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Outdated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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