Browsing by Author "Roslina Che Soh @ Yusoff, Ph.D"

This study is of dual purposes. Firstly it is to examine and analyse the procedural law, the system and mechanism used for the enforcement and execution of nafkah orders in the Syariah Court. The study is based on the premise that the procedural law is instrumental to the delayed and failed enforcement and execution of the nafkah court orders. Its agency the Family Support System (BSK) is examined as to the extent of its capacity to facilitate and expedite the enforcement and execution of the nafkah Orders. Secondly, the study also examines the viability of establishing a Family Fund to manage the payment of nafkah. It is the purpose of this study to examine various Funds found in this country. Whilst also benchmarking against some Funds found in some countries overseas to propose for the setting up of a Family Fund as a solution to the failure of payment of nafkah to deserving parties. This study adopts both doctrinal and nondoctrinal method. Analysis of data is based on qualitative analysis and the World Bank methodology. The qualitative method draws data from the Syariah principles, classical texts of the Muslim jurists, contemporary legal writings, the Malaysian Islamic Family laws, legislation, articles and cases both from within the country and other jurisdictions. The World Bank methodology is used to assess the efficiency of the procedure and mechanism on the three main aspects, namely time, costs and process which are indicators of delays and failed enforcement of the Syariah Court Orders. The study revealed that delays are the main complaints of the enforcement and execution of the Maintenance orders. Further it is proven that the process for enforcement and execution are governed by the procedural law which is proven to be complex allowing gaps for delays and increase in costs. Hence there is a need to reform the existing procedural law by removing the provisions that cause delays and to further simplify the proceedings to reduce bureaucracy. The findings indicated that an effective mechanism requires creativity and responsibility of courts personnel which include lawyers and litigants. Also the ingenuity and activism of judges to exercise their wisdom and discretion towards fair and speedy decisions. Judges lacking of empathy and absence of compassion lead to the present state of flux and uncertainties. It is proposed there is a need for a major and comprehensive overhaul of the of the court proceedings. The court set up is to be robust assimilating the administrative and judicial equation. Whilst admitting that an enhanced and more efficient procedure and proactive court system and personnel will improve the enforcement and execution of nafkah orders, the study demonstrated that financial constraint is the bigger obstacle to its success. It is found many defaulters are those without the means to make payments due to commitments such as having remarried or simply men of straw. Therefore, as a solution it is proposed a Family Fund or nafkah Bank is to be set up. This is to provide a source of fund made available for nafkah issues in particular as a preferred mode to the enforcement and execution of nafkah orders.

Globalisation has given rise to diversity in many facets of life, including cross-cultural marriages. As much it sounds appealing, there are many implications and negative consequences of these types of marriages. One of which is Parental Child Abduction. It usually takes place when the marital relationship does not sustain and results in divorce. Apart from deciding who will get what and how much, in terms of wealth, one crucial decision is the custody of children. In many instances, parents do not want to take laws into their own hands, therefore, abduct their own children. Parental Child Abduction has become a global phenomenon now. Parental Child Abduction is not new to Malaysia as it has gained importance after the highly publicised case of Raja Bahrin. By looking at all these challenges, the international community unanimously approved, adopted, and signed the Hague Convention on Civil Aspects of International Child Abduction, 1980. The 1980 Child Abduction Convention is an attempt to address the problem by using an automatic return mechanism of the abducted child to his country of habitual residence and for the courts of that State to adjudicate on the issue of custody, but due to conflicting substantive and procedural laws in various countries, it is difficult to resolve the issue. This Convention works in countries who are a member to it and like many other Muslim countries, Malaysia is also not a member to it. The present research examined and made a thorough analysis of the dual legal system of Malaysia, namely both the civil law and Islamic law to know whether Malaysia has adequate legal and procedural laws to address the inevitable issues and implications of Parental Child Abduction within and across the border of Malaysia. The crux of the thesis lies in The Hague Abduction Convention on Civil Aspects of International Child Abduction,1980, which is critically explained with its compatibility with Islamic law. This is followed by proposing substantive reforms to cope with domestic and cross border Parental Child Abduction in Malaysia. Data were collected from one hundred and fifty (150) legislators and related authorities of various NGOs on issues related to Parental Child Abduction. The collected data was then analysed by using qualitative and quantitative legal research methods. The findings of this research reveal that there are legitimate concerns on the part of stakeholders and on the fact that the opinion on the ground is against the accession. The findings of the present research proposed to strengthen section 52 of the Child Act, to amend section 361 of the Penal Code, to employ more Sulh officers, to establish an Arbitration Tribunal or tahkim and to establish a mediation centre. These findings will have invaluable implications for policymakers and related stakeholders.

This research attempts to evaluate the laws in Malaysia regarding to the adequacy of laws towards the protection of child in the criminal litigation process. Children are vulnerable in nature that need special care, attention and protection as to be treated according to the law in line with the principle accorded in the United Nations Convention on the Right of Child 1989 (UNCRC). Article 3 of the Convention depicts that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative or authorities or legislative bodies, the best interests of the child shall be a primary consideration. Malaysia started its child protection and welfare when it ratified the Convention in 1995. With the acceding of the Convention, Malaysia has a duty to comply with the Articles of the Convention that it has acceded. This was the major step for the country, in particular the Government’s attempts to comply with the Convention especially through the enactment of the Child Act in 2001 which came into force on 1 August 2002. This Act consolidated three former Acts, namely, the Juvenile Courts 1947, Women and Young Girls Protection Act 1973 and Child Protection Act 1991. In the preamble of Child Act 2001, it stated that children should be accorded special care and their welfare given paramount importance. This Act affords protection for children and tackles the problems of juvenile delinquency, child prostitutions and children out of control. It imposes severe punishments for child trafficking, abuse, molestation, neglect and abandonment and also mandates the formation of children’s courts. This Child Act 2001 provides comprehensive trial procedure in respect to children. It is submitted that by conforming to both the letter and spirit of these provisions would be adequate in safeguarding the interests in court. However, other statutes namely the Criminal Procedure Code, The Security Offence (Special Measures) Act 2012, Dangerous Drugs (Special Preventive Measures) Act 1985, and the Prevention of Crime Act 1959 also applicable to children in the event of any lacuna in the Child Act 2001 in which this tarnished the principle of best interests of the child accorded in the Convention because the application of these statues to child is incompatible since the child offenders and the adults offenders are to be treated the same under these laws. This research is focusing on the shortcomings in existing approaches towards the child offenders and those of crime victims. Even though the child offenders are guilty of committing the offence, they still need the protection as the intention of Parliament is clear to treat a child differently form an adult by establishing the Court of Children and providing special procedures under the Child Act 2001. The reference of this study will be much on the statutes, case laws, text books, articles and also view from the experts. On another note, this research is concluded with recommendations and suggestions and law reforms where it deemed necessary to guarantee the rights of the child are protected and at the same time to move towards internationally recognised practices such as restorative justice and diversion particularly for children committing minor offence.