Khairil Azmin Mokhtar | International Islamic University Malaysia (original) (raw)

Chapters in books by Khairil Azmin Mokhtar

After political reform in 1998 Indonesia has made many efforts and significant progress to establ... more After political reform in 1998 Indonesia has made many efforts and significant progress to establish a truly democratic government. This paper highlights some progressive democratic changes in Indonesia since 1998. The paper is based on doctrinal research with qualitative method. The result of research shows that there are some important democratic changes have been achieved. Three matters shall be highlighted in this paper. Firstly, the principle of democratic state based on the rule of law has been formulated clearly in the 1945 Constitution after amendment. The experience of bureaucratic-authoritarian system in Soeharto regime has given a meaningful lesson for Indonesia to create a more democratic country based on rule of law. Secondly, Indonesia had successfully gained the democratic transition which proved by the successful general elections in 1999, 2004 and 2009. This successful democratic election has made Indonesia been recognized as one of the largest democratic country in the world. Thirdly, despite the events and developments mentioned earlier some political experts argue that even though Indonesia’s democracy is on the right track, it is a muddled democracy because the battles among the political actors create stagnancy to political and economic developments. Politicians, civil society and the military are obviously the important elements which may influence the consolidation of democracy in Indonesia. It is concluded that in term of consolidation of democracy, further steps need to be taken to continue the process consolidation towards becoming a mature democracy.

After the 2008 General Election, Malaysians were witnessing dynamics of a federal system of gover... more After the 2008 General Election, Malaysians were witnessing dynamics of a federal system of government after being ruled by
the same coalition parties of Barisan Nasional (National Front) since Independence. When the coalition of Pakatan Rakyat
(People’s Front) won five states in the 2008 General Election, many intergovernmental conflicts occurred. Pre-2008, the conflict
was confined to family matters such as legal effects of conversion to Islam in a non-Muslim marriage. Post 2008, the federal
conflict entered the public law sphere involving a legal tussle between the federal government and the state of Kelantan in the
petroleum royalty issue. These federal conflicts have been highlighted in the mass media, catapulting the public from being
ignorant about federalism to being curious as to which level of government actually has the power to manage the issues raised. A
quantitative study was conducted to find out Malaysians’ level of knowledge, understanding, acceptance and perception towards
the federal system in the country. The paper discusses some of the outcomes of the study.

The research aims at evaluating the role of the Constitutional Court in consolidating democracy i... more The research aims at evaluating the role of the Constitutional Court in consolidating democracy in Indonesia from 2003 to 2013. Examinations are made on the court’s decisions regarding judicial review of acts, disputes concerning jurisdiction among state organs and disputes on the results of elections. The research is a doctrinal legal research and applied law research. The research also involves a historical, statute, and comparative law approach. The result of the research shows that the Constitutional Court has played a significant role in the consolidation of democracy in Indonesia since 2003 to 2013 through its decisions in judicial review of acts and resolving election disputes. However, Constitutional Court hasn’t made significant impact in the promotion of democracy relating to disputes on jurisdiction among the state organs. It is believed that the failure of the Court to consolidate democracy through its decisions regarding dispute concerning jurisdiction among state organs could be attributed to two main reasons. The first is due to unclear concept of subjectum litis of the petitioners to have legal standing in the Constitutional Court, and the second is the lack of understanding of the subject matter jurisdiction (objectum litis) of the Court. In spite of the misgivings the Court is still relevant and has certain contributions towards democracy. Regarding the problems faced by the Constitutional Court, there are some important recommendations may be proposed, namely, first, there should be a serious evaluation on the design of the Constitutional Court relating to structure, scope of authority and procedure. Second, there should be a more clear definition of the state organs and the meaning of constitutional disputes on jurisdiction regarding disputes on jurisdiction among the state organs. Third, There should be a better requirements of being judges and external supervision of the judges of the Constitutional Court. Therefore, amendment of the 1945 Constitution and the Constitutional Court Act is necessarily needed.

