Sunday 27 November 2016

Sarawak's outdated Adoption Ordinance, Administration of Estates Ordinance need to be updated and amended



Irene Mary Chang Oi Lin (Bukit Assek)
Outdated Legislations
Tuan Speaker, I also take this opportunity to bring to the attention of the State Government a few pieces of legislation which need review and amendment in order to keep abreast with the needs of the people. It is said that Law is a living thing. It is not set in stone. And as with all living things, the Legislative has to continually make sure that the law governing the people stays relevant.
 In Sarawak, the adopted children would have the Adoption Certificate with the word “adopted child” stated on them. This is unsatisfactory because it ignores the realities of life and the emotive elements of both the adopted children and adoptive parents.- Irene Mary Chang Oi Lin

Adoption Ordinance
Nothing can be more shattering for a child than to reach the age of understanding only to discover that he/she was not a biological child of the parents who had nurtured him from young.

I know for a fact that this issue had been raised in this august House in 2012 by my predecessor, Mr Wong Ho Leng. 4 years have gone by and yet the State Government has not even considered the changes that need to be made in order to protect the emotional growth and well-being of our young ones who have the misfortune of being put up for adoption by their own biological parents.

I am therefore duty-bound to raise this issue again and ask the Government to amend the Adoption Ordinance in Sarawak. The Adoption Ordinance in Sarawak is different from its counterpart in WM, the Adoption Act.

 In Sarawak, the adopted children would have the Adoption Certificate with the word “adopted child” stated on them. This is unsatisfactory because it ignores the realities of life and the emotive elements of both the adopted children and adoptive parents. In West Malaysia, under the Adoption Act, the Registrar-General of Births will ensure that the words denoting the adoption do not appear in the Birth Certificates.

The omission of such words as “adopted child” in the birth certificate is considered necessary to prevent the possibility that the knowledge of the fact of being adopted would have an adverse psychological effect on an adopted child who is yet unprepared to learn of his actual background or status.

 In West Malaysia, a special register is opened for the adopted children, but the adopted children will not know about their actual background or status. The adopted children will carry the family name of the adoptive parents.

A student will inevitably produce his birth certificate to the school. We have come across students being mocked or laughed at by their friends and subsequently became withdrawn because their so called parents who have nurtured and raised them are not their true parents.

We can't blame young students for what they did, but sometimes, even teachers also show their insensitive side to the fact of adoption by disclosing this fact. It is easy to find out the truth in any event, because adopted children need to produce their birth certificates which would not show their parents.

They will also produce the Adoption Certificate which discloses everything. It is time that we become sensitive to both the adoptive parents and the adopted children. Many parents fear the psychological trauma their children may suffer should they be untimely informed that they are adopted.

At the same time, it is not fair for the child to be branded as being adopted all his life, as most adopted children do not want to know about their past.
We should amend the Adoption Ordinance, to bring it in line with the Adoption Act, so that the birth certificates do not show the fact of adoption. Those parents in possession of the adoption certificates should be allowed to submit their applications to the Registrar-General of Births for a replacement birth certificates.

Administration of Estates Ordinance

In the first meeting of this session, Honourable Member for Kota Sentosa had brought to the attention of this august House of the need to amend Section 8 of the Sarawak Administration of Estates Ordinance.

Section 8 states: The following persons, if of full age and of sound mind, are entitled in the order stated to letters of administration to a deceased’s person’s estate:-
(a) the deceased’s widower;
(b) the male heirs of the deceased;
(c) the deceased’s father;
(d) the brother or brothers of the whole blood of the deceased;
 (e) the deceased’s widow (or primary widow if more than one);
(f) the deceased’s nearest male relative;
(g) the deceased’s nearest female relative;
(h) any creditor of the deceased.

If ever there is a piece of legislation which expounds clearly the supposedly superiority of men over women, this is the legislation. Under the intestacy law in Sarawak, when a man dies, the widow would only be the 4th in line of priority after her adult sons, her father-in-law and brothers-in-law to apply for the Letters of Administration.

This might be acceptable 40 years ago when a lot of women were illiterate. Needless to say, this line of thinking cannot stand in this day and age and I don’t think I need to say too much about this, seeing that the Right Honourable Chief Minister has professed often enough that he would do all he could to raise the status of women in the State, as long as we could bring it to his attention.

