Divorced wife’s right to maintenance under Islamic and civil law: possibility of harmonisation

The relationship between husband and wife creates certain rights and obligations that both of them are to enjoy and fulfill especially during the subsistence of marital relationship. Both Islamic and Civil law are in agreement that maintenance is one of the rights of the wife and one of the obligations of the husband. The right continues even after the wife is divorced but is subject to certain conditions and limitations under which the two laws differ. This paper seeks to examine especially the point of differences on the divorced wife's right to maintenance under both the Islamic and Civil Laws. The paper aims to critically investigate whether the Civil law on the right of a divorced wife to maintenance can be harmonized with Islamic law. For that purpose, the discussion will include the provisions of divorced wife rights to maintenance under Islamic law (the Shari’ah) as well as the provisions of the law that governs the Muslims in Malaysia. The discussion extends to the provision of Civil law that governs the non-Muslims particularly the Married Women and Children (Maintenance) Act (1950) and the Law Reform (Marriage and Divorce) Act 1976. The research adopts a qualitative methodology whereby analysis will be made based on materials in Library and statutes. Finally, this paper will provide suggestions on harmonization of Islamic and Civil law where relevant and possible

Comparative analysis of the statutory duties of waqf managers under the State Waqf Enactment And The Duties Of Trustees Under The Trustee Act 1949

The paper seeks to propose improvements in terms of the statutory duties of the Waqf Managers in Malaysia (SIRC and appointed third parties) under the Waqf Enactments through a comparative review of the Trustee Act 1949. Specific duties such as the duty to invest, duty to report and duty to monitor as provided under the Trustee Act 1949 were critically analysed to determine whether it could be replicated or integrated in the current Waqf laws. It was found that the Waqf enactments can indeed be improved and insights from Trustee Act 1949 would serve as valuable comprehensions on how the provisions can be enhanced as part of the effort in perfecting the Waqf laws in Malaysia

The million-dollar baby claims: rethinking birth injuries compensation in the digital age

The digital age has tremendously affected the practice of medicine. New discoveries and advanced machineries are revolutionizing the healthcare system at an accelerated pace, offering lifesaving innovations and improved operational efficiencies. Consequently, for severely disabled victims of birth injuries, digital healthcare has brought forth technological solutions that offer not only an improved quality of life, but also the ability to lengthen their lifespan. Various assistive technologies and rehabilitation robotics are introduced to aid their independence, bridging gaps between victims and society as well as minimizing the implications of disability. However, the availability of these groundbreaking treatments and issues in life expectancy has led to an exorbitant increase in the amount of compensation demanded by these severely disabled babies to millions of dollars. The notion of restorative justice which the Malaysian tort system upholds requires that the victim be “restored as much as possible to the position prior to the incident” has often been cited as justification in procuring these inflated amount of compensation from the medical providers. The financial burden imposed on the medical providers had led them to subsequently pass on these costs to the society in the form of increased medical prices. This phenomenon is rather worrying as the amount of compensation can escalate further with digital technology moving at a lightning speed and in the long run, the society will eventually suffer. Hence, this paper seeks to discuss the current compensation trend in Malaysia for severely disabled victims of birth injuries and the contemporary issues reflecting the interplay between the developing digital healthcare age and compensation, as well as the possible effects it would bring to the Malaysian healthcare system as a whole

No-fault compensation scheme for obstetric injuries: a viable alternative?

Obstetric injuries, especially neurological impairment involving damage to the brain such as cerebral palsy or mental retardation is often considered as the most tragic of all obstetric outcomes, as it usually results in permanent disabilities and malformations. The lifelong damage not only denies the victims of physical freedom, but also poses significant psychosocial and emotional challenges to the inflicted children and their families. Obstetric injuries which occur in the early years of the victim’s life prejudice the victim’s quality of life by depriving the victim of ‘years of enjoyment, independence and productivity, and imposing years of suffering, debility and dependency’.Caring for a child inflicted with obstetric injury also involves a huge economic commitment, as they require comprehensive medical rehabilitation and lifelong assistance and care. The expensive cost turns out to be a substantial burden on the family where majority of affected families find difficulty in making financial ends meet, and consequently this burden becomes detrimental to both their physical and psychological well-being.3 This often triggers the search for substandard care on the part of the medical provider in charge to have them assume part of the cost,4 and malpractice litigation is seen as a platform for justification and to some extent alleviates the emotional pain associated with the incident

Medical Negligence Disputes in Malaysia: Resolving through Hazards of Litigation or through Community Responsibilities?

Medical negligence disputes in Malaysia are mainly resolved through litigation by using the tort system. The tort system, being adversarial in nature has subjected parties to litigation hazards such as delay, excessive costs and uncertainty of outcome. The dissatisfaction of the tort system in compensating medically injured victims has created various alternatives to litigation. Amongst them is the implementation of a no-fault compensation system which would allow compensation to be given without the need of proving fault on the medical personnel. Instead, the community now bears the burden of compensating and at the end, promotes collective responsibility. For Malaysia, introducing a no-fault system would provide a tempting solution and may ultimately, achieve justice for the medical injured victims. Nevertheless, such drastic change requires a great deal of consideration to determine the suitability of the system and whether or not it will eventually cater for the needs of the Malaysian populatio

Finding a comprehensive dispute resolution mechanism for compensating obstetric injuries in Malaysia: Issues and challenges