Slavery and forced labour have been accepted to be against humanity. These practices are expressl... more Slavery and forced labour have been accepted to be
against humanity. These practices are expressly
prohibited by the Federal Constitution in Malaysia.
Although the prohibition of human trafficking is not
expressly mentioned in the Constitution, it could be
regarded as one of the most heinous crimes according
to the letter, intent and spirit of the constitution. This
is related to the fact that human trafficking is much
associated with modern day slavery and therefore is
against the ideology of the Malaysian nation and
acceptable norms of the international community and
Islamic law and Shariah values. The paper will
explore the available international human rights and
the laws governing human trafficking in Malaysia.
The research is based on the current situation and
cases of human trafficking in Malaysia.

Papers by Khairil Azmin Mokhtar

I am Umi Nadirah from IIUM TV, the producer of Political Insights. The purpose of this letter is ... more I am Umi Nadirah from IIUM TV, the producer of Political Insights. The purpose of this letter is because we are keen to invite you as the guest for our talk show. For this time, we are going to have our very special episode-The Proclamation of Emergency.

Persons with Disabilities (PWD) have been largely being discriminated against and denied of their... more Persons with Disabilities (PWD) have been largely being discriminated against and denied of their rights. They face difficulties in having access to education, employment, accessibility and consequently jeopardized their right to live and participate in the society. The Convention on the Rights of Persons with Disabilities (CRPD) together with its Optional Protocol have been established in order to improve their livelihood so that the community could enjoy full and equal fundamental freedoms together with respect for their inherent dignity. The CRPD has changed the model of disability from medical/charity model to human rights-based model. The change of approach has positioned disability as an important dimension of human culture. It also ensures the PWD community is treated with dignity and equality. The CRPD has been ratified by most UN Members States including Malaysia. The country has signed and ratified the Convention in 2008 and 2010 respectively. In order to fulfil the international commitment, Malaysia has enacted the Persons with Disabilities Act 2008. Despite the ratification of CRPD and the enactment and amendment of relevant domestic laws to fulfil its obligations under the convention, Malaysia still hasn't fulfilled its responsibility properly. The monitoring mechanism for instance, as required to be created in each country under CRPD, has not been established by the government. Among the findings of this research are to propose amendments to domestic laws and policies and the establishment of systematic institutional implementation and independent monitoring mechanism. Experience from countries such as the United Kingdom, Australia and Ireland, which been regarded as role models in this area, would provide valuable guides and lessons to Malaysia. This research deals with doctrinal and jurisprudential discussions followed by analytical studies of laws, policies and institutional framework through primary and secondary legal and non-legal documents. It is qualitative research incorporating the study of applied law and the socio-legal dimension of the issues. Semi-structured interview and participant observation has been conducted. The outcome of this research includes various suggestions and recommendations on the improvement of legal, policies and institutional frameworks that can promote and protect the rights of PWD in Malaysia

Constitutional review, May 31, 2022

This paper sets out to examine the role of the court and the Islamic religious authorities in fig... more This paper sets out to examine the role of the court and the Islamic religious authorities in fighting religious extremism and terrorism in Malaysia. The judiciary has obligations to protect the people, to guarantee freedom and to dispense justice. It is the constitutional duty of the Islamic religious authorities to preserve the religion, to safeguard the Muslim and to insulate the teachings of Islam in Malaysia. Under the federal constitutional framework of the country, civil court and federal government do not deal with religious matters because it comes under the jurisdiction of Syariah laws and Syariah court of the states. However, in order to combat religious extremism and terrorism under the pretext of Islam, the demarcation of constitutional power and jurisdiction between federal and state governments is obscured. The federal government which has exclusive legislative and executive powers over criminal matters, public order and security have to collaborate with the Islamic religious authorities of the states in encountering threats coming from religious extremists and terrorists' groups. Although laws, policies, and agencies relating to internal security, public order and crime are under the jurisdiction of the federal government, the ideological, theological, and philosophical dimensions of religious extremism and terrorism

