meantime, despite those restrictions are abled by laws, there are genuine cases that the press is in excesses in their function that threatened the public interest. The dilemma to strike a balance between the two extremes dictates the need for a new regulatory mechanism to be established; of which the main objective of this research. The researcher identifies that a Press Council is a suitable mechanism for that role. Regardless, a Press Council is yet to be a reality in Malaysia despite it was first proposed in the 1970s which is much attributed to disagreements among its stakeholders on its independence and its regulatory framework. In this research, the researcher had conducted several case studies on the existing regulatory models comprises of self-regulatory, statutory, and co-regulatory. In pursuance to this, the researcher has selected several existing press and media councils that employs those respective regulatory models as the benchmark to the study including but not limited to; the United Kingdom’s press regulatory framework, the Press Council of India, and the Danish Press Council as part of this thesis research objective. In addition to that, the researcher also looks into local regulatory bodies such as the Malaysian Communication and Multimedia Commission, Advertising Standards Advisory Malaysia and others. This research employs a qualitative method, which predominantly relies on library based and semi-structural interviews approach to achieve the above objectives. This study found that there is a crucial need to establish a press council in Malaysia and identified that a co-regulatory model is an ideal framework for the Council. The study also concludes that there are several law reforms need to be done to pave a way for its establishment.

Discussion on the foundations of constitutionalism and the values underlying the constitutional provisions has been nuanced with great diversity across multitudes of jurisdictions. Accordingly, works on the defining aspects of constitutional interpretation have become sparse. As such, identifying a coherent jurisprudence for constitutionalism remains elusive in legal philosophy, let alone for constitutional interpretation. The Malaysian judicial philosophy is not spared from this phenomenon. In fact, the Malaysian court judgements demonstrate towards the rising trend of incoherence. In view of this reality and challenge, in search of best practices, it becomes even more daunting to objectively compare principles of constitutional interpretation in Malaysia from across the globe. This thesis seeks to fill the void on this subject, particularly in the context of the Malaysian constitutional interpretation, by examining the defining aspects in interpreting a constitution from which general principles that best promote coherence can be developed. Based on this foundation, this thesis evaluates coherence in the judicial philosophy of the Malaysian courts in interpreting the constitutional provisions, particularly on the defining aspects of constitutional interpretation. This evaluation is significant in order to identify the root cause, which is most crucial in any effort to propose a sound solution. This is done based on doctrinal method through library-based research by analysing Malaysian Federal Court judgments to reflect on the trends in constitutional interpretation to identify the approaches commonly applied in Malaysia, and further unearth the constitutional jurisprudence underlying a particular approach in a judgment. Noting that approaches for different areas of constitutional issues differ from each other, the reasons for the differences will be further examined in this thesis in relation to its coherence. Ultimately, this thesis proves that coherence in judicial philosophy is primarily shaped by the defining aspects, which are the language aspect and the worldview aspect, from which key concepts or fundamental principles of interpreting constitutions are formed and upon which various interpretive methods are anchored. Thus, in the effort to strive towards coherence, this thesis proposes to revive the established principles based on such defining aspects to withstand this challenging era due to the rapid development of law and the society’s ever-changing expectation.