UPPP - IAIS Malaysia

ROLE OF FAMILY SUPPORT DIVISION
IN THE ENFORCEMENT AND
EXECUTION OF SYARIAH COURT
MAITENANCE ORDERS
Presented By:
YAA DR. HAJI MOHD NA’IM BIN HAJI MOKHTAR
Chief Syarie Judge of Selangor
Department Of Syariah Judiciary Selangor
21st April 2015
IAIS
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Outline
•
•
•
•
Background
Components of BSK / FSD
BSK Transit
Achievements
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THE PROBLEM OF NON COMPLIANCE OF
MAINTENANCE ORDER IS MAIN CAUSE FOR
THE SETTING UP OF BSK/FSD
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ESTABLISHMENT
Meeting of the National Council for Islamic Affairs 46th time
on June 7, 2007 in Putrajaya, chaired by former Malaysian
Prime Minister 5th, Tun Abdullah Ahmad Badawi had agreed
that the Department of Syariah Judiciary Malaysia (JKSM)
created Family Support Division (BSK ) to enforce and
excecute maintenance orders that were not complied with by
ex-husband or father.
Consequently, the BSK was officially established on October 22,
2008 in Putrajaya, which was officiated by YB Dato 'Seri Dr.
Ahmad Zahid Hamidi, Minister in the Prime Minister (As he
then was).
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FAMILY SUPPORT DIVISION
Goals:
enforcing order
maintenance issued by
Syariah Court
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TYPES OF ORDER THAT MAY BE
ENFORCED BY BSK
• 1) WIFE MAINTENANCE ORDER
• 2) ‘EDDAH
• 3) CHILD MAINTENANCE ORDER
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Quranic Authority:
“No soul shall have a burden laid on it greater than it can
bear. No mother shall be treated unfairly on account of her
child. Nor father on account of his child an heir shall bear
obligations in the same way. "
Al-Baqarah:233
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ENACTMENT OF ISLAMIC FAMILY LAW
(STATE OF SELANGOR) 2003
• Section
73.
Duty
To
Maintain
Children.
(1) Except where an agreement or order of Court otherwise
provides, it shall be the duty of a man to maintain his
children, whether they are in his custody or the custody of any
other person, either by providing them with such
accommodation, clothing, food, medical attention, and
education as are reasonable having regard to his means and
station in life or by paying the cost thereof.
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Syara’ Authority In Relation To The Duty Of
The Court Carry Out Enforcement
• The establishment of the Syariah Court in Malaysia is
based on the existence of a system of dualisme
judiciary in the country. In other words, the Syariah
Court operates on a separate concept than practised in
civil court.
• Section 245 of Syariah Court Civil Procedure Enacment
of Selangor.
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• Abd al-Kareem Zaydan state in his Kitab known as Nizam alQada’ fi al-Shari‘ah al-Islamiyyah, p. 241 “When the judge
delivers a judgment, he should execute it himself, if he is
able. Otherwise, he may send a letter to another judge if
execution requires seeking assistance from others”
• The said opinion is as follows:
‫ فإنه ينفذه بنفسه إن أمكنه‬،‫إذا أصدر القاضي حكمه‬
‫ أو‬،‫الكتاب إلى غيره من القضاة إذا استلزم التنفيذ ذلك‬
‫االستعانة باآلخرين‬
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• Abdul Wafa ' in the kitab known as al-Murafa'at alMadaniyah wa al-Tijariyyah states that if there are any
obstacles in the enforcement of an order, then all such
resistance must be overcome in order to avoid any
complications that will affect the reputation of the Court.
But justice is not only upheld once the Court granted the
right to parties disputed, but justice will only be achieved
when both parties get their rights as ordered.
