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Chief Judicial Magistrate's Court or the Chief Metropolitan Magistrate's Court, as
appropriate, and explain why it's taking longer than expected. In that instance, he'll have to
send a status report.860

5.11 Cognisability and Compound Ability
In contrast to the non-cognizability, availability, and compound ability of offences under
sections 31, 32, and 35, those under sections 33 and 34 have been cognisable, non-bailable,
and compoundable. According to Section 40, the Mobile Courts Act, 2009's Schedule shall
incorporate this Act (Act No. 59 of 2009).861

5.12 Complaints to the Government
Under Section, anyone who believes they have been wronged may file a complaint with the
relevant government agency, including one alleging fraud, a demand for payment of costs at
unapproved rates, or a breach of contract against anyone, including a recruitment agent,
without giving up their right to bring a criminal case.862 After receiving a complaint, the
government, the authorities, or a person appointed by the government must complete their
investigation within thirty (30) days of regular business hours. Within three months after the
inquiry was finished, if the research finds that the complaint is accurate, the government, the
authorities, or the person authorised by it may, by order, dispose of the complaint directly or
through arbitration (Salish). When dealing with concerns through arbitration, some rules must
be observed.863 Places or transportation leaving or arriving from Bangladesh may be subject
to inspection by a government official authorised to prevent irregular migration or protect the
interests of a potential migrant worker.864 After conducting any inquiry that may be required
and issuing a written order, the government has the authority to demand reimbursement from
any person for any amount of money that was wrongfully appropriated in contravention of
the terms of this act.865 To ensure that migrant workers' rights are protected, the government
may notify an officer or authorities, or execute a contract, delegating certain powers or
functions given by this act. It may, if required, appoint an authorised agent or delegated
authority in another country.866

VI. THE PREVENTION OF SUPPRESSION OF HUMAN TRAFFICKING ACT 2012
According to the findings of a study that Dr Ridwanul Hoque carried out, "[I]n Bangladesh,
the idea of "labour trafficking," that is, trafficking in human beings to exploit their labour,
was, until recently, lacking in the existing legislation. Since there is not yet a crime for
"trafficking in persons for labour," related crimes such as "fraudulent recruitment," "receipt
of money by any unauthorised person for the recruitment of workers for overseas
employment" and "like offences," "forced labour," "forgery of travel documents" and others
must be prosecuted instead. These crimes can be found in the Emigration Ordinance (1982),
the Penal Code (1870), and other laws.867 For instance, the Passport (Offences) Act 1952
makes it illegal to fake, change, or tamper with a passport, and the Bangladesh Passport
Order 1973 makes it unlawful to depart from Bangladesh without a valid passport or travel
document. Accordingly, these statutes cover lesser offences associated with the major crime

860 Ibid, Section 38.
861 Ibid, Section 40.
862 Section 41, The Overseas Employment and Migrants Act, 2013.
863 Ibid.
864 Ibid, Section 42.
865 Ibid, Section 43.
866 Ibid, Section 44.
867 9 Ridwanul Hoque, Protecting Migrant Workers from Bangladesh: A Study of Legal Compliance with
Migrant Workers' Rights, National Human Rights Commission, Bangladesh, p.104

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of trafficking Bangladeshi migrant workers.868 Following the provisions of Section 5 of the
Act, Bangladeshi law may be applied extraterritorially in cases where either the victims or the
perpetrators are Bangladeshi nationals.869 It has also been confirmed that offences related to
human trafficking are extraditable offences.

6.1 Punishment of Human Trafficking
Human trafficking is punishable in many ways, outlined in Chapter 2 (Sections 6–16) of the
Prevention and Suppression of Human Trafficking Act of 2012. Criminal penalties for
trafficking are specified in sections 6 and 7. (death penalty when the offence is in the form of
organised crime and imprisonment for life in case of other types of crime). The newly passed
law also covers ancillary crimes.870 The efforts of the government of Bangladesh to safeguard
victims of trafficking have been inadequate over the past year. There is persistent cause for
alarm regarding the government's failure to adequately protect adult male victims of
trafficking and forced labour, who account for a disproportionately large fraction of victims
in the country. While there was no formal system in place, victims of internal trafficking
were often sent to shelters by the courts, police, or Home Ministry authorities.

6.2 The Anti-Human Trafficking Offence Tribunal and the Trial of Offence
Specifically, Sections 21 and 22 declare that establishing a special anti-human trafficking
tribunal has been confirmed, with the mandate to expeditiously resolve all human trafficking
trials. The laws stipulate that the Tribunals shall engage in the following procedures-

(i) By publication in the Gazette, the government may appoint a judge of the level of
a Sessions Judge or Additional Sessions Judge in any district to serve as the Anti-
Human Trafficking Offenses Tribunal to expeditiously try offences under this act.

(ii) The government has the authority to appoint the Nari O Shishu Nirjaton Daman
Tribunal in each district to act as the Ani-Human Trafficking Offenses Tribunal
of the district and assign and empower the tribunal to carry out its responsibilities
in this capacity.

(iii) Only a Tribunal formed by this act may hear cases involving violations of its
provisions.

(iv) The crimes may be brought before the tribunal within whose territorial authority
any crimes, or any part of a crime, is committed, or the victim of crimes related to
human trafficking is rescued.

(v) If an offence was committed by a Bangladeshi citizen, a Bangladeshi company, or
a person who regularly resides in Bangladesh but did so outside of Bangladeshi
territory, the tribunal whose territorial jurisdiction the offender was a resident of,
or in the case of a company, the location of its registered office, may try the case.

6.3 Powers of the Tribunal
The tribunal shall have all the authority of a Court of Sessions, subject to the requirements of
this act. In the interest of justice, the tribunal may issue proactive orders requiring any person
or institution to provide any report, document, or register to the tribunal according to this act.
The provisions offer broad government authority, including-

(i) The recording of evidence in locations other than the courthouse,
(ii) In addition to monetary penalties, to give civil compensation,
(iii) To order the implementation of any preventative measure,

868 See, footnote 50, Ridwanul Hoque, Protecting Migrant Workers from Bangladesh: A Study of Legal
Compliance with Migrant Workers' Rights, National Human Rights Commission, Bangladesh, p.104
869 Section 5, the Prevention and Suppression of Human Trafficking 2012.
870 See, for details, ss.6-16, the Prevention and Suppression of Human Trafficking Act 2012.

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(iv) The court must issue a control order while releasing the offender on bail, and
(v) Allow materials that are held electronically, such as witness statements, including

those collected in a foreign nation, to be admitted as evidence.

6.4 Assistance, Protection, and Rehabilitation of the Victims and Witness
Under the provisions of sections 32–40 of the act, a comprehensive protective measure
package was established for the protection of victims and survivors, including:

(i) The process of identifying victims,
(ii) Retrieval, treatment, and return to normal life (Provisions have been made for the

creation of more safe houses)
(iii) Reimbursement of the victims' and witnesses' reasonable expenditures that were

incurred as a result of the offense,
(iv) Access to free legal representation and compensation awarded by the court,
(v) Protection from victimisation and respect for victims' privacy and dignity, and
(vi) The rights of victims to get information.

6.5 Victim-Centric Seizure, Freeze, and Confiscation of Property
Section 27 of the Act mandates the confiscation and freezing of the assets of both natural and
legal persons found to be complicit in human trafficking, with the proceeds going to a fund
established to aid victims of the crime.

VII. THE EMIGRATION ORDINANCE 1982
The primary regulatory tool in connection to migration was established by the Government's
promulgation of the Emigration Ordinance in 1982. Only individuals who are in possession
of current and legitimate travel documents are permitted to depart the country, as stipulated
by the Ordinance. A legitimate document is one that is issued by a foreign government, such
as an employment visa or work permit from a overseas company or employer.871 After
completing the selection procedure by the overseas employer through a government-approved
local recruiting agent or organisation, the emigration can only be allowed later agreement
between the two governments.872 The Ordinance also gives the government the power, in the
public interest, to stop people with certain jobs, professions, vocations, or qualifications from
leaving the country.873 To facilitate recruiting for overseas work, the government may issue
licences to individuals and businesses under the Ordinance874, and to terminate or suspend
licences and withhold the deposit if it finds that the licensee's behaviour has been
inappropriate or in contravention of the law or the specified code of conduct. Nevertheless,
such steps can't be taken until the licensee has had a chance to explain his or her point of
view.875 A maximum fine of BDT 5,000 and a maximum prison sentence of up to one year
are possible for those convicted of illegally leaving the country. Additionally, the Ordinance
includes measures for sanctioning illicit recruitment practises876 and it is against the law for
employment agencies to charge more than the allotted amount of money for their
services..877. Moreover, there are penalties in place for workers who quit on their overseas
employers in violation of their employment contracts.878

871 Section 7(3/A), The Emigration Ordinance, 1982
872 Ibid, Section 7(3/B).
873 Ibid, Section 8(1).
874 Ibid, Section 10.
875 Section 14 (1), The Emigration Ordinance, 1982.
876 Ibid, Section 20.
877 Ibid, Section 23.
878 Ibid, Section 24.

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VIII. POSITION OF BANGLADESH IN COMPLIANCE WITH INTERNATIONAL
LAWS
The Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and
Children, which was signed in the year 2000, is the most important international tool for
fighting human trafficking,879 Moreover, the Protocol against the Smuggling of Migrants by
Land, Sea, and Air in the Year 2000 establishes a legal framework for the fight against the
trafficking of people. However, it is a well-known truth that Bangladesh has neither ratified
these two accords nor signed any of them. In addition, Several international conventions
protecting human rights have been approved by Bangladesh as the ICCPR,880 ICESCR,
CEDAW, and CRC881 , which include clauses requiring Bangladesh to take action against
human trafficking and smuggling.

It is important to note that Bangladesh made the positive decision in August 2011 to
ratify the 1990 United Nations International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families. It is something that should be mentioned
here (ICRMW). Through ratification, Bangladesh accepted its responsibility to implement the
Convention by implementing the required legal, administrative, and adjudicative procedures
and ensuring adequate recourse for migrant workers whose rights are violated.882 The
Overseas Employment and Migrants Act 2013 was passed into law in Bangladesh as part of
the country's efforts to comply with this Convention.

IX. CONCLUSION
After the passage of the Prevention and Suppression of Human Trafficking Act 2012 and the
Overseas Employment and Migrant Act 2013, it can be argued that Bangladesh now has
enough national legislative measures to safeguard migrant workers' rights and fight against
human trafficking. However, The Acts granted the migrants very few rights and included
contradictory rules, which created a chance for those who committed wrongdoing to avoid
being held accountable for their actions. On the subject of the accountability of government
functionaries, the acts were quiet. In addition, unfortunately, not much work has been done to
implement the Acts' requirements. More specifically, the Government may not permit
emigration for the purpose of obtaining employment outside the country from any port or
place other than those ports or places that it specifically designates in a notification published
in the Gazette. The victims of human trafficking have less power than the traffickers; hence
the lack of enforcement of the Acts is a significant problem. Because of this, workers who
migrate cannot travel safely. Inadequate education about the Acts among lawyers and law
enforcement has been a key barrier to their effective implementation. Human trafficking
cannot be stopped by the government alone. As a result, to safeguard the rights of migrant
workers and secure their safety while traveling, the risk of human trafficking must be
decreased, and anti-trafficking and safe migrant initiatives should be supported with the
cooperation of all relevant parties at all levels.

In addition, legislators ought to enact a clause that would increase the membership of
migrant workers in trade unions in a manner that is more officially recognised. Migrant
workers must make their voices heard and fight for the rights they are entitled to in this
context. In addition, the government should conduct regular checks on the welfare of migrant
workers, including ensuring that they receive appropriate remuneration for their jobs,

879 This supplements the 2000 UN Convention against Transnational Organized Crime (UNTOC).
This supplements the 2000 UN Convention against Transnational Organized Crime (UNTOC).
", "[n]o one shall be required to perform forced or compulsory labour", and so on].
881 The Convention on the Rights of the Child 1989.
882 6 See, Ridwanul Hoque, “Emigration fraud and justice for migrant workers”, The Daily Star, Dhaka, 18
December 2012.

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consistent working hours, compensation for overtime worked, and a good living and working
environment, among other things. In the meantime, migrant workers ought to be granted
rights to nominations for their contribution because it is deemed to be the money they have
worked hard to obtain. Their heirs or beneficiaries ought to receive the contribution on an
automatic basis. To achieve peace and harmony with other nations, the government should
treat all individuals, citizens, and noncitizens, by international law. It would help the country
achieve its goals of serenity and harmony.

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22 October 2022
E-ISBN 978-967-491-267-3

p. 231-246

19. THE ROLE OF ISLAMIC GOVERNANCE IN
PROMOTING NATIONAL PEACE AND

SECURITY: THE CASE OF MALAYSIA (2010-
2020)

Md. Khaled Hosen
PhD Candidate, Department of Political Science,
Abdulhamid Abusulayman Kulliyyah of Islamic Revealed Knowledge and Human Sciences,

International Islamic University Malaysia
Scholar, International Institute of Islamic Thought (IIIT), VA, US

Email: [email protected]

Dr. Syaza Farhana Mohamad Shukri
Assistant Professor, Department of Political Science,
Abdulhamid Abusulayman Kulliyyah of Islamic Revealed Knowledge and Human Sciences,

International Islamic University Malaysia
Non-resident Research Fellow, European Centre for Populism Studies, Belgium

Email: [email protected]

ABSTRACT
Malaysia is a multi-ethnic country where maintaining peace and security is a top
priority for the government. Allowing any form of violation and insecurity in
society threatens political stability and national order. Considering these
challenges, the Malaysian government adopted moderate policies such as
Wasatiyyah, Maqasid Sharia, and Rahmatan Lil-Alamin to promote communal
harmony and social peace. In line with government initiatives, Malaysia's
religious institutions and Islamic bureaucrats are actively involved in peace and
security enhancement. In this aspect, the role of the Islamic Development
Department (JAKIM), the Sharia courts, the Ulama, and Da’wa organisation in
social peace are mostly apparent. Therefore, a thorough investigation is necessary
to determine how Islamic governance in Malaysia fosters national security and
social peace. Contemporary literature endeavours to explain these issues in
several manners. However, their explanations are limited and based on different
perspectives. There is a need to understand how Islamic governance defines peace
and security and how the religious administration in Malaysia is working towards
that. This study aims to fill this literature gap. Data are gathered from primary and
secondary sources using qualitative research techniques. Quran, hadith,
government publications, websites, newspapers, and the opinion of experts are
among the primary sources. The secondary data consists of credible academic
books, articles, and journals. For the data analysis, the study initially explores the
theoretical foundation of Islamic governance in promoting peace and security.

Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
International Peace and Security: The Achievement of the United Nations and the Way Forward

Second, it presents the functional mechanism of Islamic administration in
Malaysia. Third, it examines the government’s policies toward social peace and
security. Fourth, it discusses the role of religious agents and institutions in
Malaysia who are involved in peace and security management. And finally, it
ends with analysing prevailing challenges and critical remarks. This research
discovers that the Islamic governance in Malaysia plays a commendable role in
promoting peace and security. The government policies are encouraging and
timely. The religious institutions are attentively performing their assigned
responsibilities. However, the policies and execution strategies need further
improvements.

Keywords: Malaysia, Islamic governance, peace and security, society.

I. INTRODUCTION
In recent decades, major publications have portrayed Islam and its political arrangement
critically. This is due to a number of factors, including the Iranian Revolution, the Rushdie
Affair, the Afghan Revolution, and the most recent resurgence of extreme ideology such as
ISIS which all raised serious concerns in western society. According to academic viewpoints,
it is difficult to comprehend the true and ingrained philosophy of Islam's universality while
using oriental approach to define Islam. We are referring to that aspect of Islam that is
constantly an advocate for world peace, justice, individual liberty, social security, and overall
welfare. The representation of Islamic governance by ISIS or other extremists is not the true
picture of Islam but rather a fabrication that does not reflect the teachings of mainstream
Islam.

The primary concern of Islamic governance is amr bil ma'ruf wa nahi anil munkar,
(Surah Aal Imran 3:110), which is encouraging and ensuring good acts such as peace, justice,
security of human life, blood, progeny, money, and status, as well as removing any element
that threatens social peace and security. So, it is important to understand the theoretical
ground of Islamic governance and how Islam advocates for peace and security, and which
basic principles and guidelines of Islamic governance support social peace and security.
Furthermore, it is also essential to comprehend the practical aspect of Islam and how Islamic
governance is applied from modern perspectives. In this case, Malaysia is a practical example
where Islam is applied in governance mechanism. Malaysia is a multi-religious, multi-racial,
and multi-cultural country in which religious tolerance is recognised by many but disputed by
few.883 Political leaders, religious clergy, and government policies, as well as religious
teachings contributed to promoting a moderate, tolerant, and harmonious society in Malaysia.
Furthermore, Malaysia's constitutional framework ensures the rights of all citizens, regardless
of religion, culture, or race even though special rights for the Malay community are legally
enshrined. The legal system applies to all Malaysians; however, the Islamic legal system is
reserved for Muslims only.

Islamic teachings and Islamic institutions are continuously encouraging to maintain
peaceful order in society. Therefore, the question arises of how the Islamic governance in
Malaysia is contributing to peace and security. This study aims to carry out this
responsibility. It first explains the direction of Islam in promoting peace and security even in
the multi-racial, multi-religious and multi-cultural societies. Secondly, it discusses the main
functional principles of Islamic governance as guided by the Quran for the theoretical

883 Abubakar, Ibrahim. "The religious tolerance in Malaysia: An exposition." Advances in Natural and Applied
Sciences 7, no. 1 (2013): 90-97.

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guidelines of this study; third, the role of Islamic governance in promoting peace and security
in Malaysia. But before this section, the study presents analysis on the nature of
administrative structure in performing Islamic affairs in Malaysia that will help to understand
the function of Islamic governance in Malaysian perspectives. This study is noteworthy for a
number of reasons. The Malaysian model of Islamic government will inspire other Muslim
countries to establish and use their religious institutions to promote peace and security in their
respective countries. They will have practical evidence regarding how zakat-based economic
assistance may promote economic stability and communal harmony for all individuals. They
will also understand how religious institutions might help to reduce crime and other forms of
violence that endanger society's peace and security. Finally, it will make a contribution to the
academic area in a variety of subjects. Furthermore, this study is part of a larger movement
by recent scholars to shift the academic gravity on Islamic studies away from the supposed
Muslim heartland in the Middle East. In other words, Malaysia as a Muslim country has
much to offer in terms of localising Islam.

Islamic governance in Malaysia has been examined from a number of perspectives.
Such as waqaf management,884 zakat management,885 corporate governance and Islamic
financial institutions,886 religious pluralism in multiracial society,887 managing peace in
Malaysia,888 the functions of Islamic institutions such JAKIM, and Islamic bureaucracy,889
Islamic legal system and its functions.890 However, there is less study that discusses the
contributions of Islamic governance in promoting peace and security in Malaysia. This study
aims to fulfil this literature gaps. This is a qualitative study that relies on primary and
secondary sources. Quranic verses, tafsirs, exegesis from credible mufassirin, the authority of
qur'anic commentary, hadith, prophetic narrations and traditions, experts' opinion, Malaysian
constitution, government rules and acts, national dailies, and personal observation were
among the data sources. It also looks at referred books, articles, and journals that are relevant
and related to this investigation. The following section discusses the guidance of Islam in
promoting peace and security.

