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

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 hethen was).

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.

FAMILY SUPPORT DIVISION

Goals:

enforcing order

maintenance issued bySyariah 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 herchild. Nor father on account of his child an heir shall bearobligations 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 otherwiseprovides, it shall be the duty of a man to maintain hischildren, whether they are in his custody or the custody of anyother person, either by providing them with suchaccommodation, clothing, food, medical attention, andeducation 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 isbased on the existence of a system of dualismejudiciary in the country. In other words, the SyariahCourt operates on a separate concept than practised incivil court.

• Section 245 of Syariah Court Civil Procedure Enacmentof Selangor.

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• Abd al-Kareem Zaydan state in his Kitab known as Nizam al-Qada’ fi al-Shari‘ah al-Islamiyyah, p. 241 “When the judgedelivers a judgment, he should execute it himself, if he isable. Otherwise, he may send a letter to another judge ifexecution requires seeking assistance from others”

• The said opinion is as follows:

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إذا أصدر القاضي حكمه، فإنه ينفذه بنفسه إن أمكنه

ذلك، أو الكتاب إلى غيره من القضاة إذا استلزم التنفيذ

االستعانة باآلخرين

• Abdul Wafa ' in the kitab known as al-Murafa'at al-Madaniyah wa al-Tijariyyah states that if there are anyobstacles in the enforcement of an order, then all suchresistance must be overcome in order to avoid anycomplications that will affect the reputation of the Court.But justice is not only upheld once the Court granted theright to parties disputed, but justice will only be achievedwhen 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 andunnecessary delay in enforcement action order that has been issued by acourt and eliminate any obstacles which may cause negativeimplications of such orders which in turn will damage the reputation ofthe judicial system. It will only be achieved when the judiciary able tosatisfy people as it was stated herein "Justice not only obtained whenproviding the entitled to his rights, but justice can only be achieved whenan individual is acquiring its rights easily, without misery, within a shortperiod (reasonable) as well as granting sufficient time for any appealprocess.”

•

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• Similarly, the view of Ibn Khaldun in the book Muqaddimahstating that Islamic judicial system is not only limited todecide a dispute brought before it, but a wider jurisdictionthat account for all domestic affairs and family as thefinancial monitoring of the use by the disabled such asorphans, the person who has a mental illness as well asthose of bankruptcy. In fact the duty of judges extend to theright of inheritance and wakaf. The original text of IbnKhaldun’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 فاقض إذا فهمت، وأنفذ :" رضي هللا عنه

“إذا قضيت“Decide something when you understand it, and execute when you judge it.”

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UNITS IN BSK

(UPPP)

(UPD)

INFORMATION

OBTAINED

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COMPLAINTS e-NAFKAH

Receiving complaints Register case

The parties called for advice

AttendNot

attending

When there is agreement, provide a draft settlement

agreement

When there is no agreement

Extended to UPPP for endorsement deal

Forwarded to the Enforcement and the

Implementation Order Unit (UPPP) and Fund

Management Unit(UPD) for further action

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1. Advice sessions to the judgment creditor whohas received an order for maintenance of theSyariah Court

2. Checking compliance with the implementation ofa maintenance order

3. Issue a notice of appearance to the formerhusband / father for the purpose of investigation

…continue

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4. Mediation Process

5. If agreement is reached, the agreement providedwill be signed by the parties and endorsed beforea judge.

6. Agreement which has been endorsed by the Courtshall be final and binding on the parties

7. If there is no agreement, the case will go toEnforcement and Implementation Order Unit (UPPP)

(UPPP)

Receive files from UKNP

Determine the action and make a report in the form of

pleadings to be filed in court

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

Implementation actions:Judgment Debtor Summons (SPP)Show Cause Notice / Committal

Seizure and Salehiwalah

ENFORCEMENT AND EXECUTION OF ORDER

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1. Acting as Syariah Lawyers to enforce order from the Syariah Court

2. Acting as bailiff to carry out the execution.

(UPPP)

PRE-TRIAL (DISCUSSION WITH CREDITORS)

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1. Determine the modes of enforcement and theexecution of the order: :a) Show Cause / Committalb) Judgment Debtor Summonsc) Foreclosure and Saled) Seizure and delivery of movable propertye) Hiwalahf) Judgement Noticeg) Variation Order Proceedings

UNIT PENGUATKUASAAN DAN PELAKSANAAN PERINTAH (UPPP)(UPPP)

…Continue

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2. File a case to get a mention

3. Serve summons and pleadings to thejudgment debtor

UNIT PENGUATKUASAAN DAN PELAKSANAAN PERINTAH (UPPP)(UPPP)

TRIALS

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Attend the trial until the Court issued Enforcement andExecution Order

Bailiff Action for the execution of the order

POST TRIALS

UNIT PENGUATKUASAAN DAN PELAKSANAAN PERINTAH (UPPP)(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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UNIT PENGUATKUASAAN DAN PELAKSANAAN PERINTAH (UPPP)(UPPP)

FUND MANAGEMENT UNIT (UPD)

Receive files from UKNP

Issue a notice of approval of funds

Undertake investigation

Provides investigation reports

Recommend approval of funds by the Fund

Committee

Further Inquiry

Rejected application

Approved and forwarded to the fund payments

unit

Process payments through eSPKB /

SPEK

Issue a notice of application fails

FUND MANAGEMENT

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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 contacted.

UNIT PENGURUSAN DANA (UPD)FUND MANAGEMENT UNIT (UPD)

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• Temporary accommodation services to the parties who attend the proceedings in SyariahCourt

• Purpose: Speed up the settlement of the case

• Criteria

-Reside outside jurisdiction

-poor( under had kifayah)

BSK TRANSIT

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Achievements

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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 creditorafter SFSD’s bailiff executed warrant of arrest. SFSD managed to recover the fundof RM 1,800.00 from the judgmentcreditor.

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• ZUBIDAH @ ZUBAIDAH BINTI ABD GHANI vJARIDENT BIN WAISING @ ZULKIFLI

• Judgment debtor satisfies the debt of RM44,020.00 (January 2006 – July 2013) foralimony order to the judgment creditor. Thesum was paid in cash after mediationsession was conducted.

HAMIDAH BINTI ABDUL WAHAB v JAMALUDIN BIN MOHAMAD

Judgment debtor satisfies the debt of RM100,000.00 by cash after the issuance ofjudgment notice with the aid of SFSD.

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EMILDA BINTI MD SALLEH v ABU BAKAR BIN LATIF

SFSD’s bailiff have executed anorder of seizure at judgementdebtor’s premise at Padang Jawa,Shah Alam. The judgment debtoragreed to pay RM 5,000.00 tojudgment creditor while thebalance due will be paid byinstallments. As a result, a sum ofRM 2,400.00 had been recoveredfrom judgment creditor.

Order of seizure at JD’s premises

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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,maintenanceduring 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 YUSOFFThe 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 ZAINUDINThe 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 ZULKIFLISettlement 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 KANCHILThe 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 YAHYAChild 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 MOHAMEDChild 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 GHAZALIThe 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.

IN JOHOR:CASE: NORMAH BINTI OTHMAN V ABDUL KARIM JAHIDChild 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 JABARIChild 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

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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: 55007-03-037-0016-2013) 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: 59001-03-033-0020-2013). 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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