There should be no second thoughts: Bar
Published on: Tuesday, August 30, 2005
Kota Kinabalu: A Convention which has its aims in promoting the interests and welfare of children, spouses and other family relations should be signed, ratified and acceded to without hesitation.Provided no outrage on justice or public policy is committed, this ought to be the move by Malaysia if it holds paramount the protection of its children (mindful as it should be of its obligations as signatory to the Convention on the Rights of the Child). Doing so is also recognising the role and importance of the family unit, and ensuring them a minimum standard of living," stressed Foo Yet Ngo (pic) from the Malaysian Bar Council.
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She presented the Malaysian Civil Law perspective on the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, during a seminar: An Introduction to the Hague Conventions - Fostering the Rule of Law in Cross-border/Transnational Civil and Commercial Relations in the Asia Pacific. An examination of the preamble to the Convention, which is currently being drafted at the Hague Conference on Private International Law shows its aims as being a strive for: * A recognition that every child is entitled to a standard of living adequate for the child's physical, mental, spiritual, moral and social development; that parents and others responsible for the child have a primary responsibility to secure these conditions of living necessary for the child's development; and States should therefore take all appropriate measures to secure the recovery of maintenance for the child.* A recognition of the importance of maintenance obligations in other family relationships, parentage, marriage or affinity.
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"The above-said reiterates the ideals and aspirations of Article 27 of the United Nations Convention on the Rights of the Child (Nov 20, 1989), which Malaysia is party to and which Article (i.e.27) has not been reserved by us. "Becoming a signatory to the proposed Convention will simply be testimony to our commitment to fulfil our obligations under the said United Nations Convention," she emphasised.
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According to her, in the general scheme of things, owing to the principle of territorial sovereignty, a judgement delivered in one country cannot, in the absence of international agreement, have a direct operation of its own force in another."In Malaysia, a foreign judgement can be enforced either at common law by bringing an action on the judgement or, in cases to which they apply, by registration under the Reciprocal Enforcement of Judgements Act 1958, which is modeled upon the United Kingdom Foreign Judgements (Reciprocal Enforcement) Act 1933. The Act applies on the basis of reciprocity to certain countries specified in the Act, and can be extended to others by Order of the Yang Di Pertuan Agong."At common law, a foreign judgement may be enforced by action in Malaysia provided:(a) the foreign Court had jurisdiction by Malaysian conflict of law rules;(b) if in personam is for a definite sum of money that is not a tax, fine or penalty; and (c) the judgement is final and conclusive. "Statutory enforcement of a foreign judgement under the Reciprocal Enforcement of Judgements Act 1958 requires that:* The judgement must have been that of a superior court of a country to which the Act applies, and not an appeal from a subordinate court.* The judgement must be for a fixed sum of money not being a sum in respect of taxes, or a fine or other penalty; and* The judgement must be "final and conclusive" as between the parties thereto."Meanwhile, the requirement that a foreign judgement must be final and conclusive usually makes it impossible to enforce a foreign maintenance order."A foreign maintenance order for periodical payments ranks at common law as a foreign judgement in personam. If, as is usually the case in maintenance orders, the foreign court has power to vary the amounts of the payments, the foreign order cannot be enforced at common law or under the Reciprocal Enforcement of Judgements Act 1958 because it is not "final and conclusive". Accordingly, only arrears may be recovered by an action on the foreign maintenance order or upon registration under the Statute."The Maintenance Orders (Facilities for Enforcement) Act 1949 (Revised 1971) at common Law and the Reciprocal Enforcement of Judgements Act 1958, preventing the enforcement of foreign maintenance orders has been rectified by the Maintenance Orders (Facilities for Enforcement) Act 1949 (revised 1971) Act 34, which provide for the enforcement in Malaysia of maintenance orders made in reciprocating countries and vice versa.Reciprocating countries under this Act consist mainly of countries of the Commonwealth, the latest reciprocal arrangement having been entered into with the Hong Kong Special Administrative Region of the People's Republic of China.Machinery is provided by Section 5 of the Act for a person resident in Malaysia to get a provisional maintenance order from a local Court (i.e. Sessions or a Magistrate's Court), which will be enforceable against a parent or spouse if and when it is confirmed by a Court in the country where such parent or spouse resides. Section 6 of the Act provides reciprocal machinery whereby a provisional order made in a reciprocating country to which the Act extends, against a parent or spouse resident in Malaysia, can be confirmed by a Court having jurisdiction in Malaysia.Under this Act there are two hearings in the Court in Malaysia, one in the absence of the respondent spouse/parent resident in the reciprocating country and the other in the absence of the applicant spouse/parent against a respondent parent/spouse resident in Malaysia."The respondent spouse/parent resident in Malaysia against whom a provisional order of maintenance has been made by a reciprocating country may raise any defence that he might have raised in the original proceedings had he been a party thereto but no other defence."It is entirely within the discretion of the Court whether to confirm the order, with or without modification, or refuse to confirm it, or remit the case to the court, which made the order for the purpose of taking further evidence. This machinery is sometimes known as the 'shuttlecock' procedure.' Stay up-to-date by following Daily Express’s Telegram channel.
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