QUESTION 3

Family law disputes including divorce, child custody and other related family law
matters involve some of the most complex and personal situations that an individual could
encounter. The current civil law legal system which is lengthy and protracted litigation is not
the best option to resolve family disputes as it would affect the parties mentally, emotionally
and also financially. In Malaysia, there are several alternative dispute resolutions provided
for family law disputes. One of the alternative dispute resolutions involving family law
disputes for the non – Muslim is governed under section 106 of the Law Reform (Marriage
and Divorce) Act 1976 and for the Muslim, the applicable law is under section 47 of
Islamic Family Law (Federal Territories) Act 1984.

In matter of divorce for the non – Muslim in Malaysia, the applicable statutory act is
the Law Reform (Marriage and Divorce) Act 1976. There are two types of petitions of
divorce that is being applied in Malaysia which are the joint petition and single petition.
Section 52 of the Law Reform (Marriage and Divorce) Act 1976 states about the joint
petition whereby the dissolution of marriage is mutually consent by both parties and the
parties are agreed to all the terms and condition that has been finalized by both parties, the
husband and the wife. On the other hand, if one party is not consented to the dissolution of
marriage or there are any disputes arises as to the dissolution of marriage, the party can file
for a single petition which in accordance to Section 53(1) of the Law Reform (Marriage
and Divorce) Act 1976 which states that either party can file for the application of divorce
solely on the ground of irretrievable break down. For the application of single petition, in
order to prove that there is a breakdown of marriage, based on Section 54(1) of the Law
Reform (Marriage and Divorce) Act 1976, the party who filed for the petition for divorce
must show that at least one of the requirements under Section 54(1) of the Law Reform
(Marriage and Divorce) Act 1976 is fulfilled. In determining whether the marriage has been
irretrievably broken down, the court will consider either the four grounds which are one of the
party has committed adultery and another party finds it intolerable to continue to live
together, one of the party is behaving in manner that another party cannot reasonably be
expected to continue living together, one of the party has been deserted for the minimum
period of two (2) years or both parties has been living apart for the minimum period of two
(2) years. A single petition must not be filed at the court before both parties has had
recourse to a person or body that attempts to reconcile the matter between both parties, the
husband and the wife as stated in Section 55 of the Law Reform (Marriage and Divorce)
Act 1976.

1
 Section 106(1) of the Law Reform (Marriage and Divorce) Act 1976 require the
parties to undergo a marriage reconciliation before the parties can proceed for divorce
hearing in court through single petition. In the recent case of LIM SZE MEY V. LOOI GUAN
HEON [2021] 8 CLJ 766, the court rejected the application of single petition made by the
petitioner due to the incompliance of Section 106(1) of the Law Reform (Marriage and
Divorce) Act 1976 where the parties need to be referred first to the conciliatory body before
filing a single petition in the court. of Section 106(3)(b) of the Law Reform (Marriage and
Divorce) Act 1976 defines the meaning of “conciliatory body” which include a marriage
tribunal. The implementation of section 106 of the Law Reform (Marriage and Divorce)
Act 1976 for a marriage tribunal is set up under National Registration Department which is
under the jurisdiction of the Minister of Home Affairs.

There are several conciliatory officers across the states in Malaysia appointed to in
charge in managing the marriage tribunal under National Registration Department. Certain
procedure needs to be fulfilled for the parties who wish to file for application for referral to
marriage tribunal in order to file for single petition in the court. One of the major conditions to
be fulfilled is the applicant is required to be present when submitting the application for
referral to marriage tribunal at the National Registration Department office and the
application must be submitted at the National Registration Department office within the area
in which the couple last resided together. Along with the application for referral to marriage
tribunal, the applicant needs to provide a few supporting documents such as the application
form (JPN.KC14), the Identification Card of the applicant or if the applicant is a foreigner,
there is a need for the applicant to provide a passport and the original Marriage Certificate.
The registration payment that needs to be paid by the applicant is RM2 and the cost for the
tribunal certificate is RM200.

