Monday, June 30, 2014

Indira files application to compel IGP

4:00PM Jun 30, 2014- Hafiz Yatim ( Malaysiakini) 

Indira files application to compel IGP 

Kindergarten teacher M Indira Gandhi has filed an application in the High Court in Ipoh today to compel Inspector-General of Police Khalid Abu Bakar to execute court's order to arrest her estranged Muslim convert husband, K Pathmanathan @ Muhd Ridhuan Abdullah.

The judicial review application was filed this afternoon following the order by High Court judge Lee Swee Seng that Muhd Ridhuan be arrested for not abiding by the May 30 decision to return their child, Prasana Diksa.

Indira named the IGP as the respondent.

The same court had also issued another order for the police and the Education Department to search for and return the six-year-old daughter to Indira (on the right).

Indira’s lawyer M Kulasegaran (left, in picture) said the IGP had initially wanted to get the children placed in welfare homes following the “middle path” solution Khalid took despite the High Court order.

This was followed by Perak police chief Acryl Sani Abdullah's Sani's statement that Perak police had been directed by the IGP to arrest Muhd Ridhuan.

However, Khalid (right) then made a turnaround on his statement and denied that police would arrest Indira’s former husband, that Perak police were only searching for Muhd Ridhuan to "monitor" him and to "ensure the child is safe".

“Indira filed a judicial review to seek an order of mandamus (order to compel) the IGP and police to find Mohd Ridhuan, failing which we will institute contempt proceedings,” Kulasegaran said.

Mother at a loss

Indira, Kulasegaran added, was at a loss following the uncertainty in the police action and this was why she was filing this application to compel the IGP to do what is required by law.

“Will she  and her family, including the brother and sister of Prasana Diksa, get to see her?” he asked.

“Indira is compelled to take this action to prevent lawlessness and for our fellow citizens to feel safe. It is hoped the court will give priority to this case. Law-abiding citizens need protection and guilty ones must be arrested,” Kulasegaran said in a statement.

The High Court has granted custody to Indira in its decision on May 30, when Justice Lee also declared that the civil court is superior to the syariah court.

Indira has been embroiled in this dispute since 2009, following Muhd Ridhuan's conversion to Islam, during which he also converted the three minor children.

Justice Lee last year also declared the conversion of the three children as null and void on grounds that the conversion by a single parent goes against the international norms.

Last Thursday, Attorney-General (AG) Abdul Gani Patail indicated the intention of the AG's Chambers to intervene in the interfaith custody cases of both Indira and S Deepa (right) in Seremban, Negeri Sembilan,

Today, the IGP obtained from the Seremban Syariah High Court an ex-parte stay of execution on the order compelling the police to assist in retrieving N Viran @ Izwan Abdullah's two children from Deepa.

Education Ministry must be transparent and accountable in Matriculation intake

Speech by M. Kula Segaran MP, DAP National Vice Chairman and MP for Ipoh Barat at Tamil Ceramah held in Paloh, Johore on June 29, 2014
Education Ministry must be transparent and accountable in Matriculation intake

The Education Ministry has announced that only 1148 Indian students were taken into Matriculation studies for this year. For the year 2012,  it was about 800 plus and 2013,  it was also 800 plus.

Matriculation is a one year programme while STPM is a two year course. Matriculation is fully funded and exams are conducted and examined internally. It is a known fact that it is easier to excel in matriculation examination compared to the STPM exams which are externally examined.

Initially, matriculation programme was exclusively only for the Bumiputeras in Malaysia. Just a few years ago, 10 % of the intake was opened to the non Malays.

On February 26 2012, Prime Minister Datuk Seri Najib Razak announced that the intake of Indian students at Matriculation colleges would be incrased from 559 to more than 1,500 for the 2012/2013 academic term.  Undoubtedly, this announcement done before the 2013 General Elections was to fish for Indian votes!