Travelling by airplane, which is less time consuming and almost a necessity for long distance, is... more Travelling by airplane, which is less time consuming and almost a necessity for long distance, is commonplace nowadays. The transportation by air includes all types of passengers including persons with disabilities. Freedom of movement is proclaimed in international treaties, Federal Constitution of Malaysia and disability-related laws. For the purpose of realizing right to travel, Malaysia Aviation Commission (MAVCOM) has enacted Malaysian Aviation Consumer Protection Code 2016 to strengthen the consumer protection for persons with disabilities. In this paper the legal position of international and domestic laws which are related to and available for airline passengers with disabilities as well as the newly promulgated Malaysian Aviation Consumer Protection Code 2016 are evaluated. This study comes up with the finding that the code enhances legal protection for disabled airline passengers from being discriminated and confers benefits to all stakeholders in upholding their rights

Persons with disabilities, either he is born with it or occur at some stages of his life due to f... more Persons with disabilities, either he is born with it or occur at some stages of his life due to factors such as injury and disease, is still a person with the same legal status and rights as individuals who do not have any disability. This paper, through conceptual and doctrinal analysis, explores the similarities and differences between human rights based's approach and Shariah’s approach towards people with disability. People with disability have equal right to live and to have a noble livelihood. The Convention on Rights of People with Disabilities of the United Nations has adopted the concept of human rights-based approach which requires people with disability to treated in a proper way. The convention believes that this group should not be treated differently and given similar opportunity to be developed and progressed as any other human being. On the same note, Islam sees disability as morally neutral. It is seen neither as a blessing nor as a curse. Accordingly, disability accepted as being an inevitable part of the human condition. It is simply a fact of life which has to be addressed appropriately by the society of the day. In Islam people with disabilities are not being arbitrarily segregated and being discriminated unjustly. They should give equal opportunity to progress and develop their potential just like any other human being. The final analysis shows that there is harmonious interpretation between Western and Islamic jurisprudence to protect this minority group

Marginalization and discrimination of Persons with Disabilities (PWD) by a certain segment of soc... more Marginalization and discrimination of Persons with Disabilities (PWD) by a certain segment of societies are common problems in many countries mainly due to lack of legal measures in addressing the problems. This is one of the main factors that leads to the creation by the UN of the Convention on the Rights of Persons with Disabilities and the Optional Protocol (UN CRPD) in 2006. The treaty is significant due to various reasons one of them is because it shifts the promotion and protection of the rights of people with disabilities from medical or charity model towards social model which concentrates on human rights based approach. This approach has become recent phenomena in international law which have been adopted by jurisdictions all over the world. In order to fulfill its international obligation in this regards Malaysia had become a signatory of the UN CRPD in 2008 and later ratified it in 2010. The commitment became the impetus for the enactment of the PWD Act 2008. Malaysia, however, has made reservations on two main articles of the CRPD namely Article 15 (freedom of torture or cruel, inhuman or degrading treatment or punishment) and Article 18 (liberty of movement and nationality). It also does not sign the Optional Protocol which allows individual and groups complaint to the CRPD Committee for any breach occurred. This paper will analyze the Malaysian’s compliance with the UN CRPD. It is concluded that the reservation of the articles should be removed and interpretative declaration should be made to ensure it is in accordance with Federal Constitution and domestic laws in Malaysia

Dewan Bahasa & Pustaka eBooks, 2007

Disability studies has created keen interest of many scholars from various academic fields includ... more Disability studies has created keen interest of many scholars from various academic fields including medicine, sociology, and education. Studies of these areas on disability have become major threshold in understanding the needs of persons with disabilities (PWD), which is one of the minority groups that have significant role and importance in the community. What is the best approach in dealing with PWD affairs? There is debate on this issue because initially there are at least two choices or models to be followed namely the medical model and the social model. With the existence of the Convention on the Rights of Persons with Disabilities (CRPD), an international human rights treaty that specifically addressed the rights and needs of PWD, legal perspective has penetrated into forming a new understanding of disability studies. The concept of rights, for example, has become the cause of major discussions within the social model. The discussions on the legal aspect and rights of PWD have eventually formed an integral part of understanding the model. This paper asserts that legal perspective has strengthened the disability studies generally. It also attracts potential scholars to have academic discourse on the studies at present and in future globally and locally. Malaysia as one of the Sate Members of the CRPD has enacted a domestic legislation known as Persons with Disabilities Act 2008 to fulfill its the obligations under the treaty. The doctrinal legal research adopted by this paper explores the relationship between disability studies and legal studies within the context of Malaysian legal framework. It is believed there is a strong link between the two studies which is waiting to be properly and fully utilised. The combined studies of both areas create a fertile academic environment which can give rise to academic discourses of multiple fields. Such interdisciplinary approach will add value to the research and make the outcome more practical in promoting and protecting the rights of PWD. There is a dire need to strengthen disability studies through legal perspectives because it would allow greater and meaningful participation from whole society to address the concern and grievances suffer by this important by the marginalized group.