II. ISLAMIC FRAMEWORK OF PEACE AND SECURITY

2.1 Islam in Peace and Security
“Islam” as a noun or a verb maintains several meanings in different verses of the Qur’an. The
origin of the term Islam, silm, means "creating peace, living in a mutually peaceful
atmosphere, greetings, rescue, safety, security, finding peace, obtaining goodness, comfort,
and favour, abstaining from difficulties and devastations, surrendering the self and obeying,
respect, distancing from wrong." Indeed, salaam and salaamat imply "to attain salvation,"
and its rubai version (with four radical letters) aslama means "to surrender, become Muslim,

884 Daud, Dalila. "The role of Islamic governance in the reinforcement waqf reporting: SIRC Malaysia
case." Journal of Islamic Accounting and Business Research (2019).
885 Wahab, Norazlina Abd, and Abdul Rahim Abdul Rahman. "A framework to analyse the efficiency and
governance of zakat institutions." Journal of Islamic Accounting and Business Research (2011).
886 Sulaiman, Maliah, Norakma Abd Majid, and Noraini Mohd Ariffin. "Corporate governance of Islamic
financial institutions in Malaysia." Asian Journal of Business and Accounting 8, no. 1 (2015): 65-94.
887 Harding, Andrew. "Malaysia: Religious pluralism and the constitution in a contested polity." Middle East
Law and Governance 4, no. 2-3 (2012): 356-385.
888 Shamsul, A. B., & Yusoff, A. Y. (2011). Managing peace in Malaysia: A case study. Universiti Kebangsaan
Malaysia, Institute of Ethic Studies (KITA).
889 Sani, Mohd Azizuddin Mohd. "Islamization policy and Islamic bureaucracy in Malaysia." In Islamization
Policy and Islamic Bureaucracy in Malaysia. ISEAS Publishing, 2015.
890 Mohamad, Maznah. "Making majority, undoing family: Law, religion and the Islamization of the state in
Malaysia." Economy and Society 39, no. 3 (2010): 360-384.

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and make peace”. Islam is defined as the "submission to God, acknowledging His authority,
and executing His instructions"; "complete devotion to God and serving only Him"; and
"embracing and abiding by the messages of the Prophet Muhammad (peace be upon him)”.
Therefore, a Muslim is someone who lives under the peaceful and secure umbrella of Islam.
God desires that a Muslim lives in a safe and peaceful environment and work to propagate
and sustain peace. As the scripture says, "O you who believe! All of you, come in full
surrender to God (without permitting any conflict among you for worldly reasons), and do
not follow in the footsteps of Satan, because he is a plain adversary to you (trying to persuade
you to rebel against God with dazzling promises)” (Qur'an, 2:208).

All Muslims are brothers and sisters to one another, according to the Qur'an, and if
there is a disagreement among them, they resolve it peacefully (Qur'an, 49:10). In every
phase of their lives, they support one another in abstaining from what God forbids and
maintaining their religious awareness (Qur'an, 5:2); they carry out significant tasks following
shura, or consultation (Qur'an, 3:159; 42:38); and they always bear witness honestly and
justly, even if it is in opposition to their close relatives (Qur'an, 4:135). A real Muslim, as
stated in the Qur'an, takes the straight path. That implies, he or she is trustworthy, morally
upright, and just. It also implies that they rightly observe religion guided by reason. (Qur'an,
1:6-7; 11:112). So, the search for straight path commands leading a reasonable life that
promotes good connections with everyone and being totally genuine and honest in all
situations. Islam holds that every human life, regardless of genealogy, race, or language, is a
gift from God, and should thus be carefully protected. Islam's central tenet is worship of the
Almighty (Qur'an 1:1; 6:45) and compassion for all of creation. According to the Qur'an
humanity is the finest creation (17:70), and has the highest status, (95:4). Since everyone is
deserving of respect by nature, it is right to treat them with compassion, tolerance, and
humility. Therefore, avoiding hostility and exhibiting tolerance are vital for mankind.

Islam in social perspective provides significant directions. According to Islam, the right
to life is an inalienable right. The Qur'an says, killing a soul (apart from legal punishment for
murder or for causing chaos on earth) is equivalent to killing all human beings. Conversely,
saving a life is equivalent to saving the lives of all human beings. When the Prophet of God
(peace be upon him) described Islam's potential to contribute to social safety and peace, he
said, "a rider will travel from Sana'a (a city in Yemen) to Hadhramaut (a region in the
southwest of the Arabian Peninsula) fearing none but God, or a wolf in regard to his
sheep."891 It was at the period, when the entire Arab world was facing the age of ignorance,
the idea of a female rider or a wealthy person traveling with holiness and resources was
unthinkable.

The Prophet instructed to preserve social unity and collaboration, to open our hearts to
our brothers and sisters, and to always aid one another. He stated, "Do not sever ties with one
another! Don't turn your backs on one another! Do not breed hate among yourself! O ye who
serve God! Turn become brothers and sisters!" 892 The Qur'an urges to settle conflicts
peacefully and to avoid future disputes, clashes, and confusion; also, individuals are
encouraged to take a balanced attitude and seek justice (Qur'an, 8:1; 49:9-10). Humiliating
the peace and tranquillity is prohibited, and those who do so face consequences. Peace is
better (Qur'an, 4:128), the verse was revealed expressly to eliminate arguments between
spouses, may be applied to all types of human relationships. Islam advocates for a cohesive
and mutually beneficial society, and this ideal encompasses not just national but also
international ties.

891Bukhari, Manaqib, 25, Ikrah, 1; Abu Dawud, Jihad, 97; Ahmad b. Hanbal, Musnad, V, 110-111.
892 Sahih Muslim, Birr, 23.

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The Quran teaches Muslims to live in harmony with non-Muslims and to treat them
with fairness and kindness. “Allah does not forbid you from dealing kindly and fairly with
those who have neither fought nor driven you out of your homes. Surely Allah loves those
who are fair.” (60:8) and “Allah only forbids you from befriending those who have fought
you for ˹your˺ faith, driven you out of your homes, or supported ˹others˺ in doing so. And
whoever takes them as friends, then it is they who are the ˹true˺ wrongdoers.” (60:9). Shabbir
Ahmad Usmani explains the verse as follows: "Some Makkan non-Muslims neither accepted
Islam nor harbored any animosity or hostility towards Muslims. They didn't fight against
them for their practice of Islam, and they didn't support those who were torturing and driving
them away. Muslims are commanded to treat such non-believers with respect and affection
rather than harshness and hate, according to Islam. Islam forbids Muslims from using the
same standard to judge non-Muslims at war and those who are not fighting them. It is against
justice, wisdom, and common sense to treat both equally." (Commentary on Tarjamah
Shaikhul Hind in the footnotes).

2.2 Islamic Governance in Peace and Security
In Islam, Allah is regarded as the primary source of contentment and safety. He promises to
provide prosperity to those who meet two requirements: believe in Allah, and conduct all of
their activities in fear of Him or in accordance with His commands. The Quran states "and if
only the inhabitants of the cities had believed and feared Allah, We would have opened
bounties from the heavens and the earth, But they refused [the messengers], so We grabbed
them for what they were earning." (7:96). In terms of practicing taqwa (God fearing) in
government mechanism, the Quran guides the rulers to follow some basic responsibilities to
establish a society or a nation based on peace and security. “(Allah will undoubtedly assist)
those who, if We bestow authority on them in the country, will institute Prayers, render
Zakah, enjoin Good, and forbid Evil. Allah is the final arbiter of all affairs.” (Surah Al-Hajj:
41). It is clear from the verse that the authority of Islamic governance has four basic
responsibilities: (1) establishing salat (five times compulsory prayer) into the entire Muslim
society that signifies the eternal relation with the Almighty, the source of all peace and
security and welfare of the society; (2) institutionalisation of zakat that provides economic
security and emancipation of the entire community as zakat collection and their proper
distribution ensure meting collective basic needs of the society and economic freedom that
consolidate social inter-dependency and cohesion; (3) amr bil ma’ruf , institutional support
for disseminating and educating people towards welfare of the whole community that ensure
social peace and security; and, (4) institutional maintenance for preventing munkar, all kinds
of harmful deeds.

Furthermore, Amr bil ma’ruf wan ahi anil munkar (encouraging good and forbidding
evil) are basic the pillars of establishing social peace and security. “You are the best ummah
created for mankind. You command good and you forbid evil and you believe in Allah.”
(3:110). Islam advocates Muslims some essential obligations for promoting peace and
security in performing amr bil ma’ruf. These included: justice, altruism brotherhood, good
friendship, reconciliation for peace making, good character and morals, patients. The
example of nahi anil munkar, prohibiting evils are idolatry and polytheism, sorcery,
oppression and aggression. Allah stated: "The fault is exclusively against those who oppress
men with injustice and impudently cross over into forbidden works, disobeying right and
justice; for such persons there will be a painful consequence." (42:42). The examples of
transgression include hostile treatment of relatives, including parents and children,
fornication, adultery, slander, gambling, stealing, robbery, illegal process of achieving
property and resource, torture, power abuse, false treating for selling goods and price
monopoly, contract betrayal and violation of trust, and hatred. Therefore, Holy Quran states

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"Help yet one another in righteousness and piety, but help ye not one another in sin and
rancour, fear Allah, for Allah is strict in punishment"(5:2). In addition, the Quran declares,
"O you who believe! As witnesses to Allah, stand firmly for justice even when it comes
against to you, your parents, your relatives, and whether it be (against) the wealthy and the
poor (Q4: 135); and "... to fair dealing, and let — for it is nearest to piety." (Q5: 8). Thus,
according to the Islamic idea of peace, justice should take precedence above all other
considerations, including those of race, religion, and faith.

Islamic governance institutionalises to follow the Quranic directions in encouraging
good and forbidding evil through public institutions and several mechanisms. Imam Khomeni
describes the role of guardianship in leading public institutions in Islamic governance. He
asserts that "propagation and instruction" are the two core duties of Islamic governance, and
that the role of the Fuqaha (Islamic jurists) is to "promulgate religion and instruct people in
the doctrine, ordinances, and institutions of Islam to lead society for the execution of Islamic
law and building of Islamic institutions."893 Form the above analysis, the Quranic injunction
for the function of Islamic governance is very clear. This study can develop a framework of
analysis through following Quranic model (1) Mosque development for wider practice of
salat (2) institutionalising zakat for economic security (3) promoting religious institutions for
daw’a, or amr bil ma’ruf and (4) Islamic legal institutions for preventing munkar, the
elements of violating social peace and security. The following section analyses how Islamic
governance contributed in promoting peace and security in Muslim-majority Malaysia by
following the four responsibilities. But before that it is essential to explain the institutional
structures of Islamic governance in Malaysia. The following section will address this.

III. ISLAMIC GOVERNANCE MANAGEMENT IN MALAYSIA
Malaysia is comprised of 13 states and 3 federal territories. These states include Negri
Sembilan, Perak, Pahang, Perlis, Penang, Selangor, Kedah, Johore, Kelantan, Terengganu,
Malacca, Sabah and Sarawak. All states in West Malaysia, with the exception of Malacca,
Penang, and the Federal Territories of Kuala Lumpur and Putrajaya are governed by Sultans
(the Rulers). While the Yang Di Pertua Negeri are in charge of Malacca and Penang (who
enjoy the same status as the Sultan). The Federal Territories, on the other hand, are governed
by the Federal Government. The country's official religion is Islam. As a result, the
government plays a significant role in propagating Islam and establishing Islamic ideals
among Muslims. The Federal and State governments' engagement demonstrates the centrality
of Islam in creating the Malaysian society. Muslims make up more than 60% of the
population. Malaysian society is heavily influenced by Islam, although it also embraces
religious diversity and tolerance. Malaysia’s Federal Constitution delineates the power of the
Federal government and the State governments with regards to the administration of Islamic
affairs. The power of the State government is restricted to the administration of Shari’ah
Laws and the administration of Islamic affairs in each state. The Constitution's Ninth
Schedule clearly stipulates that State governments are responsible for managing state
mosques and Malay traditions. As a result, each state has its own legislation for governing the
management of Islamic affairs and the practice of Malay traditions. Because of this, there
may be variances in how the Shari'a Laws are applied and upheld, as well as how Islamic
matters are managed across Malaysia's states.

The Islamic Religious Council (IRC) and the Islamic Religious Department (IRD) are
two crucial organisations that manage Islamic matters in each Malaysian state. IRC is in
charge of creating policy while IRD is responsible for policy execution. IRC council advises

893Ruhollah Khomeini, "Governance of the Jurist (Velayat-e Faqeeh): Islamic Government." The Institute for
compilation and publication of Imam Khomeini’s works. p. 78. Disponible sur: http://www. iranchamber.
com/history/rkhomeini/books/velayat_faqeeh. pdf (1970).

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the rulers on all matters pertaining to Islamic administration. Apart from counselling rulers on
Islamic matters, most IRC members are actively involved in economic arrangements that
assist Muslims in the state such as zakat collection and distribution. The IRD works in
fostering and advancing Islam in every state including planning, organising, and carrying out
Islamic programs as guided by the IRC. For the benefit of the community, the IRD offers
fundamental infrastructure such as mosques and religious institutions (at the primary and
secondary levels). The administration of the IRD is often divided into sections that are in
charge of doing research and development, promoting Islamic doctrines, running mosques,
and conducting religious instruction.

The Department of Islamic Development (JAKIM) at the federal level supervises the
uniformisation of the management of Islamic matters in every state. JAKIM was established
by the Federal government in 1968 to reduce any discrepancies in Islamic affairs in Malay
states. As a central organisation, the department is also responsible for establishing,
standardising, and coordinating the application of Shari'a law, the management of Islamic
affairs throughout all states, and the execution of those laws.894 The following section
discuses the role Islamic governance in promoting peace and security.

IV. THE ROLE ISLAMIC GOVERNANCE IN PROMOTING PEACE AND
SECURITY

4.1 Masjid Development
Mosques are normally associated to Islamic religious practices including salat, dhikr, and
dua. Physically, they are regarded as universal places of worship for Muslims and are seen as
the best venue to celebrate Islamic festivals. It is important to note that the term "ibadah"
(religious rites) itself does not just refer to the act of worshiping God. Its scope is far broader
and encompasses all actions that must be taken in accordance with Islamic etiquette in every
area of life.895 In Malaysia, mosques are more than centres of prayers, but they act as
community institutions that enable Muslims to come together and support the development of
the Muslim economy. Members of the management committee, made up of capable members
of the community, are tasked with running the mosque successfully to guarantee that it is
used effectively by the worshippers.896 Currently, there are roughly 6,464 mosques and
17,564 prayer locations in Malaysia, according to the Jabatan Kemajuan Islam Malaysia
(JAKIM, 2021). As a result, it is estimated that these mosques oversee roughly 6,464 mutual
charity organisations, also known as "khairat kematian" in Malaysia. The conditions, rules,
procedures, and management of mutual charity may be essentially informal and differ from
mosque to mosque.897 Mosques are classified into four types: State Mosques, Royal Mosques,
Jameq Mosques, and Kariah Mosques. The Jameq Mosques are the main mosques that
receive funds from government, corporate, and public donations.898

In general, state mosques in Malaysia have little autonomy in terms of financial
management. State mosques receive funds from two sources: state government allocations

894 Sulaiman, Maliah. "The internal control procedures of mosques in Malaysia." Revista Universo Contábil 3,
no. 2 (2007): 101-115.
895 Omar, Nizaita, at. el. "Framework of Empowering Mosque Institution in Malaysia." INTERNATIONAL
JOURNAL OF ACADEMIC RESEARCH IN BUSINESS AND SOCIAL SCIENCES 9, no. 9 (2019).
896Abd Hamid, N. A. "The Governance Practices of Mosques: A Study of Public Perception in
Selangor." Australian Journal of Basic & Applied Science 9, no. 31 (2015): 14-23.
897 Ibrahim, Sharifah Norhafiza Syed, at, el. "Good Governance Practiced By The Malaysian Mosque
Committees In Managing Mutual Benevolence: Member’s Perception." Journal of Fatwa Management and
Research 26, no. 2 (2021): 50-62.
898 Mohamed, INTAN SALWANI, at, el. "Mosques Fund Management: A Study on Governance and Internal
Controls Practices." Recent Advances on Finance Science and Management (2015).

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and public contributions. The monies collected from the state government are mostly utilised
for mosque maintenance and religious activities. Donations from the general population are
utilised to fund religious and social activities that are not financed by the government.899 The
government recruits mosque's officers who are paid salary. These officers are often appointed
by the IRD or the IRC. The Imm Besar (Chief Cleric), the Imm (Cleric), the Khtib (Friday
sermon reader), the Bill (called to prayer), and the Siak are the officers of state mosques
(mosque keeper). Except for the Siak, who is in charge of the mosque's cleanliness, these
officers mostly conduct religious tasks. These officers' responsibilities include, among other
things, ensuring that the mosque's programs and activities are properly arranged.900

The British administration first passed a legislation requiring Muslims to pray in
mosques on Fridays in Perak in 1885. This is when the legal history of mosques in Malaysia
began. Muslims were subject to penalty under the law if they failed to attend the masjid on
Friday for their prayers.901 Section 3 of the Enactment administrative law stated: “Any male
person over the age of sixteen years residing within three miles of a Masjid presided over by
a Priest of his own Muzahaf who, without reasonable excuse to be communicated to and
allowed by the nearest Assistant Kathi or Trustee of the Masjid, shall fail to attend Prayers at
such Masjid on every Friday or who after Saalam shall fail, except with the permission of the
Kathi, to remain for at least one hour in the Masjid to hear the teaching of the Imam or Ulama
shall be liable on conviction before the Court of a Penghulu to a fine not exceeding fifty cents
for every such offence.”902

Several mosques in Malaysia provide a variety of facilities and services and are active
throughout the day and night in promoting Islam to the Malay community. Some of the
conveniences include: Friday gatherings, morning lecture, Zohor talk, Qur'an study, Islamic
class, Arabic language class, Qiyam-ul-Lail, hospital visitation program, single mother's
program, complete academic curriculum, nursery school, youth school vacation program,
basic religious education program, health-care program, cooking class, flower-making
workshop, aerobics class (fitness class), blood donation campaign, Iftar and Sohur programs,
cow slaughtering program for Eid-ul-Adha, Friday Bazar, and funeral preparation program.903
When a Muslim dies, the other Muslims are obligated to appropriately handle his or her
burial. Funerals are administered by mosque committees and paid via mutual generosity. This
fund's administration adheres to the 'ta'awun' idea as outlined in the Holy Quran (5:2), "904
Some of the important functions of Malaysian Masques are presented in the following figure

Educational Social Economic Welfare Judicial Others
Religious Zakat collection Market and Social welfare Law,
education and distribution shops includes (Sharia) Recreational such as
playing zone for
Non-formal Services: Health Restaurants Rehabilitation Divorce children’s and youth
education for facilities: and café, centre, issues
children, adult, (hospital, clinic, exhibition Orphanages, Leisure activity facility,
parks, Museum,

899 Sulaiman, Maliah. "The internal control procedures of mosques in Malaysia." Revista Universo Contábil 3,

no. 2 (2007): 101-115.
900 Sulaiman, Maliah. "The internal control procedures of mosques in Malaysia."
901 A. Aziz, S (2007). Islamic Criminal Law In The Malaysian Federal Structure: A Constitutional Perspective,

15 IIUMLJ 101
902 Cited in Miskam, Surianom, and Nurhani Salwa Jamaluddin. Current Legal Issues Concerning Masjid in

Malaysia. 2014.
903 Afridi, Muhammad Adil Khan. "Contributions of mosques towards building Malay society: case study on

masjid Wilayah Persekutuan Kuala Lumpur." In International Conference on Islamic Civilization and Malay

Identity. 2011.
904 Ibrahim, Sharifah Norhafiza Syed, at, el. "Good Governance Practiced By The Malaysian Mosque
Committees In Managing Mutual Benevolence: Member’s Perception."