To obtain further Indians’ support, the Prime Minister also signed a MOU with HINDRAF specifying that the yearly intake for the Indian community was to be 2200. Thus, every year 2200 students should have been enrolled into matriculation.

Last year, I had posed a question to the Deputy Prime Minister in Parliament asking him to reveal the actual intake of Indian students into the Matriculation colleges in the country.

I was shocked and dumbfounded when Tan Sri Muhyiddin stated that the intake was 1800. He further said that the qualification to enter Matriculation College had been reduced.

If the entry requirement was reduced,  then why so many eligible and qualified Indian students have  failed to secure a place in matriculation?

Education Ministry must disclose the details of those who had been admitted to further their matriculation studies. The reluctance and failure to disclose the names of successful students further strengthens our doubt about the claim that a total of 1800 students were accepted.

To dispel all doubt, the Education Ministry must be prepared to be transparent and accountable on the issue of Matriculation intake.

We have been demanding that all successful students’ names and their Form 5 results d be posted on the Ministry’s website. But the Ministry has refused to do so. Why fear if there is nothing to hide?

Malaysia has achieved Merdeka for decades and the Prime Minister has talked so much about his I Malaysia concept. It is time that matriculation intake should be based on meritocracy and opened to all races

All citizens should enjoy equal places under the Malaysian sun. Failure to address the short comings in government policies will further cause brain drain in our country.

Sunday, June 29, 2014

Civil courts take precedence over shariah courts, says former judge

Civil courts take precedence over shariah courts, says former judge

The Malaysian Insider

Published: 29 June 2014

Civil courts take precedence over shariah courts by virtue of their creation under the Federal Constitution unlike the shariah court, which was established out of state law, a retired senior judge said, refuting the inspector-general of police’s contention that both courts were of equal status in his refusal to execute recovery orders from civil court in two interfaith child custody cases.

Former Federal Court judge Datuk Seri Gopal Sri Ram said shariah courts were subordinate to civil courts because they were enacted under state laws.

He said in the Malaysian legal system, the Constitution was the supreme law and laws passed by Parliament and state assemblies were subordinate to it.

He said the High Court of Malaya and the High Court of Sabah and Sarawak, the Court of Appeal and the Federal Court were established under the Constitution and not by an act of Parliament or a state enactment passed by a state assembly.

"Shariah courts cannot be ranked the same as the civil court as the religious courts are established by state laws.”

He said Parliament and state assemblies had no power to make laws which were in conflict with the Constitution.

Tan Sri Khalid Abu Bakar had said police would not enforce shariah and civil court orders arising from two interfaith custody battles in Ipoh and Seremban.

In both cases, the non-Muslim single mothers had obtained custody orders from the High Courts.
They had also obtained recovery orders to compel police to locate their former husbands who had converted to Islam and return their children.

However, Khalid refused to execute the recovery orders, contending that both courts were of equal status and that Article 121 (1A) stated the shariah court status was similar to the civil court.
Sri Ram said the cause of all the confusion was the refusal to recognise that Article 121 (1A) merely delineated jurisdiction matter.

"It means, where the shariah court has jurisdiction, the civil court will not exercise its function to administer justice," he said.

However, he said it was for the civil court to decide who should exercise jurisdiction.
Sri Ram said if a shariah court dealt with a matter not assigned to it by federal law or state enactments, then it was for the High Courts to intervene.

Shariah courts in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya are governed by a law passed by Parliament while religious courts in other states are governed by state enactments.
"So, if a written law states that a shariah court has no jurisdiction over non-Muslims but it acts otherwise, then the High Court is entitled to exercise its supervisory power to intervene."

Sri Ram said any attempt to displace Article 121 would amount to interference in the basic fabric of the Constitution.

"Article 4 on the supremacy of the Constitution is the home of the doctrine of the basis structure of the supreme law.”

The clause states that the Constitution is the supreme law of the Federation and any inconsistent law passed after Merdeka Day will be declared illegal.

S senior lawyer said only the Constitution vested judicial power in the civil court and not the shariah court.