• The opinion of him is as follows:
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• “Appropriate attention should be given to efforts to avoid delay and
unnecessary delay in enforcement action order that has been issued by a
court and eliminate any obstacles which may cause negative
implications of such orders which in turn will damage the reputation of
the judicial system. It will only be achieved when the judiciary able to
satisfy people as it was stated herein "Justice not only obtained when
providing the entitled to his rights, but justice can only be achieved when
an individual is acquiring its rights easily, without misery, within a short
period (reasonable) as well as granting sufficient time for any appeal
process.”
•
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• Similarly, the view of Ibn Khaldun in the book Muqaddimah
stating that Islamic judicial system is not only limited to
decide a dispute brought before it, but a wider jurisdiction
that account for all domestic affairs and family as the
financial monitoring of the use by the disabled such as
orphans, the person who has a mental illness as well as
those of bankruptcy. In fact the duty of judges extend to the
right of inheritance and wakaf. The original text of Ibn
Khaldun’s view is as follows:
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The views of the above three scholars are consistent with:
Message of Saidina Umar al-Khatab
Through the Risalah al-qadha ' to Abu Musa al
these Ash'ari, stating that :
“‫”ال ينفع تكلم بحق ال نفاذ له‬
“An order will be useless if it has not been
executed”
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The same emphasis has also been given by the 2nd Caliph to
Muadh bin Jabal r. a with regard to the importance of a judge
executing his own orders :
‫قال عمر في كتابه لمعاذ بن جبل‬
‫ وأنفذ‬،‫" فاقض إذا فهمت‬:‫رضي هللا عنه‬
“‫إذا قضيت‬
“Decide something when you understand it, and
execute when you judge it.”
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UNITS IN BSK
(UPD)
(UPPP)
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INFORMATION
OBTAINED
COMPLAINTS
e-NAFKAH
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Receiving complaints
Register case
The parties called
for advice
Attend
When there is agreement,
provide a draft settlement
agreement
Extended to UPPP for
endorsement deal
Not
attending
When there is no
agreement
Forwarded to the
Enforcement and the
Implementation Order
Unit (UPPP) and Fund
Management Unit(UPD) for
further action
1.
2.
3.
Advice sessions to the judgment creditor who
has received an order for maintenance of the
Syariah Court
Checking compliance with the implementation of
a maintenance order
Issue a notice of appearance to the former
husband / father for the purpose of investigation
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…continue
4.
Mediation Process
5.
If agreement is reached, the agreement provided
will be signed by the parties and endorsed before
a judge.
6.
Agreement which has been endorsed by the Court
shall be final and binding on the parties
7.
If there is no agreement, the case will go to
Enforcement and Implementation Order Unit (UPPP)
(UPPP)
Receive files from UKNP
Investigate updates
Judgment Debtor
If the Judgment Debtor has
not implemented the
order, it shall initiate
enforcement action
Issue a Warning
Notice to Judgment
Debtor
Determine the action and
make a report in the form of
pleadings to be filed in
court
Implementation actions:
Judgment Debtor Summons (SPP)
Show Cause Notice / Committal
Seizure and Sale
hiwalah
(UPPP)
ENFORCEMENT AND
EXECUTION OF ORDER
1. Acting as Syariah Lawyers to enforce order
from the Syariah Court
2. Acting as bailiff to carry out the execution.
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UNIT PENGUATKUASAAN DAN PELAKSANAAN PERINTAH
(UPPP) (UPPP)
PRE-TRIAL (DISCUSSION WITH
CREDITORS)
1.
Determine the modes of enforcement and the
execution of the order: :
a) Show Cause / Committal
b) Judgment Debtor Summons
c) Foreclosure and Sale
d) Seizure and delivery of movable property
e) Hiwalah
f) Judgement Notice
g) Variation Order Proceedings
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UNIT PENGUATKUASAAN DAN PELAKSANAAN(UPPP)
PERINTAH (UPPP)
…Continue
2.
File a case to get a mention
3.
