Adjective Law Undermining the Substantive Law (The Hague Convention on the Child Abduction)

6 Pages Posted: 12 Jun 2012

See all articles by Ijaz Ali Chishti

Ijaz Ali Chishti

Supreme Court of Pakistan; Postdoc Scholar University of Portsmouth, UK

Ataullah Khan Mahmood

affiliation not provided to SSRN

Date Written: June 12, 2012

Abstract

The convention, namely, “Convention on the Civil Aspect of international Child Abduction” falls under the subject of private international law which deals with the disputes of individuals residing in the jurisdiction of various countries. The set purpose of the Convention is to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedure to ensure their prompt return to the state of their habitual residence as well as to secure protection of the right of access. The main thrust of this Convention is to provide procedure designed to bring about the prompt return of the cross-border removed or retained children to the countries of their habitual residence, i.e., the state/country in which the child was habitually residing immediately before his removal or retention.

The court has been obligated to order the return of the child forthwith if the period of his wrongful removal or retention is less than one year. However, return may be refused if it is not permitted by the fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms. The Convention requires that the return order is not the determination of custody of the child. It is simply an order to return the child and the court has further been restrained from determining the case on the merits of the custody issue. Thus, it deals with the adjective law only.

The proceedings on the Convention concluded 25 October 1980 at Hague and the Convention entered into force between the signatory nations on 1 December 1983. So far 87 countries have ratified it, including only two Muslim countries, i.e., Turkey and Malaysia. Pakistan is also among those countries which have not yet ratified it, however, a rigorous campaign has been launched by some non-governmental organisations under the auspices of pro-convention countries. In Pakistani perspective, the prevailing norm is that of dualism which means any convention or treaty even ratified by the Executive cannot be enforced unless and until the same is enacted as a law by the legislature. This principle is based upon the constitutional command directing that it the parliament which shall have the exclusive powers to make laws and fortified by dictum of the constitutional courts of Pakistan in different cases. This practice is a legacy of the British tradition elaborated by Lord Atkin in a case stating therein that within the British Empire there is a well established rule that the making of a treaty is an executive act while the performance of the obligations, if it entails alteration of the existing domestic law requires legislative action. The stipulations of the treaty do not, by virtue of the treaty alone, have the force of law. (If) the government of the day decides to incur the obligation of a treaty which involves alteration of law they have to run the risk of obtaining the assent of parliament to the necessary statute or statutes.

Suggested Citation

Chishti, Ijaz Ali and Mahmood, Ataullah Khan, Adjective Law Undermining the Substantive Law (The Hague Convention on the Child Abduction) (June 12, 2012). Available at SSRN: https://ssrn.com/abstract=2083081 or http://dx.doi.org/10.2139/ssrn.2083081

Ijaz Ali Chishti (Contact Author)

Supreme Court of Pakistan ( email )

Law & Justice Commission of Pakistan, Supreme Cour
Islamabad, Islamabad 44000
Pakistan

Postdoc Scholar University of Portsmouth, UK ( email )

Portsmouth
United Kingdom
0092 333 5570628 (Phone)

Ataullah Khan Mahmood

affiliation not provided to SSRN

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