Upon receiving the application form from the applicant, the officer at the marriage
tribunal will fix a series of meeting with both parties in disputes which is the husband and the
wife to discuss and review the issues and problems faced by both parties. The objective of
the discussion is to help both parties to resolve the difficulty and disputes arises and restore
the marriage. According to Section 106(5)(a) of the Law Reform (Marriage and Divorce)
Act 1976, the marriage tribunal is required to resolve the matrimonial difficulty between both
parties, the husband and the wife within the period of six (6) months. Based on Section
106(5)(c) of the Law Reform (Marriage and Divorce) Act 1976, it is stated that during the
proceeding of marriage tribunal, the party cannot be represented by his or her appointed
solicitor without the approval of the conciliatory body. After a series of meeting and
discussion between both parties which is the husband and the wife, if the marriage tribunal
satisfied that both of the parties could not be reconcile and the marriage is broken down and

2
cannot be restored, the marriage tribunal will issue a certificate stating that the marriage has
been irretrievably broken down as stated in Section 106(5)(b) of the Law Reform
(Marriage and Divorce) Act 1976. Once the tribunal certificate has been issued by the
marriage tribunal, either party can file for a single divorce petition in the court to obtain the
decree nisi which would be absolute after three (3) months. During the three (3) months
period after the decree nisi has been obtained, either party is prohibited to remarry until the
end of the cooling period of three (3) months, where the decree becomes absolute.

Family law matters where the disputes parties is a Muslim is under the jurisdiction of
Shariah Court and will be governed by Islamic Family Law (Federal Territories) Act 1984
and will be read together with the states enactment that is Islamic Family Law Enactment
2003. According to the Section 47(5) of the Islamic Family Law (Federal Territories) Act
1984, when one party to the dispute is not consented to the divorce or it appears to the court
that there is a possibility to restore a marriage through reconciliation, the court shall appoint
a conciliatory committee to attempt to reconcile the parties and restore the marriage. The
conciliatory body appointed by the court in accordance with Section 47(5) of the Islamic
Family Law (Federal Territories) Act 1984 shall consist of one religious officer who would
act as a Chairman and two other persons, which one person to act for the husband and
another one is for the wife. The word “religious officer” as stated in the Section 47(5) of the
Islamic Family Law (Federal Territories) Act 1984 is not properly defined by the Islamic
Family Law Enactment 2003. However, in practice the religious officer who is the Chairman
in the conciliation committee is usually the Head of Family Counselling and Development
Unit or the Head of Registration of Marriage, Divorce and Revocation Unit in the Department
of Islamic Religion. In the case of Abdul Razak v. Siti Jamah (1988) 7 JH 84, the Melaka
Shariah Court held that a reconciliation conducted by the army religious officer was valid and
he was in the opinion that the army religious officer fell within the ambit of “religious officer”
as provided in Section 47(5) of the Islamic Family Law (Federal Territories) Act 1984.

As stated in the Section 47(5) of the Islamic Family Law (Federal Territories) Act
1984, the Chairman will be assisted by another two persons who will act for the husband and
the wife respectively. According to Section 47(6) of the Islamic Family Law (Federal
Territories) Act 1984, the two persons who represent the husband and the wife would their
own relatives who has knowledge on the disputes between both parties, the husband and
the wife. In the event where there are no relatives available, the court will appoint a
respected people in the community such as “imam” to act on behalf of the parties in disputes
which is the husband and the wife. The representative for the husband and the wife will be
guided by the court on the procedure on how the conciliation would be conducted.

3
 Based on Section 47(9) of the Islamic Family Law (Federal Territories) Act 1984,
the committee is required to settle the disputes within the period of six (6) months from the
date of the body is being appointed. In the case where the conciliation is not successful in
which the committee is not agreed with each other or the court is not satisfied with the
performance of the committee, in accordance with Section 47(8) of the Islamic Family Law
(Federal Territories) Act 1984, the court has a power to appoint another committee to act
on behalf of the parties. Section 47(10) of the Islamic Family Law (Federal Territories)
Act 1984 explained further on the process of reconciliation under the committee appointed
by the court, where the attendance of both parties, the husband and the wife are required.
Both parties will be given an opportunity of being heard or may hear the justification by each
party. Also, both parties can make inquiries to another parties as long as the committee
thinks it fit and necessary. In Section 47(12) of the Islamic Family Law (Federal
Territories) Act 1984, it is stated that only a family member can represent the parties, the
Sharie lawyer appointed by any of the parties cannot appear and act on behalf of the parties
although the Sharie lawyer has knowledge about the circumstances of the disputes.