"The IGP is confused about this issue," said the lawyer, who spoke on condition of anonymity.
The lawyer said the problem in the present interfaith conversion cases was the refusal of the police to act on the recovery orders issued by the High Court.

"There is no issue about two conflicting custody orders given by the shariah courts and High Court," he said.

The lawyer said there were also no rival orders to challenge the recovery orders.

"It is clear that the police have to enforce the recovery order issued by a competent civil court.”
The High Court had granted clerk S. Deepa custody of Sharmila and Mithran, who had been converted to Islam by her ex-husband last year without her knowledge.

The judge allowed Deepa's application as only the civil court had jurisdiction over the matter and provide the relief for custody and dissolution of the couple's civil marriage.

However, the ex-husband Izwan Abdullah abducted Mithran, saying it was for the child's "protection".

Deepa then obtained a recovery order from the High Court on May 21 to get police to search for Izwan and Mithran.

In M. Indira Gandhi’s case, her ex-husband, Muslim convert Mohd Rizduan Abdullah, has also yet to hand over their youngest daughter to her despite a 2010 High Court order awarding custody of their three children to the mother.

Ridzuan has held on to Prasana Diksa since April 2009.

The Shariah High Court in Ipoh had in 2009 given Ridzuan custody of the three children after he unilaterally converted them to Islam.

However, in July last year, the Ipoh High Court quashed the conversion of the children and ruled that the certificates of conversion were unconstitutional.

The court also found Ridzuan guilty of contempt of court for failing to return Prasana to Indira.
Indira had also obtained a recovery order and warrant of arrest against Ridzuan. – June 29, 2014.

Saturday, June 28, 2014

Comments by Indira Gandhi at Press Conference held in Ipoh on June 28, 2014

Comments by Indira Gandhi at Press Conference held in Ipoh on June 28, 2014

I read with great disappointment and grief the decision of the Attorney General (AG) to intervene in the family proceedings between Pathmanathan Krishnan and I as well as the decision by the Inspector General of Police (IGP) not to arrest Pathmanathan Krishnan and send him to prison for breaching a High Court custody order in 2010, when he abducted my daughter Prasana Diksa from me in 2009 and has till today failed to return her to me.

After I had successfully secured a committal order against Pathmanathan in the High Court last month, it is shocking and disappointing that till today, the Malaysian government still continues to drag its feet and is now refusing to obey the decision of the High Court to commit Pathmanathan to prison for contempt of court.

The Malaysian government has shown utter and complete disrespect for my child’s welfare, to the Judiciary and to me as a Malaysian mother. Which civilized or democratic government will ever do such a thing? The Malaysian Government should be ashamed of itself.

The government seems more concerned with its own political agenda rather than the welfare and wellbeing of its citizens. I now live in anguish and uncertainty over the fate of my daughter. My fight for her has been in vain. The High Court has made an order in vain and a man who has shown contempt for the Malaysian courts is allowed to roam free; unaccountable and blameless for his unforgivable actions.

Last 5 years been the most heart-breaking period of my life and this should be something no mother in Malaysia should ever have to go through.

I have not seen my daughter for the last 5 years. She was taken from me when she was only 11 months old and today she will be 6 years old. I have been deprived of my daughter and she has been deprived of her mother. I have missed the most valuable moments in my daughter’s life; when she began to walk, to talk and to ask questions about life.

I can only urge the AG to advise the IGP to obey the committal order by the High Court immediately - arrest Pathmanathan Krishnan and commit him to prison till he delivers Prasana Diksa to me!

If such justice is not carried out, then all hope is lost for all mothers in Malaysia and the AG and the IGP will be guilty for encouraging lawlessness in Malaysia, tearing families apart and, most importantly, destroying the life of my beloved daughter, Prasana Diksa.

Prime Minister has all but abandoned the 2009 Cabinet decision banning unilateral conversion of minors?