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The Role of Islamic Governance in Promoting National Peace and Security: The Case of Malaysia (2010-2020)

female and medical treatment, space, burial Fatwa activities for
intellectuals. and nursing). services. issue welcoming non-
Training for Accommodation Rentable Economic: Muslim for mutual
imams for travellers. room for Charity, relief, understanding and
Muslims. poverty learning about Islam
alleviation, Digital portal for
donation mosque,

Facilities: Disaster Da’wa programs
library, management
classroom, programs,
certification,
scholarship Marriage
centre, programs
publication.

Figure 1: Mosque Initiatives for Promoting Peace and Security in Malaysia

These multidimensional efforts of mosques are contributing social peace in Malaysia.
The following section will discuss the zakat management.

4.2 Zakat for Economic and Social Peace
Zakat contributes significant role in Islamic society throughout its history. It is a financial
mechanism prescribed by the Quran that intends to purify the soul and the resources of zakat
payers. Every zakat payer would not only receive pleasure from Allah SWT for fulfilling the
requirement, but they would also receive blessing for the assistance they provided to other
Muslims. Performing zakat generates individuals who uphold religious obligations while also
being attentive and caring to society. Zakat works to free people from the misery of poverty
by providing temporary or permanent means of subsistence to build a successful and peaceful
community. Islam encourages adherents to ensure the less well-off may lead secure lives.
Furthermore, zakat attempts to aid individuals who experience unexpected financial and
material crises such as debts, diseases, and natural calamities who are normally not in the list
of zakat recipients.905

The explanation of eight asnaf who are qualified to receive zakat are: (1) Needy: a
person who does not have any property and source of income, or, if he/she has a source of
income it would not fully meet his/her basic needs. (2) Poor: a person who has property or
means of livelihood but is not able to meet his/her own needs or that of his/her family
members. This individual is not required to perform Hajj and zakat, but instead is entitled to
receive zakat and fitrah. (3) Amil: a person who is involved in the management of charity,
whether as an officer or management support staff at all stages. He/she is entitled to acquire
certain portion of the earnings from zakat as wages. (4) Mualaf: aanon-Muslim who recently
converts or ‘whose heart is made inclined’ to Islam. It is believed that giving zakat to mualafs
can be seen as a recognition and reward for choosing the right path and as a way to show the
beauty of Islam. (5) Ar-Riqab: Muqatab is a slave who desires for independence. (6)
Gharimin: an individual who qualifies for zakat because they have been declared bankrupt or
are excessively burdened by debt. (7) Fisabilillah a person engaged in a "battle" or making an
attempt to support, preserve, and advance Islam and Islamic beliefs. (8) Ibnu Sabil: a traveller

905 Meerangani, Khairul Azhar. "The Role of Zakat in Human Development." SALAM: Jurnal Sosial dan
Budaya Syar-i 6, no. 2 (2019): 141-154.

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who confronts running out of money while leaving the nation in which they were born and
living and whose trip is beneficial to Islam.906

The State Council of Islamic Religion, or Majlis Agama Islam Negeri (MAIN) manages
zakat in every state of Malaysia. Under MAIN, specific administrative institutions are
operationalised to handle and properly distribute zakat that opened a new horizon of zakat
management in Malaysia. The first centre of zakat collection or Pusat Pungutan Zakat (PPZ)
was founded in 1991 in Wilayah Persekutuan (Federal Territories) that continuously followed
by other states such as the Selangor Zakat Board or (Lembaga Zakat Selangor (SZB))
previously known as the Centre Zakat of Selangor (Pusat Zakat Selangor) and the Central
Management of Zakat or Pusat Urus Zakat in Pulau Pinang (Ahmad Shahir & Adibah, 2010).
The Zakat Distribution Centre is responsible to assist asnaf who are in a dire circumstance so
that their daily burden is reduced.

The management of the nation's zakat (tithe) has been improved through the
corporatisation of the Federal Territory Islamic Religious Council's Zakat Collection Centre
(PPZ-MAIWP). The growth in zakat donations and the number of zakat donors each year
serve as evidence for this. Such an accomplishment greatly aids the asnaf (zakat recipients) in
completing the zakat system cycle.907 According to MAIWP Chairman, the Islamic religious
council of Federal Territory is eager to follow any effort to gradually boost zakat collection in
the Federal Territory. “PPZ-MAIWP through various programs and promotions and close
collaboration with all parties, let it be the public, corporate sectors and the NGOs as well as
the media will be able to contribute towards the enhancement of zakat awareness among
Muslims in Federal Territory.”908 The PPZ collects zakah primarily on the basis of wealth.
The following things are classified for zakat collection: (i) employment, (ii) income, (iii)
savings, (iv) business, (vi) gold and (vii) silver, (viii) shares, and the collected fund of (viiii)
Employers' Provident Fund or EPF (MAIWP Annual Report, 2010: 36). Figure 2 depicts the
data of zakat collection performed by the PPZ on behalf of the MAIWP from 2010 to 2020.
This entire zakat collection is based on the categories of total property or wealth as defined
above. It shows that the amount of zakat collection has significantly increased that enhanced
the capacities to support more asnaf and several activities related to that.

Year Zakat collection in million Number of payers
RM
2010 89,110 payers.
2011 336.70 100,497 payers
2012 394. 10 114,442 people
2013 451.30 128,061 people
2014 517.30 141,748 people
2015 532.9 153,996 people
2016 557.6 161,141 people
2017 580.6 169,372 payers
2018 615.2 180,958 payers
2019 651.2 189,211 people
2020 536.69 359,661people
584.31

Figure 2: Zakah Collection from 2010 to 2020
Data Sources: MAIWP Annual Reports 2010-2020

906 Embong, Mohd Rodzi, Roshaiza Taha, and Mohd Nazli Mohd Nor. "Role of zakat to eradicate poverty in

Malaysia."
907 MAIWP Annual Reports 2018. P.6.
908 MAIWP Annual Reports 2018. P.13.

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According to the MAIWP Annual Reports (2010-2020) zakat distribution is done via
28 zakat aid schemes administered through the Baitulmal Division. These schemes are
categorised into four aspects: social, economic, education, and welfare. In term of social
contribution, the overall goal of the social development activity is to assist the zakat
beneficiaries who are muallaf, al-ghrimin, faqr, and miskin. Through a number of programs,
such as monthly financial assistance provided to the groups of faqr, miskn, and muallaf for a
year, MAIWP helps zakat beneficiaries meet their basic necessities. The housing support
help with down payments, rent payments, home building and remodeling. Al-ghrimn (aid for
the needy) is provided to people who are indebted to meet their basic necessities such food,
clothes, shelter, and education, as well as medical assistance.

In terms of economic significance, The MAIWP works to support and inspire zakat
beneficiaries to produce their own sources of income through business and entrepreneurship
so that they can lead a comfortable life. The help includes business support that might come
in the form of cash, or in the form of tangible resources, like equipment supplies and other
things. By providing a deposit payment for the purchase of taxi cars, MAIWP's hire purchase
deposit for taxi aid aims to assist taxi drivers in becoming the owners of their own taxis. The
renting of taxi cars won't be a hardship for the cab drivers as a result. In education
perspective, MAIWP develops many educational programs that include basic and secondary
school levels of study, as well as school fees and equipment for students. Scholarships are
also available for undergraduate and postgraduate courses at the university level. In welfare
perspectives, MAIWP provides aids to those who have been affected by disasters such as
flood, fatal accidents, landslide, fire, burglary, and storm. It also has funds to encourage
Qur'n memorisation; aid for non-governmental organisations (NGO) for their efforts in
spreading dawa to society, religious and educational institutions, and aid for marriage in
order to prevent and overcome social problems such as zina or adultery, assistance for ibn al-
sabīl and takāful coverage.

Thus, Malaysia demonstrates effectivity in institutionalising zakat and taking advantage
of technology to calculate zakat, provide payment, and introduce alternatives for monthly
payments. Several locations, particularly Selangor and Kuala Lumpur, have collected the
zakat money and distributed it online in achieving trust. This enables individuals to follow
and keep an eye on the zakat collection and distribution process. Additionally, there are
yearly reports that provide explanations and demonstrate where and how zakat was spent.
The Malaysian experience has so far been quite helpful to others, but there is still room for
improvement.909 The authority should include the name of the beneficiaries into a database to
detect persons who receive benefits from many institutions above what is necessary, and this
would allow for the possibility of more people receiving benefits. Such a database would
improve coordination between state and federal agencies. The distribution of zakat can be
channelled following certain problem identified each year such as helping student from low
income households, refugees, or those who are in debt. Another year can be focused on other
important crisis.910

4.3 Amr bil m’aruf or Islamic Da’wa
In governing Islamic da'wa in Malaysia, it is important to consider the reality, evaluate the
challenges, and create strategies that will prevent societal peace and security from being
threatened. Malaysia's population is highly diverse, with many ethnic groups and religious
connections such as Taoism, Hinduism, Christianity, Buddhism, Confucianism, Sikhism,
Bahai, and ancestor worship although the primary religion in Malaysia is Islam. Thus,

909 Migdad, Abdalrahman. "Managing zakat through institutions: case of Malaysia." International Journal of
Islamic Economics and Finance Studies 5, no. 3 (2019): 28-44.
910 910 Migdad, Abdalrahman. "Managing zakat through institutions: case of Malaysia."

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Malaysia is home to people of many faiths. However, Islam influenced all area of Malays'
life, including politics, society, business, and culture. This enormous expression is the
product of decades of consistent Islamic da'wa activities. Political leaders, ulema, Islamic
scholars, religious organisations, educational institutions, bureaucrats, and government
policies all worked together to expedite Malaysia's Islamisation process and enhance societal
harmony and peace. Thus, Islamic da'wa in Malaysia is operationalised through an umbrella
approach in which government, Islamic political parties, ulama, and civil society all come
together to a similar vision of Islamisation. These collaborative efforts produced effective
results in the Islamisation of society.

The government of Malaysia performed the function of amr bil ma’ruf following
several processes such as policy formulation, institutional approaches and legal supports,
influencing da’wa mechanism to inform the real ideology of Islam and earn a behavioural and
attitudinal transformation in the social interaction to prevail a congenial atmosphere for peace
and security. In terms of policy development, the Najib administration embraced the
Wasatiyyah policy, which emphasised a balanced approach in public services and social
interactions,911 and Maqasid Sharia, which focuses on safeguarding human society's basic
human rights.912 The Pakatan Harappan (PH) government followed with the Rahmatan Lil-
Alamin policy which focuses on a broader practice of love, compassion, and harmony913 in
order to achieve communal harmony and societal peace.

In the da'wa method, the real message of Islam on social peace and security has been
conveyed through Islamic da'wa, which supports community harmony in a multi-religious
society. The ulema in mosques through their lectures and Friday sermons disseminate the
massages of Islam for religious tolerance and communal harmony. The Quran clearly states
that “Let there be no compulsion in religion: Truth stands out clear from error: whoever
rejects evil and believes in Allah has grasped the most trustworthy bond that never breaks and
Allah hears and knows all things.” (Baqarah 2: 256). Since Islam inspires people to convert to
Islam voluntarily, the Quran explicitly prevents Muslims from enforcement. Rather, their
conversion to Islam should only depend upon their wills and faiths in Islamic beliefs and
practices or in Islamic teachings.

The Quran guides believers to approach potential converts to Islam in one of three non-
violent ways considering their situations, the level of knowledge and education. The three
approaches are (1) hikmah, (wisdom) (2) maoi’ja (good advice and encouragement) and (3)
muzadalah (well arguments and conversation). According to the Quran, “invite ˹all˺ to the
Way of your Lord with wisdom and kind advice, and only debate with them in the best
manner. Surely your Lord ˹alone˺ knows best who has strayed from His Way and who is
˹rightly˺ guided.” (Nahl 16: 125, Sahih Translation). If none of these three approaches
succeed in persuading a non-Muslim to convert to Islam, Muslims must seek another
instruction or guideline specified in the Koran which states, "For you is your religion and for
me is my religion" (Kafirun 109: 6). This implies that if any non-Muslim has been

911 Ibrahim, Mazlan, Jaffary Awang, Latifah Abdul Majid, Haziyah Husin, Muhd Najib Abdul Kadir, and Abur
Hamdi Usman. "Wasatiyyah discourse according to Muslim Scholars in Malaysia." Advances in Natural and
Applied Sciences 7, no. 1 (2013): 6-15; Hanapi, Mohd Shukri. "The wasatiyyah (moderation) concept in Islamic
epistemology: a case study of its implementation in Malaysia." International Journal of Humanities and Social
Science 4, no. 9 (2014): 1.
912 Asutay, Mehmet, and Astrid Fionna Harningtyas. "Developing Maqasid al-Shari’ah Index to evaluate social
performance of Islamic Banks: A conceptual and empirical attempt." International journal of Islamic economics
and finance studies 1, no. 1 (2015): 5-64; Rabe, Noor Suzilawati, Mariana Mohamed Osman, Syahriah Bachok,
and Alias Abdullah. "Quality of life: review on an approach integrating Maqasid al-Shariah." Advanced Science
Letters 23, no. 4 (2017): 2718-2721.
913 bin Ahmad, Abdul Mua’ti Zamri. "From inculcating Islamic values to ‘Rahmatan-lil-alamin’: Promulgating
various approaches of Islam in Malaysia." Journal of Malay Islamic Studies 3, no. 1 (2019): 29-48.

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counselled to embrace Islam and they have been unable to persuade him, they should be
allowed to continue practicing their own religion. This Islamic framework of da’wa is
prescribed in Islam which guides Islamic da’wa in Malaysia.

In terms of governments legal initiatives, in Malaysia, administration of Islam and non-
Islamic faiths are distinct. Federal and State jurisdiction of Islamic law and administration are
distinct under the constitution. Each of the peninsula's eleven governments has its own
legislative framework for the implementation of Islamic law. The provisions of these laws
allow the traditional ruler of each state to assign responsibilities among members of the
religious council (majlis agama), the Islamic judiciary, mosque employees, and registrars of
Muslim marriages and divorces, as well as instructing the Islamic judiciary on legal
procedures without violating the shari'a's substantive law. Except for the Federal Territory,
the federal parliament has no legal authority over the administration and law of Islam in the
several states. Islamic religious department also implemented a number of specific laws to
control the Muslim moral such as khalwat (close proximity).914

The position of Islam and other religions' rights to be practiced in peace and harmony
across Malaysia are spelled out in detail in the Federal Constitution of Malaysia. Article 3(1)
of constitution defines "Islam is the religion of the Federal; but other religions may be
practiced in peace and harmony in any part of the Federation." According to this
constitutional clause, followers of all religions are free to follow their religious beliefs and
practices in peace and harmony in any Malaysian location. Nevertheless, a Malay who is born
as a Muslim may face difficulties or even unsuccessful bids to convert from Islam as shown
in the most well-known case of Lina Joy. Article 8 (2), of the Federal Constitution further
defines, “Except as expressly authorised by this Constitution, there shall be no discrimination
against citizens on the ground only of religion, race, descent or place of birth in any law or in
the appointment to any office or employment under public authority.” The job employment
open for all races regardless of religion and form of identity except the recruitment that is
directly related to a particular religion such as the recruitment of imam or leader of a mosque
has to be a Muslim, Christian for a church, Hindu in Hindu Temple, and Buddhist for
Buddhist temple.

Malaysians are also not required to pay religion taxes under the Federal Constitution of
Malaysia. According to Article 11 (2). “No person shall be compelled to pay any tax the
proceeds of which are specially allocated in whole or in part for the purposes of a religion
other than his own.” Religious levies for religious reasons are imposed on religious members
by their respective religious bodies. For example, Muslims in Malaysia can exclusively levy
religious taxes on Muslims. They are not permitted to levy religious levies on non-Muslims.
Non-Muslims in Malaysia are likewise prohibited from levying religious charges on
Muslims. As a result, any religious group in Malaysia is free to levy any tax or fee on its
members.915

In terms of Institutional approach, the Islamic institutions such as JAKIM, IKIM, and
Islamic studies department of several universities organise civilisational dialogue for mutual
understanding, and they also publish several research to guide social peace and communal
security. The department of National Unity and Integration under the prime minister’s office
arranges several programs and conducts research for national unity. JAKIM has taken
responsibility for carrying out action plans and has furthermore guided other Islamic
institutions in Malaysia's interreligious activities. JAKIM provided counter narrative against
extremist’s ideological definition of jihad. It has established the Jihad Concept Explanation

914 Lee, Raymond L.M. and Ackermann, Susan E., Sacred Tensions Modernity and Religious Transformation in
Malaysia, US: University of South Carolina Press, 1997. P. 137.
915Abubakar, Ibrahim. "The religious tolerance in Malaysia: An exposition." Advances in Natural and Applied
Sciences 7, no. 1 (2013): 90-97.

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Action Committee to eradicate misconceptions on jihad at various social groups and
institutions, including schools, universities, mosques, suraus (community prayer areas), and
the Internet. the Action Committee is represented by The Civil Defence Department, the
National Security Council, the Royal Malaysian Police (PDRM), the Institute of Islamic
Understanding of Malaysia (IKIM), and Al-Hijrah Media Corporation.916

During the COVID-19 pandemic, JAKIM and the Federal Territories Islamic Religious
Department (Jawi) initiated the idea of Musadah to financially support people fighting
against COVID-19. Both institutions are under the prime minister’s department, and through
their several agencies allocated RM25.6 million in the form of zakat funds up until March 24,
2020. They also provided several food items to needy people and distributed medical
equipment to the frontliners working to combat COVID-19.917

4.4 Nahi anil munkar, Preventing Evils
The principal goal of Islamic governance is to prevent fasad, or evil. To stop people from
participating in immoral or illegal activity that jeopardises social peace and security, the
government must maintain a careful eye on individuals. Given this, the respective Islamic
departments of different states have taken it upon themselves to act as so-called “Sharia
police”. This team is typically made up of four or five (mostly male) personnel from the
Islamic department who are given the authority to apprehend Muslims who breach Islamic
principles as outlined in each state's Syariah Criminal Offences Act. The Syariah Criminal
Offences Act criminalises a wide range of actions that might jeopardise Muslims' social,
spiritual, and physical well-being and undermine Islam's sacredness.