Next, according Section 47(13) of the Islamic Family Law (Federal Territories)
Act 1984, the court will dismiss the divorce application made by one of the parties once the
conciliation is successful and the parties are ready to resume their conjugal relationship. In
the event where the reconciliation failed, Section 47(14) of the Islamic Family Law
(Federal Territories) Act 1984 states that the committee will issue a certificate that the
committee is unable to affect the conciliation and persuade the parties to resume the
marriage. Then, the court will play its role by advising the husband to pronounce one talaq
before the court. If the court is unable to procure the presence of the husband or the
husband refused to pronounce talaq, the court will refer the matter to Hakam under Section
48 of the Islamic Family Law (Federal Territories) Act 1984.

The need to comply with Section 47 of the Islamic Family Law (Federal
Territories) Act 1984 can be seen in the case of Razimah Haneem v Yusuf Hasbullah
(1993) 9 JH 237. In this case, the husband filed a petition for divorce under Section 47 of
the Islamic Family Law (Federal Territories) Act 1984, since it was a contested divorce,
the court directed that the conciliatory committee to be appointed. During the proceeding, the
husband pronounced talaq out of court in the absence of the wife but duly witnessed. The
court confirmed the talaq by only relying on the husband’s statement that the husband has
divorced his wife. The case has been appealed to the Shariah Court of Appeal where the
Appeal Court set aside the judgement and ordered for a retrial to be conducted in
accordance with the requirement under Section 47 of the Islamic Family Law (Federal
Territories) Act 1984.

4
 Based on the explanation above, it can be seen that there is a similarities and
differences between the conciliation body for non – Muslim under section 106 of the Law
Reform (Marriage and Divorce) Act 1976 and conciliation committee for the Muslim under
section 47 of Islamic Family Law (Federal Territories) Act 1984.

The similarities that can be seen between the conciliation body for both non – Muslim
and Muslim are that the body is required to settle the disputes and difficulty arises between
both parties, the husband and the wife within the period of six (6) months as stated in
section 106(5)(a) of the Law Reform (Marriage and Divorce) Act 1976 and section 47(9)
of Islamic Family Law (Federal Territories) Act 1984. Also, during the conciliation
process, for both bodies, the presence of the solicitor is not required and the parties to the
disputes must be presented or in case the parties is unable to present, the relatives of each
party can appear on behalf of them.

In term of the differences between both conciliation bodies, for the non – Muslim, the
marriage tribunal officer is appointed by National Registration Department which is under the
jurisdiction of the Minister of Home Affairs. The tribunal did not require another two person to
represents both parties as required in section 47 of Islamic Family Law (Federal
Territories) Act 1984 which applied to the Muslim. Also, under section 47 of Islamic
Family Law (Federal Territories) Act 1984, the conciliatory body is appointed by the court
after the application of divorce has been applied to the court whereby in a non – Muslim
divorce, the parties are required to refer to the marriage tribunal first before filing a petition at
the court.

As a conclusion, there are certain similarities and differences between both

conciliation body under section 106 of the Law Reform (Marriage and Divorce) Act 1976
for the non- Muslim and conciliatory body appointed by the court under section 47 of
Islamic Family Law (Federal Territories) Act 1984 for divorce of Muslim.

5
QUESTION 5

Ombudsman is a word comes from Sweden around 1809 which established the
position “Justlieombudsman” to oversee the government administration. The word is
translated as the “citizen’s defender” or the “representative of the people”. Since it has been
introduced on 1809, the ombudsman scheme has been adopted around the world either by
the government or private industry such as Bank and Insurance Provider.

In Malaysia, Bank Negara Malaysia has approved the establishment of the new
Financial Ombudsman Scheme under the Financial Service Act 2013 and Islamic
Financial Services Act 2013. The aim of the establishment of the Financial Ombudsman
Scheme is to resolve the disputes against financial service provider and provide a fair and
efficient way for financial consumers to resolve the disputes. The Financial Ombudsman
Scheme is introduced as an alternative to resolve the dispute out of court and not to be
considered as a replacement for any parties to take and proceed with legal actions in the
civil court. The operation of the Financial Ombudsman Scheme is in accordance with the six
(6) fundamental principles of independence, accessibility, accountability, transparency,
fairness and impartiality and effectiveness as has been stated in Section 3 of the Terms of
Reference for the Ombudsman for Financial Services. It is governed by a board of
directors who is a Chairman of the Ombudsman for Financial Services and also a retired
Federal Court Judge, Tan Sri James Foong.