Press Conference Statement by M Kula Segaran, DAP National Vice Chairman and MP for Ipoh Bart in Ipoh on June 28, 2014

Prime Minister has all but abandoned the 2009 Cabinet decision banning unilateral conversion of minors? 

In 2009, Patmanathan without the knowledge of his wife Indira Gandhi converted into Islam and took the name Riduan Abdullah. 

Subsequently Riduan went further and unilaterally converted his three children (all minors) without the children’s presence and a certificate of conversion was issued by the Perak Islamic authorities.

Riduan also abducted the youngest child from the mother.

Today, after 5 long years of pain and sufferings and having obtained a Court order for the child to be returned to her, Indira’s agony and trauma are not yet over due to the inaction of the Inspector General of Police (IGP), the wrong advice of the Prime Minister and the wrong action of the Attorney General (AG).

The IGP Tan Sri Khalid has refused to enforce the committal order, the Prime Minister Datuk Najib has advised that the case be brought to the Federal court while the Attorney General ‎Tan Sri Abdul Gani Patail wants to apply to intervene in both the Civil and Syariah courts and suspend their orders on the police.

Indira’s predicament can be easily solved if the IGP will just enforce the committal order served on him. There is no need and justification for the AG to intervene.

The Prime Minister’s advice shows that he has yet to understand the pains and sufferings that Indira has gone through. Her legal battle started in 2009, how long more must she continue to suffer and be denied of having her youngest child returned to her? 

The Prime Minister must show his political courage and will in Indira’s case and interfaith custody matters.

Najib should firstly direct that the IGP carry out his duties professionally and enforce the committal order served on the Police.

He should secondly introduce the necessary law changes to put into effect the April 2009 Cabinet decision banning unilateral conversion of minors.

As a result of Indira’s issue, the Cabinet had in April 2009 decided to ban unilateral conversions of minors.  The then law Minister Datuk Seri Nazri announced in Parliament that a high level Cabinet Committee on inter faith issues was established under the leadership of Tan Sri Koh Su Koon, then a Minister in the Cabinet.  Further, he said necessary laws would be amended to settle the thorny issues relating to inter faith matters. The Government was thus acknowledging there are inadequacies in the law.   

The only directive issued by the Committee was that ‘children of the converts will be raised in the faith they were before the conversion” Being only a directive it had no bite. No one took it seriously.

It was reported that the Cabinet had in April this year formed a joint committee to help resolve issues among couples involved in religious conversion and child custody battles.
 The committee is co-chaired by Nancy and Datuk Seri Jamil Khir Baharom, another minister in the Prime Minister’s Department.
I had posed a parliamentary question on June 17 asking when the Government would implement the 2009 Cabinet decision banning unilateral conversion of minors. To my shock and horror, the written reply I got from Jamil Khir was drastically opposite to the 2009 Cabinet decision.

Jamil said that at this stage, the government has no intention to amend the necessary laws. He quoted the case of Sahmala Sathiyasslan Vs Dr Jeyaganseh C Mogarajah L Anor (2004) CLJ 416 and said that based on the decision, the consent of one parent is sufficient to (adalah memadai) in deciding a minor’s religion as the word parent in Article 12 (4) of the Federal Constitution is parent or guardian, and not parents or guardian that means either father or mother or guardian.

Jmail’s answer he has also contradicted the April 2009 Cabinet decision. Was his reply a decision reached by the joint committee?  If not, why has Nancy not made any clarification?

Or has the Cabinet made a U turn on the April 2009 decision banning the unilateral conversions of minors? If so, when did the Cabinet make such a U turn?

Till today, the Prime Minister has yet to break his silence on Jamil’s reply.

Datuk Najib cannot keep silent on this issue. He must inform the public if his Cabinet is still committed to the 2009 Cabinet decision on unilateral conversions of minors and if so, when will the necessary law changes be tabled in Parliament.

If his Cabinet has abandoned the 2009 decision, the Prime Minister must explain to the people the reasons for the U turn and how the government is going to resolve the interfaith custody matters.