State Parties have duty to ensure promoting full realization of human rights for PWD through appr... more State Parties have duty to ensure promoting full realization of human rights for PWD through appropriate legislative, administrative and other measures including maximum available resources with regard to socio-economic development. Malaysia has become the party to the CRPD and domestic legislation have been passed by the government to promote and protect the PWD. One of the Quran’s major themes is social justice. Islam builds its community out of human obligation toward each other, making each Muslim accountable for the well-being of every other Muslim. Zakat promotes care and love between each other in the community by guaranteeing justice unto the least of them, while shielding the weak from injury. It enshrines the right of help for the community’s needy, and in doing so it builds a relationship of consideration and appreciation between society’s members. Zakat awakens the individual’s social spirit with the truest practical expression of brotherhood. It links one to others by a sense of personal responsibility and it binds everyone to the individual through an obligation of sufficiency. In Malaysia, the role of zakat (tithe) institution in assisting those who are poor and needy within the beneficiaries (asnaf) that allows under the Shariah is crucial to achieve social justice. The institution has become integral part within Malaysian Muslim society where government has set up proper mechanism of paying zakat through institution recognized under the law. Zakat institution would help to improve the living condition of PWD not just in terms of eradicating poverty among them but also improving their life and getting support system. This article will address the importance of zakat institution in Malaysia to assist PWD who is in dire need for financial and support system that allows them to participate meaningfully within community in line with the spirit of CRPD and local laws.

Constitutional review, May 31, 2022

Dewan Bahasa & Pustaka eBooks, 2007

The Federation of Malaysia came into being on 16 September 1963 with the merger of the States of ... more The Federation of Malaysia came into being on 16 September 1963 with the merger of the States of Malaya, Singapore, Sarawak and North Borneo. In the asymmetry federation Sarawak was guaranteed with more autonomy compared to the States of Malaya as agreed in the Malaysia Agreement 1963. The additional power can be observed in Part VI of the Malaysian Constitution which need to be read together with the Ninth Schedule of the Constitution that established the constitutional framework of the relationship between the Federal government and the State governments. Since the formation of Malaysia Sarawak have experienced various violations of its right by the federal authority in spite of the existence of constitutional safeguards for the states. This is a qualitative research and legal study which include field study such as interviews. This study seeks to identify issues and challenges in protecting Sarawak’s rights within Malaysia federal system. It is believed that protection of rights of Sarawak as one of the states that have special position in the Malaysian Constitution can be more effective by applying the concept of dynamic federalism

Perlembagaan Malaysia melindungi hak-hak asasi setiap manusia samada warganegara atau bukan. Anta... more Perlembagaan Malaysia melindungi hak-hak asasi setiap manusia samada warganegara atau bukan. Antara hak asasi yang dilindungi ialah hak kebebasan diri dan hak kesamarataan. Beberapa isu undang-undang dan perlembgaan timbul berkaitan dengan undang-undang dan penguatkuasaan undang-undang kawalan tembakau.