We did during the first meeting but nothing has been done yet, so here we are again. However, let me share that as a legal practitioner, this particular section has given rise to many contentions between widows and in-laws.

Especially young widows - because the possibility of a younger widow remarrying is always higher, the family members of the late husband would inevitably be concerned that the estate of the deceased might end up in the hands of someone outside the family.

To a certain extent, this is a valid concern, especially for landed properties passed down to the deceased from his own extended family. However, in most cases, landed properties acquired by couples are usually from their own sweat and labour from over the years together.

It is therefore most unfair, that at the time when a widow would be grieving over the loss of her husband, that in-laws should seek to take control over the estate of the deceased by resorting to Section 8.

Of course, as legal practitioners, we always advise people to make a will to resolve this potentially thorny issue – but in many a case, we come against superstitious people who do not believe in preparing a will lest something bad would happen to them.
So, Tuan Speaker, I urge the State  Government to amend this piece of out-dated and male chauvinistic legislation to remove possible contentions between families.


Civil Law Act 1956

The last one is the Civil Law Act, 1956. Though this is a Federal legislation, it is time that our State Government presses the Federal Government for a review and an amendment of the Civil Law Act 1956.

Under the Act, one’s life, if unfortunate enough to meet with a fatal accident, costs just RM10,000.00 of bereavement to the spouse or to the parents, if a minor and unmarried.

That is the statutory award under Section 7(3B) and this sum has not been reviewed since 1984 when the Civil Law (Amendment) Act 1984 had fixed the figure. Tuan Speaker, the bereavement award is set to compensate for the grief and sorrow that follows after losing a spouse or a child from the reckless or negligent act of another.

It acknowledges that society places a strong emotional attachment to that heartache from losing a loved one and bereavement damages acknowledge what has happened and tries to recompense somewhat.

Though in reality, no amount of compensation could ever adequately compensate the grief caused by the loss of a loved one, the figure of RM10,000.00 has for a long time, greatly diminished in value due to inflation and the steep rise in the cost of living and other factors.

What is RM10,000.00 in this present day and age? What can it buy? Maybe the cost of a better quality casket. And yet, this is the value placed by the Government of the day on the cost of bereavement.

 In all fairness, it must be said that the Civil Law Amendment Act very closely mirrored the major changes introduced in the United Kingdom in 1982. Under their UK Administration of Justice Act 1982 (‘the AJA’), the maximum award for bereavement damages has increased over a period of time. 1982 - £3,500 1991 - £7,500 2002 - £10,000 2008 - £11,800 2013 - £12,980

Therefore, over a span of 34 years, in UK, the award has more than tripled. And yet it is still arguable that the increment is still not on par with the current standard of living.

Meanwhile, for us here, we are still stagnant at RM10,000.00 since 1984. And this is not taking into account the current equivalent of £12,980 is RM70,255.00. Another relevant section which needs urgent review is that the bereavement award is only available to the spouse and if the accident victim is a minor and unmarried, then to the parents.

What of the children of the victims? What of the parents when one is still unmarried 58 at the age of 30? What of the next of kin when there is no more parents or spouse alive to be entitled to the bereavement award?

Is the bereavement of these loved ones not even worth a mention and an acknowledgment? Another point that needs to be taken care of is Section 7(3)(iv)(a) – where a person deceased has attained the age of 55 years at the time of his death, his estate can no longer claim for loss of earnings for any period after his death.

Tuan Speaker, woe to the families of those who have attained the age of 55, still sat in high office, earned a salary within the top income bracket but had the misfortune to meet with an accident which claimed his life at the age of 56.

 In 2012, the retirement age for civil servants was raised from 58 to 60. The move is in line with the recognition that after 58, most people are still at their prime of life with sufficient experience of life under their belts and are making positive contributions to our society.

Think – of some of our Honourable Members and the top Government civil servants in this august House. I believe that there are at least one quarter (¼) of us who have reached or at least nearing 55 years of age and I believe that each of you believe that you still have contributions to make to our society and are not ready yet to play doting “stay-at-home” grandparents.

So in the case above, if that person (A) had been a civil servant, he was still not due to retire for 4 more years. And yet our law tells us that his estate is not entitled to take into account the earnings he could still make from 56 to 60 years old in a job guaranteed by his employer, the Government, should his life not being untimely cut short. A review and amendment of this Act and Ordinance is more than due. -November 23, 2016

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