Papers by Duryana Mohamed
Development in information communication technology (ICT) has created new ways for everyone to in... more Development in information communication technology (ICT) has created new ways for everyone to interact and conduct business. It is no doubt that Internet is one of the most popular mediums of communication in cyber environment. However, this medium can also create more opportunities to people to commit various types of offences and wrong doings. The offences include cybercrimes, violation of privacy, defamation, pornography and insult on Islam. Not only that, the marriage institution is also at stake when a husband can just send an SMS or email to divorce his wife. For Muslims, the above offences and wrongdoings are unethical and against Islamic value. Thus, this paper will discuss some legal issues on the above offences and wrong doings by referring to the relevant laws and cases. The objective of this paper is to highlight that Islamic value is very important and complying with the laws (civil and Islamic) will help to prevent crimes in the cyber environment.
International journal of social science and humanity, 2013
Gathering of information in the internet environment is very challenging since the information ma... more Gathering of information in the internet environment is very challenging since the information may be available at different places. There are many methods to gather information and one of it is by way of discovery of document. This discovery process is adopted when preparing one's case for a full trial. It is used to gather information which is not adequate and the party needs to get relevant documents from the opposite party as to complete his case. The opposite party in the suits may be an individual, company, government agency or its servant. When the court order for discovery the opposite party is expected to comply with it but in some cases, the opposite party refuses to do so citing privacy issue as his or their reason for refusal. The issues are how to effectively implement discovery against them and how to balance between the right to discovery and right to protect the privacy of their clients. What is actually their liability towards the plaintiff and what are the consequences of failure to comply with discovery order. This paper will discuss and analyse the above issues by presenting laws and court decisions pertaining to discovery of documents as practiced in Malaysia and several other countries.
Indian journal of science and technology, Dec 30, 2016
Privacy right is the fundamental right recognised by the 1948 United Nation Declaration of Human ... more Privacy right is the fundamental right recognised by the 1948 United Nation Declaration of Human Rights (UNDHR), the International Convenant on Civil and Political Rights (ICCPR) and in many other international and regional treaties. While right to be forgotten (RTBF) was recognised in 2014 when the European Court of Justice (EUCJ) made a decision in the
Issues on induced abortion and abandonment of fetus are not seemed only to trigger Malaysians but... more Issues on induced abortion and abandonment of fetus are not seemed only to trigger Malaysians but the world at large. Such issues are not seemed to be new but went back to the past several decades i.e. before the recognition of rights of unborn babies to be protected and safeguarded by the United Nations Declaration of the Rights of the Child in 1959. This is evident when The UNDRC 1959 declares that the child needs special safeguards and care, including appropriate legal protection, before as well as after birth. Unborn babies can be simply and generally understood as babies who are conceived and not yet born regardless of the terms of pregnancy. This paper mainly seeks to examine rights of unborn babies under Islamic law (the Shari’ah). Under Islamic law, rights are well defined and guaranteed to all categories of human beings regardless of their stages of life, so long as it is within the purview of the Sharia’h. As regards babies and children, protection of their rights begins at the very initial stage of their life i.e. before their birth. The research is based on the hypothesis that Islam is a comprehensive way of life and govern comprehensive rules on child protection. Examination extends to the law in Malaysia especially on the issue of adequate protection of rights of unborn babies. The research will adopt a qualitative methodology. The findings of the research will provide a strong theoretical framework on rights of unborn babies under Islamic law, so as to provide a sample for protection of rights of unborn babies. Finally, the paper will suggest improvement to the law in Malaysia where relevant and appropriate.
IIUM Press eBooks, Jun 1, 2011
Islamic law emphasises on justice and fairness in solving disputes. In order to achieve this obje... more Islamic law emphasises on justice and fairness in solving disputes. In order to achieve this objective the legal fraternity has developed a procedural law to successfully executing the fairness. Since Islamic law is comprehensive and applicable at anytime the fairness is to be exercised regardless of new development in law and technology. In Islamic law, evidences in electronic formats or cyber evidences are acceptable in certain cases if they are authentic and reliable. Although these evidences carry different name from conventional evidence but their characteristics are similar. They are also very fragile and could easily be altered. Therefore the issues of authenticities are paramount for electronic evidences. This paper will discuss cases that accept electronic evidences in both Islamic and Malaysian law. The discussion will also include the procedure to accept electronic evidence in Malaysian courts and few challenges in establishing the admissibility of electronic evidence.