Victims of obstetric injuries usually suffer life-long disabilities that tend to deprive them of years of enjoyment in life, independence and productivity. As these injuries occur on the victims early in life, the costs of medical and nursing care are usually enormous. This subsequently imposes stressful and heavy burden on the family members who will resort to litigation as means of procuring monetary compensation. However, proving that such injuries were attributable to negligence is not an easy task and the affected parties are usually subjected to various hazards of litigation including excessive cost, delays and inconsistencies of outcome. The many hurdles of pursuing a medical negligence suit in court has discouraged victims of obstetric injuries from obtaining adequate compensation. The ‘name, blame and shame’ culture in litigation tend to destroy the relationship of trust and confidence between a doctor and his patient and this ultimately, hinders any possibilities of amicable settlements and future rehabilitation. The quality of healthcare system may thus, be compromised as doctors become more and more defensive in their practice and constantly, submitting themselves to the ‘conspiracy of silence.’ Further, as the premium for medical indemnity insurance for obstetricians escalate, many obstetricians tend to leave the practice leading to reduced availability of obstetric care. Hence, the inherent difficulties in establishing negligence and the hazards of litigation have triggered the move by many jurisdictions to find alternative methods in compensating for birth injuries. Presently, in Malaysia, several incentives have been made to encourage affected parties to avoid litigation in gaining compensation for birth injuries. This includes the creation of several platforms for the affected parties to channel their complaints as well as encouraging out of court settlements through mediation, arbitration and the payment of ex gratia. However, the absence of any specific laws governing the practice of ex gratia poses a threat of unjust interchanges between the affected parties and the withdrawal of cases in exchange of such payment deters proper disclosure of adverse events. Thus, it is imperative that a comprehensive dispute resolution mechanism for obstetric cases is introduced in Malaysia, which is capable of delivering timely as well as adequate compensation to victims of obstetric injuries in a less adversarial manner and at the same time, ensuring that the quality of healthcare is not compromised in any aspects

The causes and implications of obstetric malpractice

Obstetrics and Gynaecology (O & G) are among the specialties at high risk of malpractice claims. In particular, obstetric malpractice attracts high incidence of claims as birth injuries are usually serious and devastating. The resulting disabilities and malformation from the injuries tend to be life-long and victims are deprived of years of enjoyment in life, independence and productivity. As these injuries occur on the victims early in life, the costs of medical care are usually enormous. As this imposes stressful and heavy burden on the family members, they tend to resort to litigation as means of procuring monetary compensation. The highest numbers of medical negligence cases in Malaysia involve obstetric injuries and six to seven-figure court awards are now becoming the trend for compensating obstetric malpractice victims. However, proving obstetric malpractice is not an easy task with years of litigation, which eventually may not provide victims with monetary compensation if unsuccessful. Further, the increase in obstetric litigation has triggered higher premium for medical indemnity insurance causing many doctors to leave the subspecialty. Even though the doctor at the end may not be found guilty but the trauma of being sued caused them to suffer difficulties in returning to their work

Developing a holistic approach for medical injuries compensation: the strength of community responsibilities

The efficiency and relevancy of the tort system in offering adequate redress for victims of medical injuries has become a global concern. The tort system’s emphasis on fault, personal blame and individual responsibility has not been successful in functioning as a mechanism that is able to enhance patient safety as a whole, as it triggers negative implications such as inadequate monetary compensation, overburdened healthcare providers, and consequently, ineffective deterrence towards neglectful conduct. The flaws in the tort system had prompted the move from a system that is based on individual responsibility towards a no-fault system that is based on collective responsibilities. Founded on the ideals of distributive justice, the no-fault system shifts the focus away from individual fault and places more emphasis on victim’s rehabilitation. It further leads to an establishment of a systematic injury prevention system by enhancing co-operative community support as well as educational reform. The attributes of the no-fault system, is seen to be in line with the Islamic system of diyah, which accentuates the role of the community as central to the administration of justice, and places mutual responsibility to provide assistance for victims of medical injuries within the community. The system of diyah further represents a holistic method of economic empowerment which enables the setup of a multidimensional welfare system in caring for the disadvantaged in the community. The strength of community responsibilities should not be overlooked as it has the power to be a central driving force towards a good healthcare system and a prosperous society

Incorporating the salient principles of Diyah in constructing a workable no-fault compensation system for medical injuries

The prevailing trend amongst many jurisdictions around the globe has moved towards adopting amicable systems in compensating victims of medical injuries. One of the main systems which have been widely debated and scrutinised on is the no-fault compensation system. In adopting this system, victims of medical injuries no longer require to prove ‘fault’ and therefore, negligence on the part of the medical provider. The fact that these victims have suffered injuries after seeking medical treatment triggers the system to automatically disburse fix levels of fund to compensate for the losses that they have suffered. The no-fault compensation system is thus, motivated by the principle of ‘distributive justice’, which highlights the role of society and community’s responsibilities. The basic features of a no-fault compensation system for medical injuries are therefore comparatively similar to the system of Diyah, whether in terms of principles as well as in its operation. While many studies on legal theory treat the system of Diyah as part of punishment in the realm of criminal law, in reality, the system of Diyah acts as a method of economic empowerment enabling the setup of a multidimensional welfare system in caring for the disadvantaged in the community. These shared values and similarities in principles and operation will be able to facilitate the harmonization between the two systems in an effort towards designing an ideal no-fault compensation system for medical injuries, which not only adheres to the Shariah, but suitable to be implemented in various local and international circumstances. Nevertheless, contemporary interpretation would be required to ensure that the dynamics of this Islamic compensation system is appropriately embraced in the age of globalisation