These included:
(a) transgressions that damage a Muslim’s aqidah or faith (e.g., wrongful worship;

false claims to prophethood; spreading false doctrines);
(b) offences that violate the sanctity of Islam and its institution (e.g., insulting Islam;

displaying contempt for Qurʾanic verses; belittling the fasting month of
Ramadhan by selling food to Muslims or eating in public; alcohol consumption;
gambling); and
(c) various offenses (e.g., providing false evidence, information, or statement;
tempting a married woman; instigating a husband or a wife to neglect [marital]
duties). The section in the Syariah Criminal Code Act 1997 referring to "offenses
relating to decency" is relevant to our discussion here (Federal Territories),918
The offenses are enlisted form section 20-29. These are: incest, prostitution, pimping,
sexual intercourse out of wedlock, an act of preparatory to sexual intercourse out of wedlock,
anal intercourse, (liwat), sexual relation between women (musahaqah), illicit proximity
(khalwat), male person impersonating as woman, indecent acts in public place.919 These
Islamic prohibitions on all forms of homosexuality and pre- and adulterous heterosexual
intercourse are "haram" offenses and these major legal violations are subject to governmental

916 Jani, Muhammad Haziq Bin. "Countering violent extremism in Malaysia: Past experience and future
prospects." Counter Terrorist Trends and Analyses 9, no. 6 (2017): 6-10.

917 Azril, Annuar, Malay Mail report, Here’s how Jakim, Jawi have utilised over RM25m to aid Covid-19 fight.
25 Mar 2020. https://www.malaymail.com/news/malaysia/2020/03/25/heres-how-jakim-jawi-have-utilised-over-
rm25m-to-aid-covid-19-fight/1849867
918 LAWS OF MALAYSIA, ACT 559, SYARIAH CRIMINAL OFFENCES (FEDERAL TERRITORIES) ACT
1997, Incorporating latest amendment - P.U.(A) 251/2002. http://www2.esyariah.gov.my/esyariah/mal/portalv1/
enakmen2011/Eng_act_lib.nsf/858a0729306dc24748257651000e16c5/bced11b697691518c8256826002aaa20?
OpenDocument
919 LAWS OF MALAYSIA, ACT 559, SYARIAH CRIMINAL OFFENCES (FEDERAL TERRITORIES) ACT
1997.

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punishment. Although the Syariah Criminal Offences list is largely alike across all of
Malaysia's states, the penalties for the same violation might vary from state to state. For
instance, the maximum punishment for khalwat in the Federal Territories (which include
Kuala Lumpur) is a fine of RM 3,000, up to two years in jail, or both. The punishment for the
identical act in Kelantan is far less severe and is set at rm 2,000 in fines, a year in jail, or
both.920

Malaysian Syariah law is founded upon the Quran, Hadith, (prophetic narrations),
Sunnah, (prophetic tradition) and the interpretations of these sources from fuqaha (experts of
the Islamic jurisprudence).921The function of nahi anil munkar is operationalised through
several government institutions. In this aspect, JAKIM took the main responsibility for
preventing evil. It supported a fatwa that forbade Muslims from doing yoga. In order to
prevent zina, it has urged Muslims not to celebrate Valentine's Day and has outlawed women
from acting as men to prevent lesbianism. It has ordered all performers and filmmakers to
avoid nudity in films, issued rules for concerts, carnivals, and condemned the sight of a group
of Muslim women in a widely circulated video clip in which they were embraced by a
Korean band member during a concert. JAKIM threatened the organisers with legal action if
they do not follow its requirements.922

For preventing HIV and AIDS in Malaysia, JAKIM jointly worked with the Ministry of
Health, the Malaysian AIDS Council and other relevant public institutions to design a
practical strategies and intervention program that support to reduce HIV infection. JAKIM
also dedicated to social awareness among Muslims in Malaysia by encouraging to practice
Islamic ethics and guidelines to prevent HIV disease.923 Beside JAKIM, a non-judicial
Islamic bureaucratic entity, the Sharia Courts and the Judiciary pursue the goal of
encouraging virtue and prohibiting evil. Malaysia's Sharia court takes the lead in
implementing Sharia rules in this area. Sharia courts, which have been adjudicating Islamic
affairs since the early 1970s, have been updated, resulting "the elevated status of Shariah
courts on par with civil courts" in 1988 as a consequence of constitutional revisions passed by
the Malaysian parliament.924

V. FINAL REMARKS
Islamic governance in Malaysia performed significantly which provides an empirical
example for other Muslim countries. Since Islam guides for peace and security, the
government’s authority rightly followed the four basic elements of Quranic governance
which include prayer management through developing mosques, zakat management,
encouraging good acts, and preventing wrong in society. The mosque as an institution
executed several functions such as religious teachings, social counselling on Islamic affairs,
and arrangement for non-Muslims for mutual understanding. In zakat governance, the
religious institutions collected a significant amount of money and distributed it among several
classes of the society as directed by the Quran. The government implemented numerous
policies, used several practical techniques, upheld the constitution that governs citizens'
rights, and upheld legal function for maintaining social harmony to carry out amr bil ma'ruf,

920 Jani, Muhammad Haziq Bin. "Countering violent extremism in Malaysia: Past experience and future
prospects."
921 Nurul Huda Mohd. "Intimacy Under Surveillance: Illicit Sexuality, Moral Policing, and the State in
Contemporary Malaysia."
922Malaysiakini “‘K-Pop fiasco is why Islam forbids such concerts”, 12 January, 2015.
https://www.malaysiakini.com/news/286088
923 Sern, Tham Jen, and Hasmah Zanuddin. "Affirmative religious response culture to HIV and AIDS:
Understanding the public relations role of JAKIM in curbing the epidemic among young Muslim couples in
Malaysia." Asian Social Science 10, no. 13 (2014): 8.
924Mohamad, Maznah. The Divine Bureaucracy and Disenchantment of Social Life. 90.

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or performing good. The government engaged religious bureaucrats who are committed to
upholding peace and security in Malaysia and carried out numerous strategies and legal acts
to prevent evils.

However, some improvements are still required, such as the digitalisation of zakat
recipients, where their names will be enlisted with current information about their identities.
Zakat distributors should clearly disclose full data on how many clients got financial
assistance and which categories of zakat reception they fall into. These will provide a more
complete picture of zakat administration. More cooperation and coordination from the federal
government to the state government is required to encourage good and prohibit evil in
society. Moreover, the service channels of the government should be shortened to avoid
bureaucratic complexity. More importantly, as a government of a multi-racial and multi-
religious society, the priority of Islamic governance is to ensure peace and harmony not just
among Muslims but across all communities. Maqasid Shariah, with its emphasis on human
rights and justice should be the main guide as opposed to literal interpretation that could
cause fissures when the implementation pivots away from Islamic values of maintaining
peace. Islamic governance has the framework for national peace and security, but the
execution has to be improved so that Malaysia becomes a peaceful nation to everyone
regardless of faith or skin colour.

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22 October 2022
E-ISBN 978-967-491-267-3

p. 247-262

20. FEASIBILITY OF A MULTIMODAL
TRANSPORT REGIME FOR MALAYSIA

Prem Kaur A/P Bahal Singh
PhD Candidate, Ahmad Ibrahim Kulliyyah of Laws,

International Islamic University Malaysia
Email: [email protected]

ABSTRACT
The present legal framework of Malaysia for transport industry goes way back to
1950. Clearly, Malaysia needs a new transport regime, possibly a multimodal
transport regime especially after the effects of the Covid 19 pandemic on the
transport logistics sector which was devastating and crippling. In formulating “A
Multimodal Transport” regime for Malaysia, this paper discusses the loopholes in
the international and regional regimes for the transport industry and points out
why a particular regime may or may not fit into “A Multimodal Transport”
regime for Malaysia. Regimes discussed are international and regional regimes of
the sea, air, road and rail, namely The Hague Rules, The Hague Visby Rules, The
Hamburg Rules, The Rotterdam Rules, The Warsaw and Montreal Convention,
The CMR Convention (Convention relative au contrat de transport international
de marchandises par route), COTIF-CIM (The International Rail Carriage
Convention) and The ASEAN Frameworks.

Keywords: Multimodal Transport Regime, Sea Regimes, Air Regimes, Road and
Rail Regimes.

I. INTRODUCTION
With the advent of the China’s Belt and Road Initiative925 and other commercial challenges in
the trade industry it is important and advisable for Malaysia to have a good and strong
regime. The demand for international multimodal transport law harmonisation stems from the
recognition that disparate standards impair the efficiency of multimodal transport and
international commerce promotion.926

Different liability regimes apply to multimodal transport operations based on the mode
of conveyance utilised. When boundaries are crossed, regimes change. Affected parties are
free to select the set of rules that will govern their contractual relationships.

In contrast, some regimes provide mandatory liability provisions for
the carrier, disallowing them to pick and choose. The contractual and legal
relationship between carrier and shipper is in jeopardy, more so when

925 https://www.cfr.org/backgrounder/chinas-massive-belt-and-road-initiative, accessed on 21/2/2022.
926 Nikaki T, “Bringing Multimodal Transport Law into the New Century: Is the Uniform Liability System the
Way Forward”, J. Air L. & Com., 78 (2013): 69.

Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
International Peace and Security: The Achievement of the United Nations and the Way Forward

there is clash in the mandatory rules, rendering uncertainty between all the
contracting parties.

The unimodal regimes differ from each other and that the want of a workable law for
the multimodal transport model is much needed. However, there are issues that need to be
sorted when it comes to the unimodal and multimodal conventions. One such area is the
compulsory character of the multimodal convention. The Multimodal Convention makes it
mandatory927 for its provisions928 to be applied.929

II. DEFINITION OF MULTIMODAL TRANSPORT
The definition of ‘multimodal transport’ under Article 1 of the United Nations Convention on
International Convention on International Multimodal Transport of Goods (MTC)930 is “the
carriage of goods by at least two different modes of transport of the basis of a multimodal
transport contract from a place in one country at which the goods are taken in charge by the
multimodal transport operator to a place designated for delivery situated in a different
country.”

The critical elements of the definition above are that there must be a minimum of two
distinct transportation modes, the travel being from one country to another, there exists a
single contract agreement covering the entire voyage, and the operator must be a multimodal
transport operator (MTO).

A multimodal transport operator is defined as “any person who enters into a multimodal
transport contract on his or her own behalf or through another person acting on his or her
behalf and acts as a principal, not as an agent or on behalf of the consignor or the carriers
participating in the multimodal transport operations, and who assumes responsibility for the
contract's performance contract.”931 The MTO is the person who undertakes to arrange the
transport of goods with more than one mode of transport and issues one transport document
for the entire journey.932

Essential requirements for a multimodal transport is that there must be different modes
of transport incorporated, different countries and one transport document that covers from the
beginning of the journey to the destination of the goods.933 One entity is responsible for the
transport contract for the whole journey and acts as a principal. Thus, multimodal transport is
a system that enables the movement of products over many modes of transport, allowing the
client to integrate train, sea, air, and road under a single contract, eliminating the need to
enter into new contracts with additional carriers during the voyage.934

927 Article 3(1) Multimodal Convention.
928 Nikaki, T. Bringing Multimodal Transport Law into the New Century: Is the Uniform Liability System the
Way Forward. J. Air L. & Com., 78, 69. (2013).
929 Bolanca D, “The Multimodal Transport of Goods”, Zbornik Radova Pravnog Fakulteta Splitu, 30(1) (1993):
227-240.
930 R. DE WIT, Multimodal Transport: Carrier Liability and Documentation, (London: Lloyd’s of London
Press, 1995), 3.
931 Article 1(2) MTC.
932 Marin J, “The Harmonisation of Liability Systems for Items Lost in Transit”.
933 Hoeks, Marian. Multimodal transport law: the law applicable to the multimodal contract for the carriage of
goods. Kluwer Law International BV, (2010).
934 Harris, I., and et al, “ICT in Multimodal Transport and Technological Trends: Unleashing Potential for The
Future”, International Journal of Production Economics, 159 (2015): 88-103.

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Feasibility of a Multimodal Transport Regime for Malaysia

III. THE FEASIBILITY OF MULTIMODAL TRANSPORT OF GOODS UNDER
INTERNATIONAL REGIMES

3.1 The Hague/Hague Visby Rules
There is no provision in this regime for multimodal transport of commodities. Thus, the issue
is whether this regulation will apply to the multimodal transport contract's international
maritime leg.

3.1.1 Contract of Carriage
Under the Hague/Hague Visby Convention, a carriage contract is covered with the use of a
bill of lading or equivalent document title that includes a bill of lading935 and covers the
carriage of goods by water. It is important to highlight that this system is not applicable to
any other mode of transport like rail, road, or air. It is irrelevant to the leg that is submerged
in the sea.936 There is significant disagreement here as to whether this pertains to the maritime
stage of multimodal transport.937

Devlin J stated in Pyrene v Scindia938 “I believe the Hague Rules apply to a contract or
a portion of a contract. I say ‘part of a contract’ because a single contract may involve both
inland and sea transport; and in that instance, the only part of it that falls within the Rules is
that which “relates to the conveyance of goods by sea”, as defined in Article 1(b).

Similarly, cases such as Duke of Yare939, Colombia, and Eurocolombia-Sierra Express-
Ibn Bajjah940 demonstrate that the judiciary in the Netherlands accepts the idea that the Rules
may be applicable to maritime stage in the multimodal transport contract.

German academics maintain the Hague/Visby Rules are applicable only for contracts941
of the unimodal transport of goods, as they make no reference of multimodal carriage other
than sea942 Italian courts concur on this aspect as well.943

Another area that will cast doubt on the multimodal argument is the Hague Visby
Rules’ scope of application, which is tackle to tackle. It is only applicable in this case for the
duration of time that includes loading and unloading. This is yet another example of how
difficult it is to control a multimodal contract under a single international regime.

935 Article 1(b) Hague-Visby Rules.
936 17 September 2003, Rb. Rotterdam, S&S 2007, 63; 22 March 2003, Rb. Rotterdam, S&S 2005, 113; 26
September 2000, Rb. Rotterdam, S&S 2001, 21; 10 April 1997, Rb. Rotterdam, S&S 1999, 19; Queen's Bench
Division Commercial Court, Mayhew Foods Limited v Overseas Containers Ltd., Lloyd's Rep. 1984, vol. 1,
317.
937 The American position appears to be that they do; according to Coffey, multimodalism’s emergence in 1956
forced a reconsideration of the package rule and general limits of the Hague Rules, resulting in the Visby
modifications; Coffey, William J. “Miltimodalism and the American Carrier.” Tul. L. Rev. 64 (1989): 569.
938 Rb. Rotterdam 17 September 2003, S&S 2007, 63; Hof Den Haag 22 March 2003, S&S 2005, 113; Hof Den
Haag 26 September 2000, S&S 2001, 21; Rb. Rotterdam 10 April 1997, S&S 1999, 19; Queen’s Bench Division
Commercial Court, Mayhew Foods Limited v. Overseas Containers Ltd., Lloyd’s Rep. 1984, vol. 1, 317; Court
Canada, Captain v. Far Eastern Steamship Co., Llod’s Rep. 1979, vol. 1, 595 and Queen’s Bench Division,
Pyrene Co Ltd v Scindia Steam Navigation Co Ltd., Lloyd’s Rep. 1954, vol. 1, 321,
http://pntodd.users.netlink.co.uk/cases/cases_p/pyrene.htm.
939 Rb Rotterdam 10 Apr. 1997, S&S 1999, 19; Hof Den Haag 26 Sep. 2000, S&S 2001, 21.
940 Hof Den Haag 22 Mar. 2003, S&S 2005, 113; HR 17 Nov. 2006, LJN AY8288. See also Rb Rotterdam 22
Feb. 2006, S&S 2007, 119 (EWL Central America).
941 Bäckdén P, The Contract of Carriage: Multimodal Transport and Unimodal Regulation, (Informa Law from
Routledge, 2019).
942 Hoeks M. A. I. H, “Multimodal transport law”, (2009).
943 The Italian judiciary apparently agrees with this point of view: Tribunale of Turin 5 Jun. 2002, Chinese
Polish Joint Stock Shipping Co. v Zust Amhrosetti S.p.A., DM 2003, 1042; Tribunale of Gorizia 28 May 2003,
Corte di Cassazione 2 Sep. 1998, no. 8713, Andrea Merzario S.p.A. v Vismara Associate S.p.A. and others, DM
2000, 1349.

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Summing up, the researcher notes that the Hague/Visby Rule is capable of being a
multimodal carriage of goods regime, albeit, only for the sea leg, despite the challenges put
up by the German academics and the Italian courts.

3.1.2 Bill of Lading
A bill of lading must accompany the contract of transportation. The provisions of the Visby
Rules applicable to each bill of lading related concerns the transportation of goods between
ports located in two distinct states …944. Therefore, the bill of lading is evidence of goods and
contract for the carriage of goods, document title of which needs to be produced to show that
delivery of goods occur.

A ‘bill of lading’ is used for one or more of the stages of transit related with sea
carriage in a multimodal transportation system. They are referred to as bills of lading for
combination transport or for multimodal transit.945 They include FBL, Combiconbill, and
BIMCO Multiwaybill 95. This is true for the network approach.946They are all bills of lading,
but whether they qualify as such under the Hague/Visby Rules is another matter. Combined
bills constitute evidence of the receipt of goods and the carriage contract of goods.
Unfortunately, it cannot fulfil the requirement of being a document of title as it needs to be a
document recognised by law. This document of title need not be a negotiable instrument.947
In his judgement in the case of Rafaela S, Rix LJ, stated:

Whatever, the history of the phrase in English common or statutory law may be, I see
no reason why a document which has to be produced to obtain possession of the goods should
not be regarded, in an international convention, as a document of title. It is so regarded by the
courts of France, Holland and Singapore …

This implies that term “a bill of lading or any similar document of title” includes any
bill of lading made to order and those that name a specific consignee. The fact that the issuer
of this document accepts responsibility for delivering the goods to the party who shows the
original document and require the exchange of the original for the merchandise, assures that
the bill and the products are transferable from one party to another.

There is no justification, it is argued, to restrict the transferability of issued bills of
lading for marine transport solely. A combined bill of lading for transport should be used,
legally transferable as long as the original document948 is exchanged for commodities.

The study argues that the maritime leg of the Hague/Visby Rules should be suitable for
inclusion in Malaysia's multimodal model.