Serve summons and pleadings to the
judgment debtor
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UNIT PENGUATKUASAAN DAN PELAKSANAAN PERINTAH
(UPPP) (UPPP)
TRIALS
Attend the trial until the Court issued Enforcement and
Execution Order
POST TRIALS
Bailiff Action for the execution of the order
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UNIT PENGUATKUASAAN DAN PELAKSANAAN(UPPP)
PERINTAH (UPPP)
THE IMPORTANCE OF THE ACCREDITATION OF SYARIE
LAWYERS FOR BSK OFFICERS
• Helping single mother to enforce maintenance
order issued by Syariah Courts.
• Provides free legal and counselling services;
• Implementing more aggressive enforcement action
to compel the judgment debtor to settle the
outstanding alimony and maintenance.
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FUND MANAGEMENT UNIT
(UPD)
Receive files from
UKNP
Undertake
investigation
Recommend approval
of funds by the Fund
Committee
Provides investigation
reports
Approved and forwarded
to the fund payments
unit
Issue a notice of
approval of funds
Rejected
application
Process payments
through eSPKB /
SPEK
Further
Inquiry
Issue a notice of
application fails
FUND MANAGEMENT
UNIT (UPD)DANA (UPD)
UNIT PENGURUSAN
FUND MANAGEMENT
Interim Maintenance Awarded To Women / Children Who Are Qualified
And Meet The Following Criteria:
Muslim;
Has obtained an order from the Syariah Court;
Reside in the state in which the application advances BSK funds has been
made
Willingness to file an application for enforcement of the Syariah Court
order;
Agree to cooperate in ensuring that appropriate action can be taken against
the judgment debtor;
There are reliability that the former husband / father can be traced and
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contacted.
BSK TRANSIT
• Temporary accommodation services to the
parties who attend the proceedings in Syariah
Court
• Purpose: Speed up the settlement of the case
• Criteria
-Reside outside jurisdiction
-poor( under had kifayah)
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Achievements
SELANGOR
WAN ASIAH BT WAN OTHMAN v A.RASAD
RAHMAN
Judgment debtor agrees to pay the sum of
RM 2,900.00 to the judgment creditor
after SFSD’s bailiff executed warrant of
arrest. SFSD managed to recover the fund
of RM 1,800.00 from the judgment
creditor.
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•
ZUBIDAH @ ZUBAIDAH BINTI ABD GHANI v
JARIDENT BIN WAISING @ ZULKIFLI
•
Judgment debtor satisfies the debt of RM
44,020.00 (January 2006 – July 2013) for
alimony order to the judgment creditor. The
sum was paid in cash after mediation
session was conducted.
HAMIDAH BINTI ABDUL WAHAB v JAMALUDIN
BIN MOHAMAD
Judgment debtor satisfies the debt of RM
100,000.00 by cash after the issuance of
judgment notice with the aid of SFSD.
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EMILDA BINTI MD SALLEH v ABU
BAKAR BIN LATIF
Order of seizure at JD’s
premises
SFSD’s bailiff have executed an
order of seizure at judgement
debtor’s premise at Padang Jawa,
Shah Alam. The judgment debtor
agreed to pay RM 5,000.00 to
judgment creditor while the
balance due will be paid by
installments. As a result, a sum of
RM 2,400.00 had been recovered
from judgment creditor.
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IN PULAU PINANG:
CASE: CHE SAM BINTI ADNAN BIN YAHYA V MD DESA:
Payment of arrears of children and wife alimony,maintenance
during eddah period, muta'ah and consolation to the children of
RM450, 000 in one lump sum for the neglect of maintenance
orders issued by the Syariah Subordinate Court of the Province
North. No registration UKNP: 57002-01-024-0159-2010
IN JOHOR:
CASE: SALMAH BINTI ZAINAL V ABDOL RAHIM BIN MD YUSOFF
The payment of child maintenance arrears amounting to
RM17,720.00 for the neglect of maintenance order dated May
10, 2006 (Civil Case No.: 01001-037-1535-2005)
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IN FEDERAL TERRITORY OF KUALA LUMPUR:
CASE: NOR ELINA V SAIFUL BAHRI BIN ZAINUDIN
The payment of child maintenance arrears of RM123,910.00 at
once for the neglect of maintenance order dated December 9, 1994
(Civil Case 67/1994)
DI JOHOR:
KES: NURUL ASHIKIN V MUHAMMAD ZULKIFLI
Settlement of child maintenance arrears amounting to
RM10,000.00 for the neglect of maintenance order dated July 21,
2009 (Civil Case No.: 01100-014-0638-2008)
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IN NEGERI SEMBILAN:
CASE: NORAINI KANCHIL
The payment of child support arrears in installments of RM 3,300.00
3 times the cost.