University of Malaya Press eBooks, Nov 19, 2015

The promotion and protection of the rights of persons with disabilities (PWD) have not seen much ... more The promotion and protection of the rights of persons with disabilities (PWD) have not seen much progress in the past decades. Disabled people especially the elderly have been mainly neglected. They need proper attention because they are weak,handicapped, and unable to live and make decision independently. The United Nations Convention of the Rights of Persons with Disabilities (CRPD) has provided significant attention to the elderly with disabilities to improve their rights especially relating to their life, dignity, employment, social security, health and housing. Under the convention State Party must include protection and care for elder with disabilities within its legal and policy framework. As a State Member to CRPD, Malaysia has enacted the Persons with Disabilities Act 2008 to fulfil the international obligations improving the laws and policy relating to disabled people. Malaysia has two policies related with elderly; National Policy for the Elderly and National Health Policy for Older Persons. These policies however, focus disability in terms of access to health rather than other rights that might suit with elderly with disabilities. With the existence of CRPD and PWD Act 2008, there is needed to consider broader rights of elderly with disabilities including social support system, accessible rights to buildings, facilities, employment, education and situation of risks and humanitarian emergencies. Thus, it is pertinent to analyse the possible legal and policy strategies that can be implemented in Malaysia to provide such protection for elderly with disabilities from being abused and neglected by the society.

Children with disabilities require protection of their rights from the society. They are disabled... more Children with disabilities require protection of their rights from the society. They are disabled because society excluded, discriminated and encouraging negative stigma against them. The UN Convention on the Rights of Persons with Disabilities (CRPD) especially Article 7 has mentioned that the State Parties shall promote and protect the rights of children with disabilities including providing necessary measures on an equal basis with others. The concept of the best interest of child has become a primary consideration, together, with expressing their views freely in accordance with their age and maturity has been embodied within the convention. Malaysia has ratified the said Convention in 2010 and enacting Persons with Disabilities (PWD) Act 2008 to fulfil their international obligations. Furthermore, the new Education (Regulation) Special Education 2015 has been gazetted to show government’s commitment to upholding their rights in all aspects of life. However, various issues and challenges being faced to ensure the human rights approach in accordance with the CRPD being implemented, to improve the condition of children with disabilities. This article will elaborate the Malaysian commitment to improving the life of children with disabilities in accordance with human rights approach towards disabilities. It would assist the agenda to recognize their full potential to live fullest which will be important and significant for developing nation like Malaysia. The final analysis showed that there is the need for full cooperation between government, private sectors, non-governmental and disabled people organisations to promote and protect the rights of children with disabilities in all aspects of life.

Unity in Malaysia faces at least 2 main challenges, namely, unity of territory and unity of commu... more Unity in Malaysia faces at least 2 main challenges, namely, unity of territory and unity of community. To overcome these challenges, the fundamental and supreme law of the country is equipped with several mechanisms and institutions. Some aspects of the solutions provided for by the Constitution are found in most countries are in compliance with general democratic norms. However, some solutions appear to depart from the generally practiced norms or are rather the exceptional and salient features of the Malaysian Constitution. This paper seeks to highlight certain aspects of the constitution which have vital roles in promoting and ensuring unity of the nation and to show that the intriguing features of the Constitution are significant in maintaining peaceful co-existence between the diverse communities in the country.

Protecting The Elderly Against Abuse and Neglect

The promotion and protection of the rights of persons with disabilities (PWD) have not seen much ... more The promotion and protection of the rights of persons with disabilities (PWD) have not seen much progress in the past decades. Disabled people especially the elderly have been mainly neglected. They need proper attention because they are weak, handicapped, and unable to live and make decision independently. The United Nations Convention of the Rights of Persons with Disabilities (CRPD) has provided significant attention to the elderly with disabilities to improve their rights especially relating to their life, dignity, employment, social security, health and housing. Under the convention State Party must include protection and care for elder with disabilities within its legal and policy framework. As a State Member to CRPD, Malaysia has enacted the Persons with Disabilities Act 2008 to fulfil the international obligations improving the laws and policy relating to disabled people. Malaysia has two policies related with elderly; National Policy for the Elderly and National Health Policy for Older Persons. These policies however, focus disability in terms of access to health rather than other rights that might suit with elderly with disabilities. With the existence of CRPD and PWD Act 2008, there is needed to consider broader rights of elderly with disabilities including social support system, accessible rights to buildings, facilities, employment, education and situation of risks and humanitarian emergencies. Thus, it is pertinent to analyse the possible legal and policy strategies that can be implemented in Malaysia to provide such protection for elderly with disabilities from being abused and neglected by the society.