3.2 The Hamburg Rules
In contrast to the Hague/Visby Convention, the Hamburg Convention refers to multimodal
transport in Article 1(6), where it is established that carriage by water constitutes a

944 Article 10 Hague Visby Rules.
945 ‘Multimodal transport bill of lading’ is an alias for ‘combined transport bill of lading’, as is ‘intermodal bill
of lading’; Gaskell, Nicholas, Regina Asariotis, and Yvonne Baatz: Bills of lading: law and contracts.
Routledge, 2017.
946 These multimodal transport documents are all available in both negotiable and non-negotiable versions.
Many of the modern shipping documents are drafted in a form in which they can be used interchangeably for
either multimodal transport, through transport or on a port-to-port basis and include terms appropriate for each
contingency. Examples of such interchangeable ‘bills’ are the P&O Nedlloyd Bill and the Conlinebill; Gaskell,
Nicholas, Regina Asariotis, and Yvonne Baatz. Bills of lading: law and contracts. Routledge, 2017.
947 J l MacWilliam Co. Inc. v Mediterranean Shipping Co. SA (Rafaela S), [2003] 2 Lloyd 's Rep. 113. Later
confirmed by the House of Lords in J l MacWilliam Co. Inc. v Mediterranean Shipping Co. SA (Rafaela S),
[2005] 1 Lloyd’s Rep.347. Cf. Par sons Corporation and Others v C.V. Scheepvaahrtonderneming (Happy
Ranger), [2002] 2 Lloyd’s Rep. 357.
948 Schmitz T, “The Bill of Lading as a Document of Title”, Journal of International Trade Law and Policy,
(2011).

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Feasibility of a Multimodal Transport Regime for Malaysia

component of a broader contract. The Hamburg regime applies to ‘any arrangement in which
the carrier agrees to transport goods by sea in exchange for payment of freight’.

In reference to the application multimodal mode of transport contracts, the convention
states: “... a contract which involves carriage by sea and also carriage by some other means is
deemed to be a contract of carriage by sea for the purposes of this Convention only in so far
as it relates to the carriage by sea.”949 The scope of its application, which is door to door,
draws a parallel to the Warsaw and Montreal Convention on air transport.950 The Hamburg
regime utilised that there is a possibility for a contract of carriage by sea to incorporate other
means of carriage951 while retaining the status of contract of carriage by sea. Thus,
“multimodal contract” and “contract of carriage” by sea are inclusive in nature.952

It is to be noted that the sea leg in this regime is only one part of a larger multimodal
carriage. How this will affect the ‘multimodal’ contention is that it will not extend to the
entirety of the contract, it is confined to the sea leg only. The regime itself953 reaffirms this
point, stating that the duration of the carrier’s responsibility for the products is utilised with
the time during when the carrier is responsible for commodities from the loading port to the
discharge port.

Regarding time bar issues, this regime established a two-year time limit for banning
once the carrier delivers the goods or a portion thereof.954 It applies on the latest day on
which the items should have been delivered in circumstances where there has been no
delivery of goods.955 The time bar applies only if no judicial or arbitral proceedings have
been filed during the specified period.

With regards to delay of cargo, the issue can be resolved by putting the burden of proof
on the cargo claimant.956 There are statutorial delays which will have serious effects on the
application of multimodal rules. The carrier of a delayed container ship will not contest the
delay claims as the carrier will refund the freight rates automatically to avoid administration
costs and therefore the burden of proving the delay should be shifted to cargo claimant where
the problem can be avoided by decreasing the number of claims. A scholar disagrees with this
view.957 This because it would be difficult to produce evidence for a delay and therefore it
would be a difficult task. Information to support an alleged defence for a delay can only be
presented by the carrier. Being the only component of the contract to transport present when
delay occurred, it means a cargo claimant could not have a chance for a successful claim if
the burden of proving the delay was on him. The claimant can only guess the cause of the
delay. The only information available to the claimant is that the cargo has been delayed.
Although Lindstrom agrees with Gaskell with regards to the imposition of a statutorial duty
of timely delivery as worrying, but to impose the burden of proving the delay on the claimant
is unresolved. This obligation is to be for the consignor.

949 Article 1(6) Hamburg Rules.
950 Berlingieri F, “A New Convention on the Carriage of Goods by Sea: Port-to-Port or Door-to-Door”, 265.
(2003).
951 Magashi A. I., & Haruna A. L, “Revisiting Freedom of Contract in the Contract of Carriage of Goods by Sea
under the Rotterdam Rules: Service Contracts in Disguise?”, IIUM Law Journal, 24(1) (2016).
952 Because the air carriage conventions do not require the existence of an air carriage contract, it has been
argued that the terms 'contract for carriage by air' and 'multimodal carriage contract' are mutually exclusive.
Following this line of reasoning, it is argued that the second sentence of Art. 18(4) MC’s expansion of the scope
of the Convention applies solely to ancillary carriage by land, sea, or inland waterway done outside an airport,
and not to such carriage under multimodal contracts.
953 Article 4(1) Hamburg Rules.
954 Meng T. L, “The Carriage of Goods by Sea Act 1972 and the Hamburg Rules”, Malaya L. Rev., 22, (1980):
199.
955 Article 20 Hamburg Rules.
956 Gaskell N. J. J, Damages Delay and Limitation of Liability Under the Hamburg Rules 1978, (Maklu, (1994).
957 Lindström T, “Carrier Delay in Multimodal Transport”, (2008).

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With the Hague/Visby Convention, the term ‘delivery’ in this regime refers to ‘the
delivery of the goods to the consignee’ (final destination). Under the Hamburg Rules,958 this
phrase is fully supported, as the consignee must notify the carrier of any loss or destruction,
indicating the nature of the loss or harm in general, no later than the next business day after
the day the goods were delivered to the consignee. Limitation time, it is said, will not present
problems when applied to multimodal transport, regardless of whether leg of the transit is the
sea leg. Therefore, the researcher submits that the Hamburg Rules is also a good fit for the
multimodal transport for Malaysia.

3.3 The Rotterdam Rules
In terms of geographical extent of application, the Rotterdam Rules are comparable to the
Montreal Convention on air transport. In comparison to earlier regimes, the Rotterdam Rules
have a broad geographical scope. To be eligible for this regime, the contract of carriage must
specify that the point of receipt, the loading port, the delivery location, or the discharge port
are all situated inside a contractual state.

In comparison, other carriage convention comparable to this (huge geographical extent)
is the Montreal Convention, which requires that both the point of departure and destination be
in a party state.959 Apart from this advantage, this regime was also tasked with the task of
establishing legal uniformity960 When a conflict occurs, the Convention of Vienna on the
Law of Treaties details method to follow. Under common law, courts will interpret the
Vienna Convention’s provisions differently and reach various conclusions. To circumvent
this issue, the new ‘maritime plus’ instrument’s restricted network system would be expanded
to a comprehensive network regime. Therefore, the carrier’s liability and limitation of
liability should be removed from the article.

On the other hand, it is noted that in attempting to create uniformity, other problems
may crop. It may open floodgates to litigation. Problem is that this regime has failed to
appoint an international tribunal to interpret more than ninety articles in this regime that is
likely to create havoc in the future member states.961

Where a loss or destruction cannot be contained, the Rotterdam Convention apply. It’s
a gap that has not been addressed in prior regimes and which will be addressed by the new

958 Article 19 Hamburg Rules.
959 Or inside a single Convention-party State's territory if an agreed halting point exists within the territory of
another State, even if that State is not a Convention-party. Article 1 of the Montréal Convention (2).
960 The drafters established the broad scope of application primarily by their treatment of performing parties,
which included their automatic entitlement to 'Himalaya' protection. 2004; Sturley, pp. 140–148. By offering
performing parties not only the same obligation as the carrier but also the same protection under the draught
document, it was believed that a level of uniformity that would not have been achievable otherwise might be
attained. If all potential defendants in cargo damage actions were subject to the same regulations, the temptation
to initiate several cases against numerous parties would be diminished. Sturley, 2003. Finally, concerns were
raised about the geographic reach of the instrument utilised to treat performing parties. One example highlighted
was a shipment from Tokyo to Rotterdam via Singapore. The issue of whether the stevedore in Singapore that
handled the goods was subject to the draught was questioned if Japan or the Netherlands had ratified but
Singapore had not. As a result, it was determined that the planned range of the instrument would be surpassed.
This, along with the fact that the instrument provides a direct remedy against a party with which the cargo
interests do not have a contractual relationship, led in the instrument’s scope being limited to ‘Maritim
performing parties.’ This narrowing of the concept obliterated all rationale for the performing parties’ concept in
light of the new instrument’s broad scope of application; Haak, Krijn F., and Marian Hoeks. “Arrangements of
intermodal transport in the field of conflicting conventions.” Transport 3 (2005): 89-102. Intermodal transport
agreements in the face of contradicting conventions.
961 Article 2, which requires the Convention to be construed with due regard for its international character and
the need to promote uniformity in its application and the observance of good faith in international commerce,
reveals that the drafters were aware of this danger. While such an item is a wonderful first step, it cannot ensure
uniformity.

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regime, particularly in terms of liability limits. These are the instances when national laws or
even contractual obligations must be applied. Currently, only the Netherlands and Germany
have national legal systems that are expressly adapted for unlocalised loss.962

3.4 The Warsaw and Montreal Convention
For air transport, there are four conventions, which are Schedule 1, 2, 5 and 6 of the
Malaysian Carriage by Air Act 1974 (hence referred to as the “CAA 1974”), which
incorporates the Warsaw and Montreal Conventions and their protocols.

For this chapter, the research will focus on whether the Warsaw and Montreal
Conventions are feasible or viable to be part of a multimodal convention.

3.4.1 Scope and Application
Three articles will be reviewed, namely Article 31 Warsaw Convention, 38 Montreal
Convention and Article 18 of Warsaw and Montreal Conventions.

Articles 31 Convention of Warsaw and 38 Convention of Montreal prohibit air carriage
in combination with another method of transport, although Article 18 sets the duration of air
carriage, which has produced confusion.963

The Montreal Convention’s Articles 18 and 38 are nearly identical to the Warsaw
Convention’s Articles 18 and 31, however the Montreal Convention adds a provision to
Article 18(4) Montreal Convention that expands the reach of Articles 38 Montreal
Convention. Due to the resemblance, this chapter will make numerous references to Montreal
Convention.

Article 38 limits the Montreal Convention’s application to air carriage only when the
transportation to be undertaken requires another mode of transport964 in addition to air
carriage (a portion by air and a portion by any other means of transport).965 This means it
excludes application to combination carriage that does not satisfy the requirements of
Montreal Convention, Article 1.966 As a result, Article 38 is not meant to encompass the
contract in whole for multimodal transport.

The Warsaw Convention uses the same language as the Montreal Convention’s Article
31.967 Following the 1961 Guadalajara Convention, substantial uncertainty arose over Article
2 of the Guadalajara Convention.

There are two points to consider here. One example is where the article assumes that
the contracting carrier is subject to the Warsaw Convention ‘for the entire carriage specified
by the agreement’ even if the actual transportation is carried out by another carrier. This
article can be construed as ‘the Warsaw Convention applies to the entire multimodal transport
contract’ if the contractual carrier was not responsible for the actual air transportation but
contracted with other carrier to do so. The Guadalajara Convention’s aim intended to impose
restrictions on the actual carrier’s responsibility, in not burdening the contracting carrier,
which explains why there was debate in this area. The Guadalajara Convention’s goal was to
approach this matter as if a contract existed between the contractual party and the actual
carrier.968

962 In the Netherlands, see 8:42–43 BW; in Germany, see 452 HGB. For additional information on the
multimodal transport legislation in the Netherlands and Germany, read Ch. 10, sections 10.4.1 and 10.4.2.
963 Ramming K, “German Transport Law and its Effects on Maritime Law”, Int'l Bus. Law., 27 (1999): 323.
964 Fujita T, “The Comprehensive Coverage of the New Convention: Performing Parties and the Multimodal
Implications”, Tex. Int'l LJ, 44 (2008): 349.
965 Article 38(1) Montreal Convention.
966 Ibid 40.
967 Whalen T. J, “The New Warsaw Convention: The Montreal Convention”, Air and space law, 25(1) (2000).
968 Mankabady S, “The Multimodal Transport of Goods Convention: A Challenge to Unimodal Transport
Conventions”, International & Comparative Law Quarterly, 32(1) (1983): 120-140.

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The second issue is, Montreal Convention969 makes international cooperation through
the usage of a network system leg, which falls under the convention’s standards if it complies
with the criteria of Article 1 Montreal Convention.970 The text971 does not define the terms
‘combined carriage’ and ‘contract of carriage’. As a result, the construction norms of
international uniform law refer to ‘combined carriage’ as ‘multimodal carriage’.972 As such,
the interpretation that the carrier assumes liability for the leg he performed and that he is
merely an agent in the other leg of the carriage cannot be used anymore.973

In any case the interpretation cannot be used because it will have no bearing on the
scope of application of Montreal Convention. Liability for non-airborne leg is not covered by
Montreal Convention. In addition, the meaning of ‘combined carriage’ is unlikely to be
narrowed to multimodal carriage in a single contract. The researcher adds that the carriage
can be operated on separate contracts. This would render it ‘multimodal’ in any case. The
downside of this is that it is extremely confusing to do this.

To further complicate matters, Article 1(3) Montreal Convention provides that the
convention may apply if the air leg is international solely through the consolidation of a few
contracts. This rule applies exclusively to successive carriage, which is not included in a
contract for multimodal carriage. However, if the carriage is regarded ‘mixed’ or
‘multimodal’, then the restrictions of Article 38 serve no purpose because it was a mixture of
multiple unimodal contracts.

3.4.2 Period of Carriage
There is an apparent conflict between Montreal Convention Articles 18 and 38 in terms of
carriage period.974 While Article 18(3) and (4) limit the carrier’s obligation for cargo975 loss
or damage. Article 38 restricts the phrase ‘air transportation’ in this context. Extending this
term should have no effect on the application’s scope.

Article 38 says that the Convention’s provisions apply only to air transport. The
following question will be what the term ‘air carriage’ means. Article 38 amends the clause
by adding ‘provided that air transport is permitted within the scope of Article 5’, implying
that the conveyance is to be undertaken by aeroplane. The two elements that needs to be
present are ‘air and aircraft’. Deciphering this, the researcher adds that other actions close
flight is also included such as take-off period and whilst the aircraft is parked on the taxi-
way. This move broadens the meaning of ‘carriage by air’ over and above its literal meaning.
Should this be followed then Articles 18, 38 and 1 will not be consistent. Then Article 18(3)
and (4) Montreal Convention will not be useful in its application to the scope of application.

969 Article 38(1) Montreal Convention.
970 Clarke M, “Integrated Services in the Intermodal Chain (ISIC)”, Final Report Task B: Intermodal liability
and documentation, Rotterdam, (2005).
971 Even the ‘travaux préparatoires’ provide no indication of what the draughtsmen intended with these terms.
Nonetheless, it appears that at the time of the Warsaw Convention’s entry into effect and throughout the
subsequent decades, the term ‘combined carriage’ was primarily understood to refer to the combination of air
and rail transport; I. Koning, “Liability in air Transportation. Cargo Transport in Accordance with the Warsaw
and Montreal Conventions”, 33(4/5), Air and Space Law.
972 Article 38(1) Montreal Convention.
973 Nonetheless, these contracts, dubbed via transport contracts, are nonetheless entered into and recognised as
partially carriage, partially freight forwarding contracts.
974 Whalen, Thomas J. “The New Warsaw Convention: The Montreal Convention.” Air and space law 25.1
(2000).
975 De Leon P. M., & Eyskens W, “The Montreal Convention: Analysis of Some Aspects of the Attempted
Modernization and Consolidation of the Warsaw System”, J. Air L. & Com., 66 (2000): 1155.

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In actuality, the aircraft’s condition of performance is never interpreted in this precise
sense. One explanation for this is that the phrase “subject to Article 18 paragraph 4”, is
contained in Article 38, implying that this provision is intended to impact the extent of
applicability of Article 38.

3.4.3 Extending the Scope
Although loading, transportation, and transhipment are considered as incidental to air transport, the
researcher argues that they are deemed to be of lesser value and hence eliminated. However,
transhipment that occurs during the carrying of a maritime voyage where feeder services in ‘air
carriage’ are utilised does not appear to be of lesser significance. “Maritime” port reloading or
adjacent regions are frequently regarded discrete stages of a journey, which might result in
multimodal contracts involving sea carriage and transhipment.

It should be noted that if the preceding reasoning is used to road transport in order to
facilitate loading, delivery, and transhipment that is secondary to air transport, it may result in
multimodal air carriage. These road transports are considered true carriage, which might have
been contracted individually.

To summarise, the researcher argues that there is no need to treat ‘extra’ movements
such as loading, delivery, or transhipment differently based on whether the carriage is marine
or air. When air carriage is permitted to be substituted for other modes of transport, the
regulations of Articles 31 Warsaw Convention and 38 Montreal Convention establish that the
air transportation regimes are applicable exclusively to ‘air carriage’. However, if the contract
adopts a multimodal approach by substituting road transport for part of the carriage, the air
transport convention will apply only to the air leg.

3.5 The CMR (Convention relative au contrat de transport international de
marchandises par route)
Road transport plays a critical part in multimodal transport. Apart from train, it is the only
mode of transport for goods. However, the question has been raised regarding the application
of the CMR to the road carriage leg of a multimodal transport operation. This is because the
CMR makes only a passing reference to multimodal transport.976

It is worth noting that Article 2 applies to ‘roll-on-roll-off’ vehicles used in multimodal
transportation. This issue requires clarification due to the fact that divergent viewpoints are
being used within the CMR’s scope of application.977

CMR was declared inapplicable in a Rotterdam court case since the vehicle in that case
never crossed a border as required by the multimodal transport carriage,978 as it transported
products within the state’s borders. When commodities are transported in a vehicle for a
portion of the journey by sea, rail, or air979and are not taken from the vehicle, then the CMR
governs the entire carriage.

When parties fail to identify the modes of transport to be utilised, the CMR applies only
to the road leg if the contract permits transportation entirely or partially by road. Thus, this
view confines the application to the road portion and precludes any expansion. Apart from
circumstances falling within the scope of Article 2, the German Federal Court of Justice
stated in a decision that the CMR cannot be implemented unless the transport contract is for
carrying by motor vehicle. A contract with a multimodal component that includes a road leg

976 Article 2 CMR.
977 A. MESSENT and D.A. GLASS, Hill & Messent: CMR: Contracts for the International Carriage of Goods
by Road, (London: LLP, 2000), 39.
978 Rb. Rotterdam 3 May 2006, S&S 2007, 114; Rb. Rotterdam 5 June 1992, S&S 1993, 107 and Rb. Rotterdam
24 January 1992, S&S 1993, 89.
979 Except where the provisions of article 14 CMR apply.

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was insufficient.980These factors would have resulted in an exclusion of culpability in a well-
known case, Quantum. However, German law provides an exception, stating that the CMR
should be used in the absence of German legislation. The researcher argues that by providing
an alternative,981 the legislation becomes more flexible in its implementation, when it may be
completely inflexible.982

The CMR983regime has an advantage in that it does not determine the carrier’s liability
when the loss, destruction, or slowness in the transportation of the goods when another mode
of transportation was used to perform the contract of carriage984and the loss, destruction, or
slowness in delivery was not caused by the carrier’s conduct or omission on the road but
through the occurrence on the other mode of transport985 besides the road leg. In the absence
of agreement, the carrier by road’s liability shall be governed by CMR. Additionally, where
the road transporter (carrier) is also a transporter for the other modes of transportation, his
liability is governed by CMR Article 12(2). This implies that the carrier was two distinct
individuals; he was both the road carrier and the carrier through other modes of conveyance.
The researcher observes that this regime appears to be reasonable for acceptance, despite the
fact that it has generated some misunderstanding. The German court’s position supports the
researcher’s case.

