Court ruling in Hindu mother’s case raises key concerns, say lawyers

by Pathma Subramaniam
The Malay Mail Online
December 19, 2014

KUALA LUMPUR, Dec 19 ― A Court of Appeal decision this week which indicated that police may ignore orders if it involves the private rather than the public sphere of life, may drive citizens to take matters in their own hands, lawyers have warned.

On Wednesday, the Court of Appeal ruled in favour of the government and rejected the Ipoh High Court’s order of mandamus to compel the Inspector-General of Police (IGP) recover M. Indira Gandhi’s six-year-old daughter citing the distinction of the role of the police in enforcing laws in the public sphere as opposed to private lives.

The mandamus order, issued in September, was essentially an instruction from the High Court to the top cop to carry out his statutory duty to find and return Indira’s six-year-old child Prasana Diksa and arrest her ex-husband Mohd Ridzuan Abdullah.

Lawyers, who had observed the matter at the appellate court, said that while the court’s ruling was specific to Indira’s case, its consequences may be far reaching.

“The court did not rule on custody but just on the way to enforce the order of custody, however, it will affect all other cases involving private remedy.

“This is dangerous because the underlying message to the public at large is that you have to find your own way to put the remedy into effect,” said Andrew Khoo, the Bar Council’s human rights committee co-chairman.

“You win a remedy but got no satisfaction from it… the court can’t just grant the remedy and not provide a way to exercise that right,” he told Malay Mail Online.

The Ipoh High Court had issued the mandamus after Mohd Ridzuan went into hiding following an arrest warrant issued by the court. However, the IGP, Datuk Seri Khalid Abu Bakar had said that the police were unable to enforce the court’s order as the authorities were caught between two conflicting jurisdictions: a custody order from the civil court which granted the custody of children to Indira, while the Shariah Court’s order which favoured Mohd Ridzuan.

Khalid, through the Attorney-General’s Chambers challenged the order of mandamus and the Court of Appeal upheld that the discretion of the top cop under the Police Act should not be enforced in such a manner.

“The order cannot be issued where only the right of an individual is taken into account,” said two of three judges, who presided over the matter yesterday, after which they said Indira court still hire a court bailiff to trace the child.

Khoo pointed out that the bailiff would also need the assistance of the police as the scope is limited including restrictions in trespassing into private property.

Lawyer Philip Koh Tong Ngee asserted marriage, or the dissolution of marriage, is not a private matter as it has to be registered under a federal legislation.

Koh said that the state has a vital interest in a marriage between a man and a woman and that is reason behind the legislation of the Law Reform (Marriage and Divorce) Act as well as the Child Act.

“The distinction made by the Court of Appeal may apply in theory but it is highly technical and the conclusion is perplexing given that marriage is not a private matter and given that Parliament has provided a whole framework for it,” said Koh, who held a watching brief for the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) yesterday.

Five years ago, Indira was separated from her daughter Prasana Diksa, then 11-months old toddler, when Mohd Ridzuan, who was also previously known as K. Pathmanathan, ran off with the child.

Mohd Ridzuan later unilaterally converted all their three children to Islam and obtained a custody order in the Shariah court for all three.

In the long drawn-out child custody battle, Indira won full custody of her three children in the Ipoh High Court in 2010, with the same civil court issuing a recovery order in her favour.

The High Court had also nullified the Shariah court’s custody order and subsequently issued the mandamus order compelling the IGP to act.

On May 30, the civil court also cited Mohd Ridzuan for contempt of its custody order and issued a warrant to arrest and jail him, unless he gave up the child that he had taken away in 2009.

Mohd Ridzuan’s bid to appeal against the High Court’s custody order in favour of Indira was previously dismissed in both the Court of Appeal and Federal Court.

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