CROWDFUNDING AS AN ALTERNATIVE FINANCING FOR SMES AND START-UPS IN MALAYSIA: AN INTRODUCTORY NOTE FROM THE LEGAL PERSPECTIVE

Small and Medium Enterprises (SMEs) and start-ups have consistently contributed to a country’s tax revenue, technology advancement, and innovation, job creation as well as economic outputs. However, they are facing great challenges or setbacks in securing funding from external sources. To overcome the fundraising issues or financing lacuna, many entrepreneurs have resorted to crowdfunding as an alternative source of their equity or debt financing. Crowdfunding, being a significant aspect of the recent fintech innovation and digital disruption, has been put under the spotlight and received high expectations from all stakeholders to be an effective solution to SMEs and start-ups. This article would be focusing on crowdfunding with financial returns, namely, equity crowdfunding (ECF) and crowdlending/peer-to-peer lending (P2P). The research methodology employed by this article is primarily based on the literature review of various legislations, scholarly articles, research papers, government policies, books, and other publications concerning the ECF and P2P from different disciplines. At the end of this article, the author opined that crowdfunding could be a useful alternative financing method for SMEs and start-ups in Malaysia as it helps the capital formation and bridges the financing gaps for them. Countless benefits could also be offered to the society and economy at large with the proper crowdfunding regulations in place. Upon reviewing the Guidelines on Recognised Markets issued by the Securities Commission Malaysia (Guidelines), the author argues that the Guidelines is a carefully crafted and balanced regulation, albeit there is room for improvement.

‘ISOLATED IN OUR OWN NEIGHBOURHOOD’: ANALYSIS ON THE PROPOSAL TO REGULATE PEER-TO-PEER ACCOMMODATION SERVICES IN MALAYSIA

Peer-to-Peer Accommodation services (P2PA) are mushrooming worldwide due to the expansion of digital services and Internet access. Since P2PA services operate fully online, small establishments utilise disruptive technology and surpass traditional hoteliers by surprise. In the first part of this article, we examine the problems caused by P2PA for ‘playing on an uneven field’, avoiding necessary taxes, skipping regulatory and safety requirements, and causing loss of tranquillity to the neighbourhood. Due to these problems, a proposal was moved by the government to regulate P2PA in Malaysia via a self-regulatory guideline, as analysed in the second part of the article. However, due to its non-binding status, the proposal will arguably lead to irregularities in regulatory mechanisms at the state level when enforced. P2PA hosts were asked to comply with regulatory requirements similar to hoteliers, but the platform providers have arguably avoided any P2PA related liability nor responsibility as they operate offshore. Applying qualitative research methods via content analysis and semi-structured interviews, the article concludes by proposing a legal framework to regulate the P2PA platform providers, including hosts and agents, which is deemed timely and necessary for Malaysia to safeguard the interests of both tourists and stakeholders.

SUPERIOR RESPONSIBILITY UNDER THE ROME STATUTE AND ITS APPLICABILITY TO CONSTITUTIONAL MONARCHY: AN APPRAISAL

The doctrine of superior responsibility has been embedded in Article 28 of the Rome Statute of the International Criminal Court, which enunciates the responsibility of both military commanders and civilian superiors. Although constitutional monarchs are civilians entrusted with the position of commanders in chief, there are States that opposed accession to the Rome Statute on the simple ground that their respective monarchs could be indicted and punished under the Rome Statute. The main objective of this paper, therefore, is to examine whether constitutional monarchs could be responsible under the doctrine of superior responsibility. The paper focuses on the analysis of the elements of superior responsibility by referring to the authoritative commentaries of Article 28 and constitutional practices of three selected constitutional monarchies: the United Kingdom, Japan, and Malaysia. The paper finds that constitutional monarchs could not be held responsible because they have to act on the advice of the government and do not possess the effective and operational control over the armed forces as required under the Rome statute.

ASSESSING THE HUMAN RIGHTS COMMITTEE’S GENERAL COMMENT NO. 37: IS THE INTERPRETATION SUFFICIENT TO PROTECT THE FREEDOM OF ASSEMBLY IN TIMES OF PUBLIC HEALTH EMERGENCY?