3.6 The Convention on International Rail Carriage (COTIF-CIM)
COTIF986 is the earliest unified carriage law987 document. The COTIF's mission is to
promote, develop, and facilitate international rail988 transport. Its purpose is to provide a
uniform framework for international freight transportation. The standards governing rail
carriage contracts were incorporated into the ‘CIM Uniform Rules’989 for the transportation
of goods.990 The CIM and CMR are similar in that they both apply to ‘contracts for carrying
commodities in vehicles on the road for hire’.991 Only difference is, CIM applies to road992
transport while the CMR applies to rail transport. Thus, whether the CIM can be applied to
specific modes of multimodal transport will follow the same trajectory as the CMR
mentioned earlier in this chapter. The CMR is applicable to road carriage, a component for
multimodal transportation system where the road journey goes across different states.

This is not the case in Germany, where the legal and judicial systems believe that CMR
ought not to apply to whichever portion of a contract for multimodal transportation because it
is not a contract for road carriage.

980 I ZR 181/05, TranspR. 2008, 365. BGH 17 July 2008, I ZR 181/05, TranspR. 2008, 365.
981 S. Lamont-Black, “Claiming Damages in Multimodal Transport: A Need for Harmonization”, Tul. Mar. L.J.,
vol. 36, (2011-2012): 717-718.
982 For references to case law and more details, see I. Koller, Transportrecht: Kommentar zu Spedition,
Gütertransport und Lagergeschäft, Rechtsstand: voraussichtlich 15. November 2009, Germany, Beck C.H.,
2010, 997.
983 Article 2(1) CMR.
984 Carr I., & Stone P, International trade law, (London: Routledge, 2017).
985 Article 2(2) CMR.
986 See Article 6 to 12 CIM.
987 Article 17(1) CIM.
988 Article 17(2) CIM.
989 Uniform Rules for Contracts for the International Carriage of Goods by Rail (CIM) - Appendix B to the
Convention on International Carriage by Rail (COTIF) of 9 June 1999, www.cit-rail.org/en/rail-transport-
law/cotif/ (hereinafter referred to as the 'CIM').
990 I. CARR, International Trade Law (fourth edition), Oxon, Routledge-Cavendish, 2010, 361-362 and C-J.,
CHENG, Basic Documents on International Trade Law, (London: Martinus Nijhoff Publishers, 1990), 235-236.
991 Defossez D, “CMR: What If the Courts Got it Wrong?”, 75-100.
992 Verheyen W, “National judges as gatekeepers to the CMR Convention”, Uniform Law Review, 21(4) (2016):
441-456.

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Other countries, such as Germany, Italy, and a few Scandinavian states, appear to have
a more mixed attitude. At least in Germany, both the legal and judiciary communities agree
that CMR ought not apply to whichever portion of a contract for multimodal transportation,
because they do not fall under “a contract for road carriage.”993 According to CIM sections
1(3) and 1(4), the CIM applies to all multimodal transport contracts, with a particular
emphasis on rail carriage.

3.7 SMGS Convention
The researcher submits that the SMGS Convention is not suitable for multimodal framework.
In practice, such transportations are generally not conducted as through-transportation, but on
the basis of two contracts of carriage and are discontinued at the border of the area of
application of the respective convention. The researcher will not incorporate the SMGS in the
multimodal framework for Malaysia.

IV. ASEAN Framework Agreement on Multimodal Transport (AFAMT)
The ASEAN Economic Community (AEC) has been created to introduce the free flow of
goods, services, investment and skilled labour, and free flow of capital in the region. The
ASEAN AFAMT (2005) was set up for the realisation of these objectives.994

The objective of the AFAMT is to encourage international trade among ASEAN
countries and third-party countries using various means of transport either by air, sea, road,
rail, or internal waterways. AFAMT is a full multimodal framework unlike the other regimes
discussed earlier in this research. It is a regional multimodal regime compared to an
international regime. There are factors that need to be fulfilled before performing Multimodal
Transport Operation, discussed below.

4.1 Documents
When the goods are taken over by the operator of multimodal transport (MTO), the MTO
shall issue a document for multimodal transport which, at the consignor’s discretion, shall be
negotiable or non-negotiable in nature.995

The transport paperwork must be signed by the MTO or anyone authorised by him and
also in the form of electronic form consistent with regulation of the location of transit
document’s issuance. It is to be noted that transport documents than can be used for AFAMT
is varied and flexible in its usage thus making AFAMT a favourable regime to use.

4.2 Bill of Lading
Under the Multimodal Transport Operation, the consignor/consignee deals with one operator
only and undertakes one single transport document as well.996 It is to be noted that during the
actual operation, this is not the case.

A bill of lading, as defined by AFAMT, is a document issued by a shipping line or its
agent, or by a freight forwarder or operator of multimodal transport (MTO) acting as
principal or carrier,997and including information about a shipment of commodities.
Additionally, it is a document indicating the items are in the carrier’s control, as well as

993 Hoeks, Marian. “Multimodal transport law: the law applicable to the multimodal contract for the carriage of
goods”. (Kluwer Law International BV, 2010).
994 https://afamt.asean.org/afamt/, accessed on 20/1/2021.
995 Article 4 AFAMT.
996 FitzGerald G. F, “The Proposed Convention on International Multimodal Transport of Goods: A Progress
Report”, Canadian Yearbook of International Law/Annuaire Canadien De Droit International, 1"7 (1980): 247-
279.
997 Milo M. S, “The ASEAN Economic Community and the Philippines: Implementation, Outcomes, Impacts,
and Ways Forward”.

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confirmation that the goods998was delivered aboard a vessel. Also, it serves as a business
proof of compliance with an incoterms contract requirement. Unless a contrary indication,
such as “shipper's weight, load, and count”, “shipper-packed container”, or a similar term, the
multimodal transport document shall be prima facie proof of the multimodal transport
operator taking custody of the items stated in that document.999

Contrary evidence is inadmissible once the multimodal transport document or the
corresponding electronic data interchange message has been transferred to and acknowledged
by the consignee, who has relied on and acted on it in good faith. It is submitted that this
suggests that whenever the goods are packed by the shipper, the MTO has no choice but to
rely on the description provided by the shipper. If a MTO discovers the cargo is damaged,
then it should be sent back to the shipper for re-packing.

4.3 FIATA Bill of Lading for Multimodal Transport (FBL)
The freight forwarders for the multimodal transport operation use FIATA (International
Federation of Forwarding Agents Association) multimodal transport bill of lading as
transport document. It’s a “Negotiable FIATA Combined Transport Bill of Lading” which is
issued by freight forwarders acting as carriers and which is subject to the ICC Uniform Rules
for a Combined Transport Document.

It is submitted that the FIATA documents have a very good reputation and are
recognised as trustworthy documents with sustainable tradition. They contribute to
simplifying the international goods traffic and world trade.

4.4 Forwarder Cargo Receipt (FCR)
Also known as the forwarder’s certificate of receipt most people call it as forwarder’s cargo
receipt. It is proof to show that the cargoes have been received by the MTO. The FCR is not a
“negotiable” document.1000 Thus, it is not a title document, and it is merely evidence of what
was received by the forwarder, not who owns it.

It is submitted that since the FCR is not a negotiable title document, it is not legally
required to claim the cargo.1001 This has repeatedly led to legal claims upon carriers directly
and indirectly, and forwarders alleging improper release of cargo when it is released without
first obtaining the original FCR because the consignee obtained the cargo but did not pay its
bank.

4.5 Sea Waybill and Air Waybill
Unlike the bill of lading, both are non-negotiable document. Waybill is a contract for
transporting goods and receipt of goods, but not a document of title.

Some freight forwarders issue its own air waybill or bill of lading or sea waybill. This
acts as contracts of carriage between shipper and the forwarder who become principal or
carrier. The forwarder may enter a contract with one or more carriers using more than one
mode of transport. The waybill as a result, acts as a multimodal transport document.

4.6 Liability of MTO
The MTO shall maintain an insurance policy, membership in a protection and
indemnification club, or other financial protection to cover payment of responsibilities for

998 Mankabady S, “The Multimodal Transport of Goods Convention: A Challenge to Unimodal Transport
Conventions”, 120-140.
999 Article 6 AFAMT.
1000 Petkevičiūtė–Stručko M., & Yauhen I, “The Complexity Effect of Freight Forwarding Trade Instruments in
Project Logistics”, Intellectual Economics, 12(1) (2018): 47-58.
1001 Lamont-Black S, “Freight Forwarders’ House Bills of Lading-Myth, Facts and Hope”, (2019).

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loss, damage, or delay in delivery of goods under multimodal transport contracts, as well as a
contractual risk.1002 In article 14, the multimodal transport operator’s responsibility is limited
as follows: “Unless the nature and value of the goods have been declared by the consignor
before the goods have been taken in charge by the multimodal transport operator and inserted
in the multimodal transport document, the multimodal transport operator shall in no event be
or become liable for any loss and damage to the goods in an amount exceeding the equivalent
of 666.67 SDR per package or unit or 2.00 SDR per kilogram of gross weight of the goods
lost or damaged, whichever is the higher.”

V. THE MALAYSIAN LEGAL FRAMEWORK
The Carriage of Goods by Water Act 1950 regulates the carriage of goods by sea and applies
to all contracts of affreightment by sea in which a bill of lading is issued for the
transportation of goods from one port in Malaysia to another port in or outside Malaysia.1003
The Carriage of Goods by Sea Act 1950, which established the Hague Rules of 1924 for
Peninsular Malaysia, has been changed with effect from 15 July 2021 to adopt the Hague
Visby Convention of 1968 as modified by the 1979 SDR Protocol.1004 COGSA 1950 applies
the Hague Visby Convention to contract carriage. Carriage by Air Act 1974 applies the
Convention of Warsaw and its revisions (including Montreal Convention) to air carriage
transport.

The Commercial Vehicles Licensing Board Act 1987 (CVLA) through the Commercial
Vehicles Licensing Board (CVLB)1005 regulates the commercial road transport by laying
down conditions for issuing licenses. These conditions are for goods that could be carried,
documents to be filled, and regarding charges that could be levied. These rules are regulatory.
They do not govern the rights, obligations and liabilities of the parties to a contract but the
law of contract does. The parties will normally insert conditions to the terms of contract as it
is private law. To this, there is imposition of liability on common carriers by the legislations
and regimes in place. CMR is the international framework that the majority of countries have
embraced (Convention on the International Road Carriage of Goods).1006

Rail transport in Malaysia is governed by local legislation, Railways Act 1991,1007
which is regulatory in nature. The Malaysian rail transport is not governed by any
international regime. The liability of rail freight transport is under the purview of Keretapi
Tanah Melayu Berhad (KTMB)’s Standard Terms and Conditions (STC) as there is freedom
of contract between KTMB and the consignor/carrier. KTMB is not a common carrier. The
international regime for rail transportation of goods is COTIF-CIM (Convention Relating to
International Rail Carriage).

VI. CONCLUSION
With the introduction of China’s Belt and Road Initiative1008 and other commercial issues in
the trade business, having a good and powerful regime is necessary and advised for Malaysia.
Besides, the legal regimes of Malaysia as discussed above pre-dates back to as far as 1950s.

1002 Article 30(c) AFAMT.
1003 Kasi, Arun. Introduction and Legal Framework. The Law of Carriage of Goods by Sea. (Singapore:
Springer, 2021). 3-19.
1004 Teoh P, “Maritime Disputes Post 2020 and Lessons from Malaysian Courts”, Austl. & NZ Mar. LJ, 35
(2021): 59.
1005 https://www.mot.gov.my/en/land/acts-and-regulations/land-transportation, accessed on 22/2/2022.
1006 Legros C, “Relations between the Rotterdam Rules and the Convention on the Carriage of Goods by
Road”, Tul. Mar LJ, 36 (2011): 725.
1007 https://www.mot.gov.my/en/Documents/Act%20463%20-%20Railways%20Act%201991.pdf, accessed on
22/2/2022.
1008 https://www.cfr.org/backgrounder/chinas-massive-belt-and-road-initiative, accessed on 21/2/2022.

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Depending on the mode of transportation used, different liability regimes apply to
multimodal transportation activities. Regimes shift as borders are crossed. Affected parties
have complete control over the rules that govern their contractual agreements.

Some regimes, on the other hand, impose mandatory liability provisions on the carrier,
preventing them from picking and choosing. The contractual and legal connection between
the carrier and the shipper is jeopardised, especially when mandatory requirements clash,
causing ambiguity among all contracting parties.

The Hague/Hague Visby Rules complicate the practicality of multimodal
transportation. The Hague Visby Rules’ scope of application, which is tackle to tackle, will
cast doubt on the multimodal argument. It is only valid in this scenario for the duration of the
loading and unloading process. This is another another illustration of how difficult it is to
regulate a multimodal contract under a single international framework.

The bill of lading is another topic to consider. Other bill of lading written to order, as
well as those that designate a specific consignee, is considered a “bill of lading or any
equivalent document of title.” Because the issuer of this document takes responsibility for
delivering the goods to the party who presents the original document and requires the
exchange of the original for the merchandise, the bill and the products are transferable from
one party to another.

It is maintained that limiting the transferability of issued bills of lading to just marine
transport is unjustified. For transportation, a combined bill of lading should be utilised, which
is legally transferrable as long as the original document1009 is traded for commodities. The
Hague/Visby Rule can be used as a multimodal carriage of goods regime, but only for the sea
leg, according to the study. The maritime leg of the Hague/Visby Rules should be acceptable
for inclusion in Malaysia's multimodal model.

The term ‘delivery’ in this regime refers to ‘the delivery of the goods to the consignee’
under the Hague/Visby Convention (final destination). The consignee shall notify the carrier
of any loss or destruction, stating the nature of the loss or harm in general, no later than the
next business day after the goods were delivered to the consignee, according to the Hamburg
Rules1010. It is claimed that when used to multimodal transportation, schedule constraints will
not cause problems, regardless of whether the transit leg is the sea leg. As a result, the
researcher contends that the Hamburg Rules are also an excellent fit for Malaysia’s
multimodal transportation.

The Rotterdam Rules are equivalent to the Montreal Convention on Air Transport in
terms of geographical scope of application. The Rotterdam Rules, in compared to previous
regimes, have a broad geographical scope. The contract of carriage must stipulate that the
point of receipt, the loading port, the delivery site, and the discharge port are all located
inside a contractual state to be qualified for this regime.

The Rotterdam Convention applies when a loss or destruction cannot be contained. It’s
a void that hasn’t been filled in previous regimes and that the new one will, particularly in
terms of liability restrictions. In many cases, national laws or even contractual commitments
must be followed. Only the Netherlands and Germany currently have national legal systems
that are specifically tailored to unlocalised loss1011.

To summarise The Warsaw and Montreal Conventions, the researcher believes that
‘additional’ movements such as loading, delivery, and transhipment should not be treated
differently depending on whether the conveyance is by sea or by air. When other forms of

1009 Schmitz, Torsten. “The bill of lading as a document of title.” Journal of International Trade Law and
Policy (2011).
1010 Article 19 Hamburg Rules.
1011 In the Netherlands, see 8:42–43 BW; in Germany, see 452 HGB. For additional information on the
multimodal transport legislation in the Netherlands and Germany, read Ch. 10, sections 10.4.1 and 10.4.2.

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transportation are permitted to be substituted for air carriage, the requirements of Articles 31
and 38 of the Warsaw Convention and the Montreal Convention stipulate that the air
transportation regimes apply exclusively to “air carriage.” The air transport convention, on
the other hand, will only apply to the air leg if the contract takes a multimodal approach and
substitutes road transport for part of the carriage.

The CMR1012 regime has the advantage of not determining the carrier’s liability when
another mode of transportation was used to perform the contract of carriage1013 and the loss,
destruction, or delay in delivery was not caused by the carrier’s conduct or omission on the
road but by an occurrence on the other mode of transportation1014 besides the road leg. In the
absence of an agreement, CMR governs the liability of the carrier by road. Furthermore,
where a road transporter (carrier) is also a transporter for other forms of transportation, CMR
Article 12 governs his liability (2). This implies that the carrier was two people: he was a
road carrier as well as a carrier for other forms of transportation. Despite the fact that it has
caused some confusion, the researcher believes that this regime is reasonable for acceptance.
The researcher’s case is supported by the German court’s decision.

The ASEAN Multimodal Transport Framework Agreement (AFAMT): According to
the researcher, this is an excellent example for Malaysia’s multimodal transportation system.
The MTO or someone authorised by him must sign the transportation papers, which must
also be in electronic form in accordance with the regulations governing the issuing of transit
documents. It should be emphasised that the transport documents that can be utilised for
AFAMT are diverse and versatile in their use, making AFAMT a user-friendly regime. A bill
of lading, as defined by AFAMT, is a document containing information about a shipment of
commodities and issued by a shipping line or its agent, or by a freight forwarder or
multimodal transport operator (MTO) acting as principal or carrier1015. It's also a document
stating that the products are within the carrier’s control1016 and that the commodities were
delivered aboard a vessel. It also acts as proof of compliance with an incoterms contract
requirement for the business. The multimodal transport document shall be prima facie proof
of the multimodal transport operator taking custody of the objects listed in that document
unless there is a contrary indication, such as “shipper’s weight, load, and count,” “shipper-
packed container,” or a similar expression1017.

For the International Rail Carriage Convention (COTIF-CIM), The 'CIM Uniform
Rules'1018 for the transportation of goods1019 included the criteria governing rail carriage
contracts. Both the CIM and the CMR apply to “contracts for the carriage of commodities in
vehicles on the road for rent1020.” The only distinction is that the CIM is for road travel and
the CMR is for rail transit. As a result, the CIM’s applicability to specific modes of
multimodal transportation will follow the same path as the CMR discussed previously in this

1012 Article 2(1) CMR.
1013 Carr, Indira, and Peter Stone. International trade law. Routledge, 2017.
1014 Article 2(2) CMR.
1015 Milo M. S, “The ASEAN Economic Community and the Philippines: Implementation, Outcomes, Impacts,
and Ways Forward”, I.
1016 Mankabady S, “The Multimodal Transport of Goods Convention: A Challenge to Unimodal Transport
Conventions”, 120-140.
1017 Article 6 AFAMT.
1018 Uniform Rules for Contracts for the International Carriage of Goods by Rail (CIM) - Appendix B to the
Convention on International Carriage by Rail (COTIF) of 9 June 1999, www.cit-rail.org/en/rail-transport-
law/cotif/ (hereinafter referred to as the ‘CIM’).
1019 I., CARR, International Trade Law (fourth edition), 361-362; C-J., CHENG, Basic Documents on
International Trade Law, 235-236.
1020 Defossez, Delphine. “CMR: what if the courts got it wrong?” Uniform Law Review 21.1 (2016): 75-100.