The word “ombudsman” has not been expressly defined under the Financial Service
Act 2013. However, the definition of “ombudsman” can be found in Section 2 of the
Financial Services (Financial Ombudsman Scheme) Regulations 2015 where is stated
that ombudsman means an officer of the scheme operator appointed by the board of
directors of the scheme operator to adjudicate disputes referred to the approved financial
ombudsman scheme. The regulation further explained on the definition of the “approved
financial ombudsman scheme” which means any financial ombudsman scheme that has
been approved by the Bank Negara Malaysia in accordance with Section 126(2) of the
Financial Service Act 2013.

The Financial Ombudsman Scheme provide a process to handle complaints made by

customers of a financial service provider that includes the banks, insurance companies,
takaful operators, development financial institutions, designated payment instrument issuers,
insurance and takaful brokers, and financial advisers. In receiving the complaints made by
the consumer, the Financial Ombudsman Scheme will consider whether the action should be
taken through a legal action in court proceeding or through an alternative way which is by
ombudsman. Any complaint that are made by the consumer to the ombudsman is free of

6
charge unlike the legal action through court proceeding which will costs the consumer
certain expensive payment.

However, there is certain limit of disputed amount that can be brought to the
Financial Ombudsman Scheme which is the disputed amount must not exceed the amount
of RM250,000 and for the dispute involving motor third party property damage insurance and
unauthorized transactions which involved payment instruments and payment channel the
lower limit would be applied. The decision made by the Financial Ombudsman Scheme are
binding in nature and the decision must be supported with relevant laws, regulations, judicial
precedent or the terms and condition of the services provided by the financial services
provider.

The Financial Ombudsman Scheme is governed by a term of reference that has

been approved by the Bank Negara Malaysia through the Terms of Reference for the
Ombudsman for Financial Services. Based on Section 2 of the Terms of Reference for
the Ombudsman for Financial Services, the word “Term of Reference” is defined as the
term of the Financial Ombudsman Scheme that has been approve by the Bank Negara
Malaysia. The term of reference is used to intensify the effectiveness of the Financial
Ombudsman Scheme and provide helps in establishing the financial services industry in
Malaysia as a benchmark for just and fair financial services in the country. The
establishment of the Financial Ombudsman Scheme shows the effort of the Bank Negara
Malaysia to increase the resolution for the disputes involving financial matters for consumers
and to strengthen consumer protection. The power and jurisdiction of the Financial
Ombudsman Scheme is subjected to the Financial Services (Financial Ombudsman
Scheme) 2015 which is enforceable in accordance with Section 126 of Financial Services
Act 2013. This means that Financial Ombudsman Scheme has the power to refer cases that
has been complaint and lodged by the financial consumer that include services for personal,
domestic or anyone who fit the criteria.

However, the Financial Service Act 2013 expressly prohibited a consumer that has
been referred to the Financial Ombudsman Scheme to lodge a claim under the tribunal
which according to Section 126(5) of the Financial Service Act 2013, when the dispute
has been referred to the Financial Ombudsman Scheme, the consumer who lodged a
complaint is not eligible and entitled to make a claim for the same dispute with the Tribunal
for Consumer Claims.

7
 In United Kingdom, the ombudsman was established in 1967 where the country
recognizes the ombudsman as a new type of public official who could investigate complaints
of citizens about any inefficiency act by the government official. It is one of the ways of
resolving the matter outside the court without the need to take legal action and go through a
court proceeding. The ombudsman in United Kingdom is not only used in the administration
but also being applied to the business sector such as private college and private clinics.

The Ombudsman in United Kingdom is done a through an appointment made by the

Crown in accordance with the terms under the Parliamentary Commissioner Act 1967.
According to the Parliamentary Commissioner Act 1967, the ombudsman serves for a
term of seven (7) years. However, in recent practice in United Kingdom, the appointment of
Ombudsman is by the Chairman of the Public Administration Select Committee participates
in the process and the panel has an external assessor from the Public Appointment
Commissioner’s office to ensure that the appointment is made fairly according to the
Commissioner’s Code of Practice.