IN TERENGGANU:
CASE: NORLAILA BINTI NGAH V ABDULLAH BIN YAHYA
Child maintenance arrears amounting to RM1, 800.00 to be paid on
the day of the consultation carried out by officers of BSK.
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UPPP
IN PULAU PINANG:
CASE: ROZLINA BINTI ABDUL RAHMAN V AZAHAR BIN
AHMAD MOHAMED
Child maintenance arrears amounting to RM25, 000.00
which is part of the amount in arrears be paid on the
day of enforcement order was pronounce and the
balance of RM 23, 148.00 paid on the next day after
the judgment debtor be committed to prison one day
due to neglect maintenance order dated December 9,
1994 (Civil Case 67/1994)
CASE: MAZLINA MOHD MERICAN V NORISAM GHAZALI
The payment of child maintenance arrears amounting
to RM15, 000.00 which is part of the total backlog on
the same day orders issued by the Syariah High Court.
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UPPP
IN JOHOR:
CASE: NORMAH BINTI OTHMAN V ABDUL KARIM JAHID
Child maintenance arrears amounting to RM20, 000.00 which is
part of the arrears paid on the 3rd day of Judgment Debtor
committed to prison in the case of the Notice of Judgment Civil
Case No.: 01008-099-0286-2011
CASE: MISNANI BINTI RAHMAT V A RAHMAN BIN JABARI
Child maintenance arrears of RM10, 000.00 as part of the amount
in arrears paid on the second day of Judgment Debtor committed
to prison by an order of case under Notice of Judgment issued by
the Syariah Subordinate Court of Mersing.
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UPPP
IN NEGERI SEMBILAN:
CASE: SOFFI ARBAEYAH MOHD NOOR VS MD ALI SHAMSUDDIN
Child maintenance arrears of RM 11,160.50 which is paid through
two court actions filed, Notice of Judgment (UPPP Registration
No: 55100-03-076-0011-2013 and Judgment Debtor Summons
(UPPP Registration No.: 55100-03-037-0010-2013).
CASE: SITI NURAISHAH ABDULLAH VS AZRUL NIZAM AZIZAN
Child maintenance arrears of RM 9,850.00 through action of
Judgment Debtor Summons (UPPP Registration No: 55007-03-0370016-2013) and paid in lump sum at the end of October 2013.
.
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UPPP
IN TERENGGANU:
CASE: ABDUL AZIZ JAAFAR V ZAINUN BINTI OMAR
Child maintenance arrears of RM 20,000.00 paid by action OF
Notice of Judgment Civil Case No.: 11005-076-0030-2012 and if it
is not paid Judgment Debtor may be committed to prison for 14
days.
IN PERLIS:
CASE: NADZIRAH BINTI NORJAN VS MOHD RIZAL BIN OMAR
Child maintenance arrears of RM 3,200.00 be paid through action
of Judgment Debtor Summons (UPPP Registration No: 59001-03033-0020-2013). Payments made ​before the order was issued and
the case was withdrawn.
.
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AND MANY MORE CASES SOLVED WITH
PAYMENT FOR MORE THAN
RM2, 000,000.00 HAS BEEN RECEIVED BY
SINGLE MOTHERS AND THEIR CHILDREN ...
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THANK YOU
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Q & A SESSION
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