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chapter. The CMR applies to road1021 carriage, which is a component of a multimodal
transportation system in which the road journey crosses multiple states.

Recommendations from all the regimes discussed in this paper can be positively
utilised for the formulation of a multimodal legal framework for Malaysia. Even though the
regimes need to be tweaked and built upon, it should be tweaked to suit the Malaysian and
ASEAN climate not forgetting to continue to keep it as an international model.

1021 Verheyen, Wouter. “National judges as gatekeepers to the CMR Convention.” Uniform Law Review 21.4
(2016): 441-456.

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22 October 2022
E-ISBN 978-967-491-267-3

p. 263-274

21. IUU FISHING AS A NATIONAL SECURITY
THREAT: A COMPARATIVE STUDY OF THE
MALAYSIAN AND THE PHILIPPINES LEGAL
FRAMEWORKS

Farahdilah Ghazali
Faculty of Fisheries and Food Science, Universiti Malaysia Terengganu, Malaysia

Email: [email protected]

Nur Aizat Ashari
Criminal Investigation Department, Terengganu Police Headquarters, Malaysia

Email: [email protected]

ABSTRACT
Fish is the main source of protein for many coastal states, especially in Asia.
However, many countries have been facing issues with the depletion of fish
stocks due to the unfolding tragedy in the oceans which is triggered by
unsustainable practices including Illegal, Unreported and Unregulated (IUU)
fishing. IUU fishing is not only seen as a food security threat but also a national
security threat that adversely affects maritime security and governance structures.
This article focuses on Malaysian and the Philippines’ approaches to combat IUU
fishing in their Exclusive Economic Zones and in the adjacent areas of the high
seas. This comparative study adopts a doctrinal approach that involves analysis of
legal provisions including international conventions, agreements, national
legislation, and other regulations, along with other secondary materials from
scientific books, journal articles, conference papers and reports. The discussion
of the paper is focused on the law and its implementation to address the problem
of IUU fishing especially related to transorganised crimes in Malaysia and the
Philippines, which undermine national security in both jurisdictions. Both
countries have taken several measures in line with the international framework
that addresses fisheries management including the 1995 FAO Code of Conduct
for Responsible Fisheries, the Agreement on Port State Measures (PSMA) and the
International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported
and Unregulated Fishing (IPOA-IUU). However, without an effective national
framework and enforcement, as well as governments’ commitment and regional
cooperation, IUU fishing will remain a threat to national security.

Keywords: Ocean governance, Law of the Sea, National security, Transorganised
crimes, Exclusive Economic Zone.

Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
International Peace and Security: The Achievement of the United Nations and the Way Forward

I. INTRODUCTION
Fisheries sector plays an important role for people in Southeast Asia as for sources of protein
as well for their livelihood especially in the coastal areas1022. Apart from that this region has
been significant contribute to the world’s total fisheries production, and the products are
world widely traded.1023 However, the fishing sector is increasingly affected due to the
dwindling fish stocks in which significantly lead to increased costs and reduced catches and
eventually lead to unemployment.1024 Excess capacity allows for more fish and causes
overfishing and opens many opportunities for illegal, unreported and unregulated (IUU)
fishing to occur.1025 Among the factors that encourage IUU fishing is the increase in
population and high demand for protein sources.1026

Despite many actions have been taken at both regional and international levels,
overfishing and IUU fishing still rampantly occur. IUU fishing is usually carried out by
flagged vessels and it occurs in their own and neighboring countries' waters.1027 This problem
was supported with advanced technology and extensive networks. Furthermore, with weak
enforcement and the involvement of corrupt law enforcement officials trigger for more
opportunities to run their illegal operations.1028 The use of advanced technology on IUU
vessels also causes by-catch not limited to commonly fished species or size, but involving
catches such as whales, dolphins, turtles, sharks, rays and other endangered marine
species.1029 Fishing stocks will be depleted and many species will become extinct if no
effective measures implemented. Various methods were used by IUU vessels and fishermen
to escape from the legal enforcement including by falsifying documents including fishing
licenses and catch records, falsifying the name of the vessel and flag as well as the identity of
the crew.1030

Both Malaysia and the Philippines have lost billions annual due to IUU fishing. IUU
fishing also causes severe economic loss to coastal communities and small-scale
fisheries.1031As an archipelagic country, the Philippines has great interests in safeguarding its
territorial sovereignty including against fishing crimes. As the fifth-largest island country in
the world with more than 7000 islands, IUU fishing has become a threat to the national
security as it supports nonstate actors engaged in organised crime, piracy, and armed
insurgency and terrorism. On the other hand, Malaysia economy also relied from the sea
which has a great potential in the present or in the future, especially in the marine and
maritime industry sectors and fisheries. Geopolitically Malaysia is among dynamic country in
the region from the economic and political aspects. This potential has influenced Malaysia to
seek for regional cooperation in combating fishing crime which will directly supporting the

1022 Johns, Murray. "Enhancing responsible fishing practices in South East Asia to combat Illegal, Unreported
and Unregulated (IUU) fishing." Australian Journal of Maritime & Ocean Affairs 5, no. 3 (2013): 112-119.
1023 Kaewnuratchadasorn, Pattaratjit, Malinee Smithrithee, Akito Sato, Worawit Wanchana, Nualanong
Tongdee, and Virgilia T. Sulit. "Capturing the impacts of COVID-19 on the fisheries value chain of Southeast
Asia." Fish for the People 18, no. 2 (2020): 2-8.
1024 Stefanus, Andrea A., and John AE Vervaele. "Fishy business: regulatory and enforcement challenges of
transnational organised IUU fishing crimes." Trends in Organized Crime (2021): 1-24.
1025 Martini, Roger, and James Innes. "Relative effects of fisheries support policies." OECD Food, Agriculture
and Fisheries Working Papers 115 (2018).
1026 Johns, Murray.
1027 Ibid.
1028 Stefanus, Andrea A., and John AE Vervaele.
1029 Hall, Martin, Eric Gilman, Hiroshi Minami, Takahisa Mituhasi, and Erin Carruthers. "Mitigating bycatch in
tuna fisheries." Reviews in Fish Biology and Fisheries 27, no. 4 (2017): 881-908.
1030 Johns, Murray.
1031 Pedrason, Rodon, Yandry Kurniawan, and Purwasandi Purwasandi. "Handling of Illegal, Unreported and
Unregulated (IUU) Fishing." Jurnal Pertahanan: Media Informasi ttg Kajian & Strategi Pertahanan yang
Mengedepankan Identity, Nasionalism & Integrity 2, no. 1 (2016): 71-90.

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IUU Fishing as a National Security Threat: A Comparative Study of the Malaysian and the Philippines Legal Frameworks

country to strengthen its identity as a maritime country, therefore, it is critical to intensify law
enforcement and crime control fishing.

IUU fishing have detrimental effects to marine ecosystem and habitats such as coral
reef1032. Destruction marine habitat as well as destruction fishing gears and practices has
significantly contribute to the depletion of fish stocks. The depletion of fish stocks and other
marine life can influence the marine biodiversity as well as impair the ecosystem’s health and
function.1033Furthermore, evidently Organised Criminal Groups also involve in IUU
fishing.1034 IUU fishing is not only a crime against the fish but it comprises of elements of
transnational organised crime. 1035 These activities disregard and violate maritime and
fisheries laws and directly become a maritime security threat and create political tension
among fishing nations especially within the region. As these activities operated in a manner
ultra vires with conservation measures under international law, they pose greater risks from
multiple perspectives. This paper discusses on the law and its implementation to address
issues on IUU fishing especially related to transorganised crimes in Malaysia and the
Philippines.

II. IUU FISHING AS A NATIONAL SECURITY THREAT

2.1 The Concept of Transorganised Crime
Transnational crime is a form of crime that is a threat to the global peace and prosperity as it
does not respect countries borders and sovereignty. The United Nations Convention against
Transnational Organised Crime (UNTOC)1036 were promulgated in 2000 to guide for
countries in efforts to combat transnational crime. Fisheries crime is one of the transnational
crimes when done intentionally by certain parties from other countries, and these crimes are
organised in nature and commonly associated with illegal fishing, document fraud, illicit
goods trafficking, corruptions1037 and money laundering. Paragraph 2 of Article 3 of the
UNTOC includes some elements that can be the reference to categorise a crime can be said to
be international organised crime.1038 UNTOC also ensures the States Parties to carry out their
obligations in line with the principles of sovereign equality and territorial integrity of States
and without intervening in the domestic affairs of other States.1039 This multilateral treaty
against transnational organised crime also provides for the states’ duties in overcoming
transnational organised crime, including to adopt such legislative and other measures as may
be necessary to establish as criminal offences1040, to take measures to ensure effective action
to prevent and punish of the corruption of public officials,1041 and increasing cooperation

1032 Agnew, David J., John Pearce, Ganapathiraju Pramod, Tom Peatman, Reg Watson, John R. Beddington, and
Tony J. Pitcher. "Estimating the worldwide extent of illegal fishing." PloS one 4, no. 2 (2009): e4570.
1033 Stefanus, Andrea A., and John AE Vervaele.
1034 Ibid.
1035 Hendharto, Ardi. "Understanding IUU Fishing as Transnational Organized Crime With Special Example Of
Benjina Case." Kajian 23, no. 2 (2020): 95-110.
1036 All the ASEAN Member States (AMS) are parties of the UNTOC. Malaysia has signed UNTOC on 26
September 2002 and ascended the treaty on 24 September 2004. While the Philippines has signed on 14
December 2000 and ratified the treaty on 28 May 2002.
1037 IUU Fishing also relates to the United Nations Convention Against Corruption.
1038 Article 3 (2) states “An offence is transnational in nature if (a) It is committed in more than one State; (b) It
is committed in one State but a substantial part of its preparation, planning, direction or control takes place in
another State; (c) It is committed in one State but involves an organized criminal group that engages in criminal
activities in more than one State; or (d) It is committed in one State but has substantial effects in another State.
1039 Article 4 (1) of UNTOC.
1040 Article 5 (1) and Article 6 (1) of UNTOC.
1041 Article 9 of UNTOC.

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among member states of the convention in the framework of implementing this
convention.1042

This convention is considered effective to overcome organised transnational crimes,
especially in relation with IUU fishing activities as it involves two or more countries. Article
19 of UNTOC further proposes the joint investigations among States Parties through bilateral
or multilateral agreements without jeoperdising the sovereignty of the State Party.
Furthermore, special investigative techniques through electronic or other forms of
surveillance and undercover operations, can be adopted by competent authorities to
effectively combating organised crime.1043 UNTOC also promotes States Parties to develop
and evaluate national projects and to establish and promote best practices and policies to
prevent transnational organised crime including strengthening of cooperation between law
enforcement agencies.1044 Nevertheless it was argued that although IUU fishing is commonly
linked with transorganised crimes, the pillars for the development of UNCTOC mainly focus
on human trafficking and firearms trafficking.1045

2.2 IUU Fishing and Transorganised Crime
Fisheries crime is a multifaceted problem that entangled with various crimes. IUU fishing is a
problem beyond stealing fish and other marine resources, but also constitutes other elements
of crimes including document forgery, human trafficking, smuggling, money laundering, and
drugs trafficking.1046 Moreover, IUU fishing often associated with human rights abuses
especially for those working (force labour) in the fishing vessels. Therefore, protecting these
people has become more complex and challenging especially in identifying, enforcing and
prosecuting illegal activities on the high seas.1047 In contrast, the UNODC report on
transnational crime in Southeast Asia disclosures the link of human trafficking, forced labor
and sexual exploitation in the fishing industry.1048 The traffickers exploited corrupt officials
and governance structures as well the poverty and low education to deceive victims and
trafficked them on board. Most of the victims are indebted and forced to work in the fishing
vessels1049 in which these vessels fail to comply the International Labour Organisation (ILO)
Work in Fishing Convention and the International Maritime Organisation (IMO) Cape Town
Agreement. These two conventions ensure transparency of fishing and crew activities
whereby enforcing labour standards and assisting in combatting IUU fishing.1050

Nevertheless, there are limited evidence that link drug and weapon smuggling to IUU
fishing.1051 On the other hand, the UNODC has conveyed the link between IUU fishing with
smuggle drug, terrorist activity and other organised crimes. In the absence of any other forms
of organised crimes, IUU fishing is still a threat to the states’ sovereignty as it is a
transnational crime since the operation may crosses the jurisdiction of another state and
carried out by groups or companies.1052

1042 Article 13, Article 26 and Article 27 of UNTOC.
1043 Article 20 of UNTOC.
1044 Article 31 of UNTOC.
1045 Chapsos, Ioannis, and Steve Hamilton. "Illegal fishing and fisheries crime as a transnational organized crime
in Indonesia." Trends in Organized Crime 22, no. 3 (2019): 255-273.
1046Noonan, Mike, and Elizabeth Williams. "Combating maritime transnational crime: an Australian
perspective." Journal of the Indian Ocean Region 12, no. 1 (2016): 46-51.
1047 Mackay, Mary, Britta Denise Hardesty, and Chris Wilcox. "The intersection between illegal fishing, crimes
at sea, and social well-being." Frontiers in Marine Science 7 (2020): 589000.
1048 Chapsos, Ioannis, and Steve Hamilton."
1049 Ibid.
1050 Long, Tony, Sjarief Widjaja, Hassan Wirajuda, and Stephanie Juwana. "Approaches to combatting illegal,
unreported and unregulated fishing." Nature Food 1, no. 7 (2020): 389-391.
1051 Mackay, Mary, Britta Denise Hardesty, and Chris Wilcox.
1052 Hendharto, Ardi.

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IUU fishing should be criminalised as it instigates immense global problems. By
acknowledging IUU fishing as transnational organised crime, the global community will have
to initiate necessary approach to alleviate the issues. Comprehensive and effective legal
framework and enforcement accompanied with severe sanctions and international and
regional cooperation are vital to eradicate this problem.1053 This is because it is difficult to
monitor and catch illegal activities in the sea. Lack of enforcement permit IUU fishing
vessels to transfer their illegal catch to different vessel in the sea, while they can continue
fishing.1054 Besides, a vessel flying a ‘flag of convenience’1055 has worsen the problem as
they can easily avoid proper inspection and subsequently permit the illegal fishing industry to
access the marketplace and logistical support for their vessels.1056 Thus, this scenario will
allow the rampant of transorganised crimes that linked to IUU fishing industry as it will be
difficult to notice their hidden operations and apprehend the perpetrators.

III. IUU FISHING FROM THE PERSPECTIVES OF INTERNATIONAL AND
REGIONAL LAW
The United Nations Convention on the Law of the Sea (UNCLOS) does not specify any
measures related to IUU fishing. However, there are several provisions in it that emphasise
the conservation of fisheries stocks as well as the cooperation of countries and regional
organisations. Article 63 deals with cooperation in the conservation and development of the
same species in the exclusive economic zone (EEZ) of two or more coastal countries.
Moreover, Article 64 stipulates on the matters pertaining with cooperation directly or through
international organisations to ensure the conservation and promote the objective of optimal
use of long-distance migratory species. In addition to the management of fisheries in the
EEZ, this Convention also obliges to carry out its obligations when fishing in the high seas,
as in Article 116, whereby no country can declare sovereignty or priority rights to carry out
fishing activities in the high seas.

Several international agreements and conventions have explicitly touched on IUU
fishing and provided measures to deal with IUU at the national or regional level. Among the
most relevant instruments are the FAO International Plan of Action to Prevent, Suppress and
Eliminate IUU Fishing 2001 (IPOA-IUU) and the FAO Agreement on Port State Measures to
Prevent, Suppress and Eliminate IUU Fishing (PSMA). IPOA-IUU is the first effort at the
global level that clearly emphasises the priority of combating this problem. Although in
principle the IPOA-IUU does not bind any country or organisation, this action plan indeed
paves the way for many countries because it is a basic guide for each country and
international organisation to implement certain methods to deal with this problem.1057 It is
suggested that the IPOA should be implemented by all States either directly, in cooperation
with other States, or RFMO or FAO and other appropriate international organisations.
Effective coordination and consultation and information exchange are essential to ensure its
success along with full participation of stakeholders including industry, fishing communities,
and NGOs.

In addition, the FAO Agreement on Port State Measures to Prevent, Suppress and
Eliminate IUU Fishing 2009 (PSMA) also helps in efforts to restrain vessels involved in IUU

1053 Ibid.
1054 Long, Tony, Sjarief Widjaja, Hassan Wirajuda, and Stephanie Juwana..
1055 The registration of the flag has no link with the origin of the vessels’ operators. The vessels may be
registered in different state because the state has limited regulation, easy registration procedures as well as to
reduce taxation.
1056 Long, Tony, Sjarief Widjaja, Hassan Wirajuda, and Stephanie Juwana.
1057 Tai, Tsung-Han, Shih-Ming Kao, and Wan-Chun Ho. "International soft laws against IUU fishing for
sustainable marine resources: adoption of the voluntary guidelines for flag state performance and challenges for
Taiwan." Sustainability 12, no. 15 (2020): 6013.

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fishing from using ports and landing their catch. This agreement aims to reduce the incentive

for such vessels to continue operating and restrict IUU fishing products from entering

national and international markets. Despite all these international and regional measures,

cooperation across governments, society, and industry is required. The effective of roles

regional fisheries management organisations (RFMOs) can bring forward regional
cooperation across regions. RFMOs’ critical function to improve coordination and to provide

for data transparency will encourage global exchange of information particularly on vessel

registration, licences, crew documentation, catch and loading information, which paramount
important to eradicate IUU fishing.1058

IV. IUU FISHING IN SOUTHEAST ASIA

IUU fishing undermines the national security by violating fisheries laws and regulations by
exploiting the loopholes in the enforcement and exploited corrupted enforcement officials.1059

As IUU fishing is not punishable by maximum imprisonment, it continues to appear as an
economic loss since this illegal fishing operation deprives the funds of the state.1060 In

addition, this issue also harms the livelihood of artisanal fishing communities due to the food
insecurities.1061 Apart from that, IUU fishing also relatable to a syndicate of stealing high-

value artifacts from ships sank. This incident has caused the country to lose millions of
ringgit and this syndicate commonly assisted by the local diver.1062

Asian region has recorded the highest IUU score with an index value of 2.51 in 2021,

where China leads other countries with the highest IUU score of 3.68. Table 1 shows the list

of countries in Southeast Asia with the ranking of the IUU index at the level of Asia and

Southeast Asia in 2021. Indonesia and the Philippines share the first place, followed by

Cambodia and Singapore. While Vietnam and Timor Leste are ranked ninth and tenth

respectively in the Southeast Asia region.