Implementing the right of peaceful assembly in the midst of a pandemic seems dangerous, especially when the disease is highly infectious. The United Nations Human Rights Committee then adopted General Comment No. 37 which explains the scope of protection of Article 21 of the International Covenant on Civil and Political Rights 1966. This writing is normative research on the interpretation made by the Human Rights Committee and assessing the sufficiency of the said interpretation in protecting the freedom of assembly in the midst of public health emergencies. It is found that the Human Rights Committee has conducted a thorough method in interpreting the protective scope of Article 21 of the ICCPR, whereas the General Comment No. 37 provides a vast protective scope, including a thorough guideline on how to conduct the freedom of assembly in times of public health emergency.

LEGAL FRAMEWORK OF ARREST AND POST-ARREST SAFEGUARDS: A COMPARATIVE ANALYSIS AS TO THE LAWS OF BANGLADESH, INDIA, AND THE UNITED KINGDOM

The rights of arrested persons during arrests and after arrests are significantly important because the act of arrest restricts persons’ rights to liberty that are protected by the laws of all countries including Bangladesh, India, and the United Kingdom (UK). These restrictions have raised several concerns over the years. While compliance with the laws on arrest is mandatory, the actual implementation of these laws is still questionable. There are obvious gaps between the provisions of the existing laws and the actual practice. Past research also suggests that the legal structure of arrest and post-arrest in Bangladesh should be revised in comparison with the criminal justice systems of other developed countries where rights of those arrested are safeguarded. However, past research has not compared other jurisdictions, and neither is there any research conducted on best practices of other jurisdictions. As such, this article analyses the various aspects of arrest and post-arrest safeguards that exist in all the three jurisdictions, and identifies good practices to safeguard the arrested person more effectively. The objective of identifying good practices from India and the UK is to use them as a paradigm for the criminal justice system of Bangladesh. This is done through the application of a qualitative research methodology using content analysis as the approach to analyse primary and secondary sources. The comparison includes discussion on the right to know the reason of arrest, right to be brought to court, right to be free from torture, right against self-incrimination, right to be medically examined and the remedial aspect of ‘habeas corpus’. These rights that are significantly related to the rights to life and liberty, fair trial and to be presumed innocent until proven guilty. The findings show that the UK’s legal framework is far better than the ones in India and Bangladesh. It is suggested that the protection provisions enshrined in the existing criminal justice system and the current legal structure should play an important role through specific court rulings. Further, it is asserted that the police department should take accountability by incorporating the necessary changes into the existing legal structure to ensure justice prevails. The paper ends with a recommendation that monetary compensation, and a physical exemplary punishment should be imposed to ensure the safeguards of individual, both at the time of arrest and post-arrest are upheld.

ROYAL WAQF IN PERAK: A LEGAL AND HISTORICAL ANALYSIS

This paper analyses the legal and historical development of waqf made by Sultan Idris Murshidul' adzam Shah in Perak (1849 to 1916). There are many untraceable, lost, and perished waqfs in Malaysia. However, Sultan Idris’s waqf is an exception which still exists since its establishment in 1917. As such, this research intends to explore its sustainability factors. The research methodology used is the doctrinal and non-doctrinal research methods. The doctrinal method is used to analyse the enactments, government gazettes, audit reports, journal articles, and history books. Meanwhile, the non-doctrinal legal method, namely semi-structured interview, clarifies findings and information gathered from various documents. The research is essential as there is a lack of comprehensive research done on waqf made by the Sultans or the Head of State in Malaysia. The researcher finds that the waqf was an established under written legal instrument; the waqf by Sultan Idris was made based on the English law of trust, but the spirit and principles of waqf to permanently benefit the beneficiaries remain intact; the appointment of the Sultan's descendants as the trustees alongside a committee proved to be crucial for the sustainability of the waqf; and there was check and balance process through legal provision. This research provides a clearer picture of waqf practice before the establishment of Perak's State Islamic Religious Council and evidenced the Sultan's contribution towards developing and protecting Islam.