Berita palsu dan penyelesaian undang-undang MEDIA berperanan penting dalam menyampaikan maklumat ... more Berita palsu dan penyelesaian undang-undang MEDIA berperanan penting dalam menyampaikan maklumat kepada masyarakat. Kini melalui internet, peranan media semakin mudah, namun semakin mencabar. Kewujudan internet membantu mempercepatkan proses penyampaian berita dan segala maklumat lama serta baharu. Media sosial juga berperanan menjadikan masyarakat Malaysia lebih peka kepada keadaan sekeliling dan mengeratkan hubungan sesama individu, namun masyarakat harus lebih berhati-hati kerana ada berita palsu direka semata-mata untuk menarik perhatian netizen dan menjadi isu hangat atau trending. Situasi ini sangat membimbangkan kerana ada berita yang bertujuan mewujudkan kebencian dan provokasi dalam kalangan masyarakat berbilang bangsa. Keadaan ini sangat berbahaya kerana Malaysia mungkin hancur dan tidak lagi dihormati di mata dunia dan akibatnya, rakyat akan menanggung rugi. Elak sengketa kaum Pada masa sama, pemimpin negara juga mengingatkan rakyat supaya mengelakkan persengketaan antara kaum dan hidup dalam keadaan aman dengan berbuat baik dan saling menghormati sesama masyarakat. MEDIA sosial juga berperanan menjadikan masyarakat Malaysia lebih peka kepada keadaan sekeliling dan mengeratkan hubungan sesama individu.-Foto hiasan
Apologising has always been viewed as an important social conduct that allows for closure in disp... more Apologising has always been viewed as an important social conduct that allows for closure in disputes. The aftermath of disputes and conflicts are usually fuelled with feelings of anger, injustice, mistrust and a tendency to sue. Apologies can be made through statements of regret and empathy, acceptance of responsibility as well as proper explanation of the events leading to the mishap, hence, the severity of the aftermath situations can be significantly reduced. Further, studies have shown that apologising after a medical mishap can also be effective in a dispute resolution mechanism by healing and preserving relationships as well as triggering settlement negotiations. However, medical practitioners are rather hesitant to apologise after the occurrence of adverse events fearing that this may be treated as an ‘admission of guilt’ and any statements made at this point may be admissible in judicial proceedings as evidence of fault or liability. In Malaysia, the adverse effect of ‘medical apology’, became apparent from the outcome of two medical negligence cases, namely, Gurmit Kaur a/p Jaswant Singh v Tung Shin Hospital & Anor[2012] 4 MLJ 260; [2013] 1 CLJ 699 and Norizan bt Abd Rahman v Dr Arthur Samuel [2013] 9 MLJ 385. In both of these cases, the apology given by the medical practitioners was construed as admissions of guilt and used in establishing liability. Thus, the negative implications of apology needs to be addressed in Malaysia so as to preserve the immense benefits of apology, particularly, in medical negligence disputes. Lessons can be learned from several jurisdictions around the globe that have enacted ‘Apology Laws’ to explicitly preclude ‘medical apologies’ made after adverse events from being treated as admission of fault or as evidence to prove liability. This has been considered beneficial in preserving the effectiveness of apologies within the parameters of a protective legislation.
Cyberstalking has no specific statutory definition. Sometimes the word harassment is mentioned wh... more Cyberstalking has no specific statutory definition. Sometimes the word harassment is mentioned when defining cyberstalking. This explains why cyberstalking and cyberharassment have been used interchangebly in this paper. Cyberstalking started when Internet becomes one of the most important mediums of communication in social networking. Through Internet or social media, people or cyberstalker started to follow and peep into other people activities and life styles. Later, they became obsess and trying to stalk or harass their potential victims by using various means. In most cases, cyberstalking and cyberharassment are considered as criminal offence due to their nature and bad implications to the victims. Some victims suffered depression and even committed suicide because the effect was unbearable. Their privacy have been violated and they are not able to lead a normal life. Hence, many countries such as the United States, Australia, the United Kingdom and Singapore have enacted specific law to combat cyberstalking or cyberharassment. However, the crime is still rampant particularly cyberstalking on women and children. This is based on research conducted and statements made by the relevant authorities. In Malaysia, there is no specific law and punishment on cyberstalking or cyberharassment. The laws are scattered. Previous cases on harassment were mostly involved sexual harassment and the court decisions showed that the cases were decided based on various laws such as Penal Code and the Employment Act 1955. Hence, this paper seeks to examine cyberstalking or cyberharassment and its implications to the victims, the adequacy of the existing laws in dealing with the crimes and whether there is a need to have a specific law to curb cyberstalking or cyberharassment activities. For reference, the author will refer to cyberstalking or cyberharassment laws and cases in the abovementioned countries as well as other relevant international laws. Keywords: cyberstalking, cyberharassment, crimes, laws
In civil procedure, parties are allowed to gather relevant documents before the trial. The partie... more In civil procedure, parties are allowed to gather relevant documents before the trial. The parties may use any of the four methods namely, Discovery and Inspection of Documents, Interrogatories, Admission and Anton Piller Order. These methods are provided by the Rules of Court 2012 (Malaysia). While in the UK Civil Procedure Rules 1998 methods of gathering documents include depositions and exchange of witness statements. However, in choosing the most appropriate method the parties need to consider whether they are able to satisfy the requirements for method to be used. In discovery process, the plaintiff or the party needs to satisfy the court that the documents to be discovered are relevant and they are in the possession, custody or power of the opposite party. Meanwhile the opposite party is expected to comply with the court order for discovery by providing relevant documents or information. This paper attempts to discuss the process of discovery in Malaysia and United Kingdom by studying how the process works against the Internet Service Providers (ISPs) in both countries. The discussion will also include types of documents or information, which are discoverable and not discoverable from the ISPs and the effect of non compliance with the court order. For this purpose, the author will refer to the relevant laws, procedures and decided cases available in both countries.