Table 1: The ranking of countries in Southeast Asia with the ranking of the IUU index
at the level of Asia in 2021

(Source adapted from https://www.iuufishingindex.net)

Countries Asian Ranking
(20 countries)
Brunei
Cambodia 11
Indonesia 8
Malaysia 6
Myanmar 12
Philippines 10
Singapura 6
Thailand 9
Timor Leste 13
Vietnam 16
15

1058 Long, Tony, Sjarief Widjaja, Hassan Wirajuda, and Stephanie Juwana.
1059 Stefanus, Andrea A., and John AE Vervaele.
1060 Hendharto, Ardi.
1061 Ibid.
1062 Manaf, Azima, Suhana Saad, and Mohd Yusof Hussain. "Isu keterancaman keselamatan perairan Mersing
dan pulau-pulau di sekitarnya (Security threat issues in Mersing waters and the surrounding islands)." Geografia
8, no. 6 (2012).

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IUU Fishing as a National Security Threat: A Comparative Study of the Malaysian and the Philippines Legal Frameworks

Table 2 below shows the performance of the IUU index in 2021 for Malaysia and the
Philippines. In general, Malaysia showed a decrease in IUU score in 2021 compared to 2019
with a score value from 2.52 to 2.39. Malaysia ranked no 12 of 20 countries in the Asian
ranking, no 13 of 29 countries in the Western Pacific Ranking and no 3 of 9 countries in the
East Indian Ocean ranking. the Philippines also recorded a decrease in score in 2021 with an
IUU score from 2.71 in 2019 to 2.55 in 2021. the Philippines ranked no 6 of 20 countries in
the Asian ranking, and no 6 of 29 countries in the Western Pacific Ranking.

Table 2: IUU index performance for Malaysia and the Philippines in 2021
(Source adapted from https://www.iuufishingindex.net)

Country IUU World Ranking Asia Ranking Western Pacific
The Philippines Score 20 of 152 countries 6 of 20 countries Ranking
2.55
6 of 29 countries

Malaysia 2.39 47 of 152 countries 12 of 20 countries 13 of 29 countries

In the Southeast Asia, weak enforcement of laws, disproportionate penalties and
punishments and gaps in existing agreements and legal frameworks contribute to IUU
fishing. ASEAN countries also have weak vessel licensing systems and catch and effort data
systems as well as monitoring, control and supervision (MCS).1063 In addition, issues related
to ineffective vessel licensing and registration systems, destructive fishing methods and
awareness of IUU fishing continue to hamper efforts to conserve fishery resources.1064 The
Southeast Asian Fisheries Development Center (SEAFDEC) has introduced the Regional
Fishing Vessel Record (RFVR) which aims to develop a regional record of fishing vessels
and the RFVR system can be used effectively as a fisheries management mechanism to
combat IUU fishing in Southeast Asia. In addition, the ASEAN Guidelines for Preventing the
Entry of Fish and Fishery Products from IUU Fishing Activities into the Supply Chain also
help in ensuring that fish and fishery products from the region entering the global market
supply chain do not originate from IUU fishing. A similar system was also developed as the
ASEAN Catch Documentation Scheme (ACDS) which increases the credibility of fish and
fishery products for intra-regional and International Trade.1065

To support for global efforts, the Regional Plan of Action to Prevent, Deter and
Eliminate IUU Fishing (RPOA-IUU) was introduced to address issues related to overfishing
and serious illegal fishing. Through this plan, members are expected to implement
responsible fishing practices and combat IUU fishing in accordance with the provisions of
UNCLOS, particularly those requiring countries to cooperate in the conservation and
management of shared stocks and highly migratory species. In addition to the guidelines
mentioned above, there are other comprehensive management instruments that have been
used to manage fisheries, such as the ecosystem approach to fisheries management
(EAFM).1066

1063 Lee, Wen Chiat, and K. Kuperan Viswanathan. "Framework for managing illegal, unreported and
unregulated fishing in ASEAN." World 10000 (2020): 23500.
1064 Ibid.
1065 Ghazali, Farahdilah, Wan Izatul Talaat, Ashraf Rahman, and Hazmi Rusli. "Malaysian Efforts in Combating
IUU Fishing: A Legal and Policy Review." Journal of East Asia and International Law 12, no. 2 (2019): 387-
400.
1066 Pomeroy, Robert, John Parks, Kitty Courtney, and Nives Mattich. "Improving marine fisheries management
in Southeast Asia: Results of a regional fisheries stakeholder analysis." Marine Policy 65 (2016): 20-29.

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V. IUU FISHING: A MALAYSIAN APPROACH
Malaysian fishing waters especially in the Exclusive Economic Zone (EEZ) are always
encroached by foreign fishing vessels, which caught fish without permit. issued by the
Director General of Fisheries. These vessels predominantly from Indonesian fishermen,
Thailand and Vietnam. The presence of sophisticated foreign vessels in the EEZ threatens
local artisanal fishers1067. Table 3 shows total of seized foreign fishing boats by country from
2014 to July 2020. The foreign fishers were charged under the Fisheries Act 1985 for
trespassing and catching fish in Malaysian waters without the permission of the Director of
Fisheries and the Immigration Act for failing to present valid identification documents. While
Table 4 shows sea robbery reported by the Malaysian Maritime Enforcement Agency
(MMEA) according to Malaysian waters from 2014 to 2019.

Table 3: Total of Seized Foreign Fishing Boats by Country From 2014 to July 2020
Source: (https://www.data.gov.my)

Year Vietna Indonesi Thailan Philippine Chin Singapor Taiwa Brune
2014 m a d s a e n i
2015
2016 46 19 8 1 0 0 0 0
2017 63 36 7 1 0 0 0 0
2018 64 39 1 3 0 0 1 0
2019 121 26 0 0 1 0 0 0
2020 94 9 0 0 5 0 2 0
91 4 9 0 0 0 0 0
54 6 3 0 1 0 0 0

Table 4: Sea Robbery According to Malaysian Waters from 2014 to 2019

Year Strait of Johor East Coast (South Sabah Sarawak
2014 Malacca Waters China Sea) Waters Waters
2015 1
2016 2 10 4 0 1
2017 1 2 0 0 1
2018 0 0 3 0 2
2019 0 0 1 0 0
1 0 0 1 1
0 0 0 0

To regulate fisheries sector effectively that includes the conservation, management and
development of maritime and estuarine fishing and fisheries, the Fisheries Act 1985 (Act
317) was enacted and subsequently repeals the Fisheries Act 1963. This Act is divided into
11 Parts: Preliminary (I); Administration (II); Fisheries Plans (III); General Licensing
Provisions (IV); Foreign Fishing Vessels (V); Offences (VI); Turtles and Inland Fisheries
(VII); Aquaculture (VIII); Marine Parks and Marine Reserves (IX); Enforcement (X); and
General Provisions (XI). This piece of legislation stipulates several critical provisions that
address IUU fishing. Section 8 of the Act requires licence for fishing activities to be carried
out and local fishing vessels to be operated in Malaysian fisheries waters. While Section 15
of the Act prohibits any foreign fishing vessel to fish or attempt to fish in Malaysian fisheries
waters and conduct any techno-economic research or survey of any fishery, unless authorised

1067 Manaf, Azima, Suhana Saad, and Mohd Yusof Hussain.

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under an international fishery agreement in force between the Government of Malaysia and
the government of the country, or between the Government of Malaysia and the international
organisation. The provision further forbids any foreign fishing vessel to load or unload any
fish, fuel or supplies or tranship any fish in Malaysian fisheries waters without the written
approval.

As IUU fishing commonly associated to destructive fishing practice, Section 26 of the
Fisheries Act proscribes fishing activities with explosives, pollutant or any apparatus utilising
an electric current. Moreover, no person is allowed to disturb or catch any aquatic mammal or
turtle while fishing. In the case whereby any aquatic mammal or turtle is caught or taken
unavoidably during fishing, they must be released immediately or if dead, they shall be
reported to a fisheries officer.1068 Furthermore,the Fisheries Act 1985 also allows authorised
officer to entry, seizure and arrest without a warrant when he has reason to believe that an
offence has been committed under the Fisheries Act 1985.1069The Act authorises any fisheries
officer to investigate, to require attendance of witnesses and to examine witnesses.1070 The
Department of Fisheries Malaysia (Jabatan Perikanan Malaysia) is responsible for
collecting, compiling and disseminating fisheries statistical data, issuing licences (gear and
vessels), supervising and controlling fishing capacity as well as drafting and enforcing
fisheries laws and regulations. Apart from the mother Act, there are several regulations which
address several important aspects of IUU fishing and promote conservation of fisheries
resources, including:

(1). Fisheries (Appointment of Authorised Officer) Order 2011
(2). Fisheries (Quality Control of Fish for Export to the European Union)

Regulations, 2009 Fisheries (Prohibited Areas) (Amendment) Regulations 2002
(3). Fisheries (Control of Endangered Species of Fish) Regulations 1999
(4). Fisheries (Prohibited Areas) (Amendment) Regulations 1998
(5). Establishment of Marine Parks Malaysia Order 1994
(6). Fisheries (Prohibited Areas) Regulations, 1994
(7). Fisheries (Maritime) (Licensing of Local Fishing Vessel) Regulations 1985
Apart the Fisheries Act 1985, the Exclusive Economic Zone Act 1984 (Act 311)
provides sovereign rights to explore and exploit, conserve and manage the natural resources,
including fisheries in the Malaysian EEZ.1071 Section 5 prohibits any activities conducted
including fishing in the EEZ or on the continental shelf except where authorised. Section 13
elaborates the power of the Government to specify measures which are necessary to protect
Malaysia's coastline or environment or related interests, including fishing upon a maritime
casualty or acts that expected to cause major harmful impacts. In addition, the law empower
authorised officers to stop, board and search any vessel within the EEZ as well to exclusive
economic zone and inspect any licence, permit, record, certificate or any other conduct
physical inspection of the vessel and its crew, if he has reason to believe that an offence has
been committed under this Act.1072 The doctrine of hot pursuit applicable under the Act
whereby it recognises the right of a coastal state to pursue onto the high seas a foreign vessel
that violated its laws while within its waters.1073
Additionally, the Continental Zone Act 1966, the Territorial Sea Act 2012, and the
Maritime Enforcement Agency Act 2004 are also indispensable in governing maritime-
related activities and resources in Malaysia’s EEZ. The Maritime Enforcement Agency Act

1068 Section 27 of the Fisheries Act 1985.
1069 Section 47 of the Fisheries Act 1985.
1070 Section 47A, Section 47B and Section 47C of the Fisheries Act 1985.
1071 Section 4 of the Exclusive Economic Zone Act 1984.
1072 Section 24 of the Exclusive Economic Zone Act 1984.
1073 Section 25 of the Exclusive Economic Zone Act 1984.

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2004 gives mandates for the establishment of the Malaysian Maritime Enforcement Agency
(MMEA) or known as Malaysia Coast Guard (Agensi Penguatkuasaan Maritim Malaysia) to
safeguard within maritime jurisdictional zones of the country which involves search and
rescue operations, the prevention and suppression of criminal activities, to aerial and coastal
surveillance. The MMEA Act empowers the agency to boarding and inspecting vessels,
detaining persons suspected of violating fisheries laws, collecting intelligence information
and investigating any offence, prosecuting alleged offenders, as well as conducting hot
pursuit. Hence, the MMEA plays a critical role in assisting to combat IUU fishing along with
other agencies including the Department of Fisheries, Royal Malaysian Navy and Royal
Malaysian Air Force.

Aside from the above laws, Malaysia has introduced several National Plan of Actions
(NPOAs) to curb this problem. The NPOA – Fishing Capacity aims to manage fishing
capacity in order to balance fishing efforts with available resources in a sustainable manner.
Through this plan, several management initiatives to control fishing capacity were established
including fishing zones and vessel monitoring system. Withal the National Plan of Action to
Prevent, Deter and Eliminate IUU Fishing (NPOA-IUU) has been developed in accordance
with the 2001 FAO International Plan of Action to Prevent, Deter and Eliminate Illegal,
Unreported and Unregulated Fishing (IPOA-IUU) which aimed to combat IUU fishing
through multidimensional measures inclusive of market-related measures and measures to be
taken through regional fisheries management organisations.

VI. IUU FISHING: THE PHILIPPINES’ APPROACH
The Philippines has a long history in fisheries and marine resource management with a
special feature of traditional tenure rights. The right to use fishery resources for sustenance is
preserved in the Philippines Constitution in which the ocean is an open access resource.1074
The management of fisheries and marine resources in the Philippines are based on the
following legislation:

(1). Local Government Code (Republic Act no. 7160) (1991)
(2). Fisheries Code (Republic Act no. 8550) (1998) (Amended Fisheries Code RA

10654 2015)
(3). National Integrated Protected Areas System Act (Republic Act no. 7586) (1992)
(4). Indigenous People's Rights Act (Republic Act no. 8371) (1997)
The Local Government Code (Republic Act No. 7160) was enacted to “transferring
control and responsibility of delivering basic services to the hands of local government units
(LGU). It aimed to enhance provision of services in the grass roots level as well as improve
the efficiency in resource allocation. Further, it sought to widen the decision-making space by
encouraging the participation of stake holders, especially in the local level.” The Code adopts
a ‘bottom-up’ approach whereby the local government units shall will have more powers,
authority, responsibilities, and resources.1075
The Philippines government passed Executive Order 154 a National Plan of Action
(NPOA) to prevent, deter and eliminate IUU fishing in 2013. Similar to the IPOA-IUU, this
plan is the framework to address the ecological, biological and socio-economic challenges
posed by IUU fishing. Thenceforward, the Republic Act 10654 was enacted in 2015, which
aimed to prevent, deter and eliminate illegal, unreported and unregulated fishing, latterly
amending the 1998 Philippines Fisheries Code (Republic Act No. 8550). The Philippine
Fisheries Code of 1998 (Republic Act No. 8550) was initially to provider for the

1074 Pomeroy, Robert, and Catherine A. Courtney.
1075 Section 2 of the Local Government Code (Republic Act no. 7160) (1991).

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development, management, and conservation of fisheries and aquatic resources, integrating
all laws pertinent thereto, and for other purposes.

Section 3 of the Fisheries Code (Republic Act no. 10654) (2015) has defined IUU
fishing as: “Illegal Fishing – means fishing activities conducted by Philippine fishing vessels
operating in violation of Philippine laws, Regional Fisheries Management Organisation
resolutions, and laws of other coastal states”.

“Unregulated Fishing – refers to fishing activities conducted by:
(a) Vessels without nationality but operated by Filipino and/or Filipino corporation;
(b) Philippine flagged fishing vessels operating in areas managed by RFMOs to

which the Philippines is not a party to; or
(c) Philippine flagged fishing vessels operating in areas or fish stocks where there are

no applicable conservation and management measures.”
“Unreported Fishing – refers to fishing activities which have not been reported, or have
been misreported to the Department, in contravention of national laws and regulations of the
Philippines, or undertaken in the area of competence of a relevant RFMO which have not
been reported or have been misreported, in contravention of the reporting procedures of that
organisation and further elaborated by regulations to be promulgated by the Department."
Section 7 of the Code provides that the number of licenses and permits for fishery
activities are subject to harvest control rules and reference points as determined by scientific
studies or best available evidence. Nevertheless, the allocation preference to be given to the
nearest local communities to the municipal waters. Furthermore, the new Code also stipulates
for the establishment of a monitoring, control and surveillance system and coordinated with
several agencies and private sector in order to ensure that the sustainable management and
conservation of fisheries and aquatic resources in Philippine waters.1076 Moreover, the
Department is authorised to adopt port state measures that must be complied with by foreign
fishing vessels in accordance with Section 42. Under the new law, fishing or taking of are,
threatened or endangered species (species listed in Appendix I of the Convention on the
International Trade in Endangered Species of Wild Flora and Fauna (CITES) or those
categorised by the International Union for Conservation of Nature and Natural Resources
(IUCN)) are deemed unlawful.1077 One critical component of IUU fishing is destructive
fishing practice that damage the marine ecosystem. Section 92 of the Act forbids fishing
through explosives, noxious substance or electricity in the Philippines waters. The Republic
Act no. 10654 further illegalises the usage of fine mesh net in fishing. Section 89 of the Act
touches upon unreported fishing whereby no person can engage in unreported fishing or to
fail to comply with the reportorial requirements. Likewise, Section 91 underlines the
prohibition of any foreign person, corporation or entity to fish or operate any fishing vessel in
the Philippines waters.
The objective of the National Integrated Protected Areas System Act (Republic Act no.
7586) is to provide for the establishment and management of national integrated protected
areas system, including wetland, or marine. The law also specifies other measures of
establishment of the system as to guide for formulating individual plans for each protected
area.1078Although the system administered by the Department of Environment and Natural
Resources and Protected Area Management Board, the law recognises ancestral land rights
and other customary rights in protected areas.1079 In conjunction with that, the Indigenous
Peoples Rights Act 1997 (Republic Act No. 837) dispense for the establishment of the
National Commission on Indigenous Cultural Communities/Indigenous Peoples (NCIP). The

1076 Section 14 of the Fisheries Code (Republic Act No. 10654).
1077 Section 102 of the Fisheries Code (Republic Act No. 10654).
1078 Section 5 and Section 9 of the National Integrated Protected Areas System Act.
1079 Section 13 of the Indigenous People's Rights Act (Republic Act no. 8371).

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Commission has power to formulate, coordinate and implement policies, plans and programs
to promote and protect the rights and well-being of the Indigenous Cultural
Communities/Indigenous Peoples including matters pertaining to fisheries rights and
management.

VII. CONCLUSION
Marine ecosystems and life need to be preserved for the future generations. The marine
ecosystem is a habitat for various marine life including variety species of fish, molluscs and
invertebrates that critical for our food security. Undeniably, IUU fishing leads to a drastic
declining pattern of global fish stocks. Notwithstanding many countries have developed
NPOA on IUU fishing, this issue is still impetuous and constitute a real threat to local
artisanal fishers. In other respects, IUU fishing is not merely a crime against fish, but it is a
complex crime that requiring cooperative legal enforcement. Traditionally all fisheries related
offences have been regarded as a conservation problem and do not qualify as a conventional
crime. Therefore, the domestic laws only provide for fairly lenient punishments that non-
deterrent in nature. Nevertheless, currently the modus operandi of many IUU fishing vessels
has become more complicated. IUU fishing vessels invasion and the presence of foreign
fishers and incident of various criminal cases including sea robbery, human and illicit goods
trafficking are threats to local artisanal fishers and undermine the national security.

Both Malaysia and the Philippines have taken several measures including the 1995
FAO Code of Conduct for Responsible Fisheries, the Agreement on Port State Measures
(PSMA) and the International Plan of Action to Prevent, Deter and Eliminate Illegal,
Unreported and Unregulated Fishing (IPOA-IUU). Lack of enforcement, as well as
governments’ commitment and regional cooperation will root IUU fishing to remain a threat
to national security. These organised crimes are committed transnationally along the value
chain of fisheries products, from the sea to the table. Therefore, a broader collaboration and
cooperation with various departments and agencies are required. IUU fishing needs to be
addressed from multi-disciplinary and criminal law enforcement approach. The public
awareness on IUU fishing also needs to be improved along with the implementation
monitoring and evaluation against all exploitation activities and fisheries development.
Besides, infrastructure and surveillance facilities need to be upgraded as well as the need to
increase capacity and capability institutional frameworks and law enforcement agencies.

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