Integrating Islamic Principles in Competition Law to Tackle the Challenge of Monopolies in Malaysia

Hatijah Mohamed Salleh

Khairunnisa Ishak

Farhana Hanim Mohsin

Norhayati Md Isa

 

Abstract: One of the prohibitions enshrined under the Malaysian Competition Act 2010 is abuse of dominant positions. The Act also provides a limited exception of monopoly under limb (c) of the Second Schedule. However, the Court of Appeal in a ruling in 2018 declared monopoly outside the Act’s ambits. This note argues that this ruling by the Court of Appeal contradicts with the existing provisions of the Act that allow a limited exception on monopoly and the ruling by Malaysia Competition Commission in its 2015 Dagang Net case. This note further argues that the Court of Appeal’s ruling conflicts with the principles of Islamic muamalat (transactions and mutual dealings) pertaining to monopoly. The analysis of these rulings, monopoly related provision of the Act, and Islamic law in this note provides insights on possible reconciliation of the current statutory provisions and the judicial approaches on monopoly with the Islamic principles and the theory of competitive harm.