Development in technology has created many opportunities for the Muslims to explore and acquire k... more Development in technology has created many opportunities for the Muslims to explore and acquire knowledge. Some Muslims are conscious when using the technology while some others are behaving inappropriately. The later groups are those who commit unlawful act which sometimes across the boundaries. These offences may cause harm not only to individuals but the country as a whole. Among the offences that have affected the society include internet fraud, internet pornography, unauthorised access to others computer data, internet defamation, cyber terrorism and many others. The Government of Malaysia has made several efforts to curb these activities from spreading. One of them is by introducing cyberlaws in addition to the existing laws of Penal Code, Defamation Act and other relevant statutes. However, statistics from the Cyber security and Royal Malaysian Police show that cyber offences are still increasing and causing threat not only to the society but also to the economic, political and security of the country. This is proven when the statistics of the Royal Malaysian Police recorded that the highest reported case in 2010 was crimes related to misuse of ATM and the highest loss amounting to RM20,786,906.62 was caused by syndicate activities on banking. Several court cases have also shown that those suspects are caught and charged under the above laws or known also as ‘man-made laws.’ Some of them are released and acquitted while some others are fined and jailed or both for certain period of time. An example can be seen from a case involving a blogger who posted defamatory statements on the internet against Datuk Seri Dr Rais Yatim , an Information, Communication and Culture Minister. The blogger was ordered by the High Court of Kuala Lumpur to pay RM300,000 to Dr Rais for the offence committed. This case shows that when a person has made wrongful statements against another person and the information was distributed over the internet to others, the victim may sue that person and claim for damages. The same also applies in Islamic law where a Muslim is prohibited from spreading rumors and back biting. However, there is no specific Shari‘ah provision on this matter. Thus, this paper will discuss the matter by looking at the types of cyber offences, how the Shari‘ah law categorised those offences, the position of those offences in the Shari‘ah statutes (if any) and relevant punishment to be imposed on the offender. Lastly, the challenges in implementing the Shari‘ah laws in cyber related cases in Malaysia will be highlighted and further analysed. (416 words)
The Duty of Candour requires healthcare providers to be open, honest and transparent with patient... more The Duty of Candour requires healthcare providers to be open, honest and transparent with patients and their families when the treatment given results in an adverse outcome. Being open include the offering of explanation, apology and remedial actions. Although openness, transparency and candour are positive attributes for all healthcare organisations striving towards enhancing patient safety and professional discipline, fear of litigation is the main barrier for the implementation of such duty within the organisation. Thus, in reaping the benefits of the duty of candour, it is imperative that the content of the duty is developed within a statutory regime. This will enable provisions relating to the scope of the duty, the triggering circumstances, relevant requirements, legal protection and implications are being clearly spelt out. The introduction of the statutory duty of candour by some jurisdictions has encouraged openness in the reporting of adverse events and has also effectively managed the aftermath of clinical accidents. Embracing a learning culture by reporting adverse incidents can allow lessons to be learnt quickly and consequently, patients can be protected from future harm. However, to meet the requirements of the statutory duty of candour, engagement at all levels within the health care organisations need to be present in areas involving disclosure, reporting, reviewing and learning. Nonetheless, the imposition of the statutory duty of candour on healthcare organisations, particularly, in Malaysia, will act as catalyst for them to improve their systems, enhance patient safety initiatives as well as secure the culture of openness within the organisation.
The role of apology in resolving conflicts and preventing litigation has gained much prominence. ... more The role of apology in resolving conflicts and preventing litigation has gained much prominence. Particularly, in civil litigation, apology has the potential to promote negotiations, generate settlements, mitigate and absolve liability as it can be used as an effective tool at various stages during the civil dispute resolution process. For civil disputes involving medical practitioners and patients, apologies have the ability to defuse the spur of litigation and restore the relationship of trust and confidence between them. This is because apologies give recognition to the error that has occurred and reflect a sincere sense of remorse by the medical practitioner for causing the harm. Nevertheless, medical practitioners fear that apologies made will be interpreted as an admission of guilt and consequently, increases the possibilities of lawsuits causing negative effects on their medical indemnity coverage. In order to promote open disclosure standards amongst medical practitioners, s...
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Papers by Duryana Mohamed