The mechanisms of enforcement and execution of maintenance order in the Syariah court in Malaysia

Abstract

This study had examined and identified the mechanism used for the enforcement and execution of maintenance orders in Syariah Court. Hence, files pertaining to the claim for cases of enforcement by the court process were analysed quantitatively and qualitatively to identify the mechanisms that had been employed. Other than that, general observation was made to look into the process undertaken by court players; such as lawyers, judges, and the Family Support Division, as well as the others, to determine the importance of and the relationships between the parties. Furthermore, this study adopted the quantitative and qualitative approaches to comprehensively examine the mechanism used. In the quantitative approach, data were gathered from selected filed cases from five states and they were further analysed quantitatively. Nevertheless, only 355 cases had been found suitable for analysis and relevant to the research. The quantitative method employed the Statistical tool (SPSS) to collect and analyse the data. On the other hand, a combination of research methods from legal analysis; historical to comparative methods, was undertaken for the qualitative approach. As a result, the findings of the research suggested that the enforcement and execution of court orders had been based on administrative actions, as well as court action. However, the administrative action was not legally bound, and thus, any action initiated by the administrative action should end up with a legal action. It was also found that most of the maintenance orders issued by the Syariah Court did not state the channel and method of execution, especially those that involve the payment of money orders. The study also revealed that even if the order was obtained through mutual agreement, it was not a guarantee that the order was adhered to by all parties. In addition, the significant findings indicated that an effective mechanism for the enforcement and execution of maintenance order did not only depend on the legal process alone, but also must possess a strong assimilation between legislative and administrative actions. Therefore, the court players had effectively performed their own roles during the process of enforcement. On top of that, Islam envisages that the enforcement and execution of court orders require the court itself to carry out the duty. However, in the event of the disablement of a court to carry out the duty, it might appoint any person to carry out the task. For that reason, the court must essentially ensure that the order given is indeed enforceable. Finally, regardless of the mechanism of the enforcement, cooperation from all parties, especially judgment debtors, had been discovered vital to ascertain the success of enforcement mechanism