PROTECTION OF ELDERLY PARENTS IN BANGLADESH: AN EVALUATION OF RELEVANT GUIDELINES

This study aims to evaluate the provisions concerning the protection of elderly parents in the international and national legal framework and also in major religious scriptures in the context of Bangladesh. Based on the secondary sources of information, the study has observed that in spite of ample provisions, parents are not fully protected from abuse. Besides international conventions, the Parents’ Maintenance Act (PMA) 2013 and Islamic principles concerning parents are the key sources providing sufficient guidance for the protection of elderly parents in the Muslim majority Bangladesh. Although there are provisions of punishment for failing to provide parents’ maintenance in the existing law, very little improvement is observed concerning their maintenance. This study suggests the incorporation of the provision to enforce children to return the property of their parent, in the event they failed or declined to take care of their elderly parents. The study has emphasized the need to increase awareness pertaining to maintenance and related laws amongst citizens through mass campaigns. The further initiative should be undertaken to ignite the young generation with religious and moral values. Early implementation of the PMA’s draft rule is suggested for the assurance of parent’s maintenance in Bangladesh.

WHY CSR IS RELEVANT TO ENVIRONMENTAL PROTECTION? A STUDY OF CSR PERFORMANCE ON INDONESIAN LIMITED LIABILITY STATE-OWNED COMPANIES

Nowadays, companies are not only required to provide information on financial accountability but also about corporate performance related to environmental and social activities to promote shareholder values and sustainable practices. In Indonesia, corporate social and environmental responsibility is an emerging and relatively new concept in terms of practices, economic and political aspects. This paper aims to investigate the performance of the social and environmental responsibility of three limited liability state-owned companies in Indonesia and covering the company’s reports, namely annual report, CSR report, and sustainability report. The study concluded that there is a significant relation between CSR activities, social and environmental protection on Indonesian limited liability state-owned companies, both in relation to legal obligation, as well as relating to company’s commitment to show environmentally good behaviour through CSR activities.

CONFIDENTIALITY CLAUSES IN INVESTOR-STATE CONTRACTS FOR THE PROTECTION OF TRADE SECRETS AFTER PROMULGATION OF THE INDONESIAN ACT ON PUBLIC INFORMATION DISCLOSURE

A confidentiality clause is a clause in investor-state contracts which is in the operative part of the contract to guarantee adequate protection of the trade secrets of the contracting parties. This article argues that there is a need to change the current practice where investor-state contracts in Indonesia utilizes broadly defined confidentiality clauses as a means to protect trade secrets in international business transactions. This is because a broadly defined confidentiality clause is contradictory to the provisions of the Act on Public Information Disclosure (APID). APID is aimed mainly at providing public information disclosure. The public information includes public contracts, such as investor-state contracts. Therefore, a new model of the confidentiality clause is needed for the protection of trade secrets as intended by the Act on Trade Secrets (ATS) and contract law as well as public information disclosure as intended by APID. This article employs doctrinal legal research. The research utilized, primary, secondary, and tertiary legal authorities. The primary legal material intensively used in this article consists of mandatory-primary legal authorities, in the form of statutes and contracts. The contracts used are the investor-state contracts of Aceh Province, Indonesia. The finding shows that a new model of the confidentiality clause can be created by accommodating both the interest of the state for providing public information disclosure based on APID and the interest of investors for the protection of trade secrets based on ATS and contract law. Investor-state contracts are a specific type of contract which has specific characteristics that apply to both private law and public law. They are different from purely international commercial contracts which only apply private law. Investor-state contract drafters need to be aware of this difference and provide a more balanced confidentiality clause in the contracts.

THE ENFORCEMENT OF THE WHIPPING SENTENCE AS PART OF THE JINAYAH LAW IN ACEH PROVINCE, INDONESIA

The purpose of this article is to determine the factors that hinder the implementation of the whipping sentence under Aceh’s Jinayah Qanun and the efforts made in overcoming these obstacles. The method used is empirical juridical, using data from the field as the main source. This is done by collecting data from several regions in Aceh, followed by interviews with the prosecutors as the executor in Sharia Court for the Jinayah case. The results show that the execution is the final stage of the judicial process and is expected to achieve the objectives of justice, but there are some cases of jinayah which are not fully executed due to some obstacles that arose. The main obstacles are lack of funding, human resources, and coordination among subsystems in the jinayah justice. The lack of funding will result in delays in implementing whipping punishment so that when it is carried out, it is difficult to bring the convicted person into prison. The efforts made to overcome this problem are by carrying out whipping with minimum funding, developing human resources, and coordinating with the local government to support this execution process.