The ombudsman appointed by the Chairman is responsible for certain matters. First,
the ombudsman is responsible for providing the Treasury with a three (3) Year Funding
Settlement Submission as required. Second, the ombudsman is responsible for providing the
Treasury with a Main Estimate of resources, capital and cash requirements, including pay,
for the following financial year in accordance with the published timetable and lastly the
ombudsman also responsible for ensuring that such Estimates are scrutinized and approved
by the Executive Board with due regard to the need for economy, efficiency and
effectiveness in the request for and use of resources; and, for pay, ensuring that full account
is taken of the need for broad comparability with the Civil Service.

Next in Sweden where the practice of the ombudsman is originated for the first time
in 1809, any complaint made by the public against the inefficiency of the service by the
public service and local government would be handled by the ombudsman. The function of
ombudsman in Sweden are to ensure that the public authorities and other officials comply
with the laws and other statues that govern all of their actions. Also, the ombudsman is
functioned to initiate the disciplinary procedure against the public authorities or official
regarding their misconduct.

The National Board for Consumer Disputes in Sweden is an independent body of a

public authority in charge to solve disputes involving the terms and conditions of goods and
services towards the consumer. The Board plays an important role as an alternative dispute
resolutions mechanism for the consumer. However, the final recommendation by the Board
is not binding. Hence, the Consumer Ombudsman comes into the picture to act as a

8
representative for the consumer. In order for the Consumer Ombudsman to intervene the
court proceeding, it must be shown that the case brought to the court is important for the
improvement of law and legal interpretation for the consumer interests. In order to protect
collective consumer interests, the Consumer Ombudsman may bring a case for injunctive
relief against business operators who violate fair marketing practices and the consumer
contract terms statute.

Many countries adopted the application of ombudsmen from Sweden such New
Zealand. In New Zealand, the function of ombudsman is to investigate complaints against
the government agencies, investigate any agencies that fail to provide information requested
in compliance with the Official Information Act, protect any whistleblowers which to include
investigating the administration of prisons including any other places of detention and
encourage good administration by providing a training to the agencies and giving feedback.

The appointment of ombudsman in New Zealand is governed by the provision under

Act 10 of 1962. The ombudsman is considered as an officer of the Parliament and the
appointment is made through Governor-General on the recommendation of the House of
Representative. The ombudsman constitutional role in New Zealand is defined by a former
ombudsman in New Zealand who is Hon Sir Anand Satyanand. The former ombudsman in
New Zealand states that ombudsman role is one way to afford the ordinary citizen some kind
of hearing and redress in a simple inexpensive and direct fashion when allegedly dealt with
adversely by the actions of a large and remote government bureaucracy. The traditional
means of redress where the citizens being able to raise matters in Parliament through the
local Member of Parliament, or to obtain judgment through the courts or to energize the
Press had all proved to be less feasible than when originally envisaged.

In New Zealand, the difficulties to initiate a court proceeding against the government
and the different nature of the ombudsman’s jurisdiction shows that ombudsman are more
effective ways to challenge any misconduct or inefficiency of the government in certain
circumstances. The ombudsman has the ability to address a general administration issue on
the basis of the accumulation experience which rarely to be applied in during a court
proceeding. As the function of the ombudsman is to provide an alternative dispute resolution
with a lesser cost, the complainant who engaged with the ombudsman will have their
disputes issues to be immediately escalated to the Chief Executive of the public body
without any cost. Also, the ombudsman is function to investigate the complaint lodge by the
any complainant without the need of the complainant to put together the case against the
public body. The complainant would need to answer the question given by the ombudsman
in order for the ombudsman to identify whether the complaint is valid and require redress.

9
 As a conclusion, the function of Ombudsman in Malaysia is governed and subjected
to the Financial Service Act 2013. The extensive power of Ombudsman in Malaysia
currently limited to the Financial Ombudsman Scheme and has not been applied much as
other countries such as United Kingdom, Sweden and New Zealand. Malaysia is in a
process to provide a better service in which the Ombudsman bill will be tabled in 2022 to
improve the function of the Ombudsman.

10