A-G
acting beyond authority in contentious custody battles, say lawyers
BY V. ANBALAGAN, ASSISTANT NEWS
EDITOR
The Malaysian Insider
Published: 26 June 2014
Attorney-General (A-G) Tan Sri Abdul
Gani Patail has no authority under the law to intervene in the two
controversial interfaith custody cases, even if they were of public interest,
legal experts said today.
M. Kula Segaran, who is a lawyer and
also the Ipoh Barat MP, said these cases were started as a private action by
Hindu wives against their husbands who had converted to Islam.
"The A-G has no business to
interfere over private matters, although it has a public interest
element," he told The Malaysian Insider.
Kula Segaran said Gani's duty, who
is also the public prosecutor, was governed by written laws.
He said under Article 145 (3) of the
Federal Constitution, the A-G shall exercise power to institute, conduct or
discontinue any proceedings for criminal offence in a civil court but not
before a shariah court, native court or court martial.
Similarly, for civil cases, he has
to follow procedures set in the Government Proceedings Act.
He said it was the Inspector-General
of Police Tan Sri Khalid Abu Bakar who could intervene in the proceedings since
the mothers had obtained recovery orders to compel police to locate their
ex-husbands and return the children.
"At best, Gani could appear or
send a Federal Counsel to represent Khalid in court proceedings." he said.
Kula Segaran, who is a counsel
appearing for kindergarten teacher M. Indira Gandhi, said this in response
Gani's statement that his chambers would be applying to intervene in both
cases.
Gani said they would also apply to
have the court orders on the police suspended as both cases – in Seremban and
Ipoh – have become cases of public interests which touched on religious
sensitivities and have the potential to threaten public order.
"The department will apply to
intervene in the proceedings of both cases in the Court of Appeal and High
Court and will also apply for the suspension of the court orders by the civil
and Shariah courts to the police," he said this evening.
In support of Kula Segaran, lawyer
Edmund Bon said he did not see any ground for Gani to intervene as
these disputes were between two private people.
"At this point of time, the
police must execute the High Court orders until and and less set aside by the
Court of Appeal," he added.
He said Khalid had to take steps to
be intervener as the order was for him to locate the fathers and secure the
children.
On April 7, High Court judge Datuk
Zabariah Mohd Yusof granted S. Deepa custody of Sharmila and Mithran, both of
whom had been converted to Islam by her husband last year without her
knowledge.
The judge allowed Deepa's
application as the civil court had jurisdiction over the matter and provide the
relief for custody and dissolution of the couple's marriage.
Two days later, Izwan abducted
Mithran, saying it was for the child's "protection".
She then obtained a recovery order
from the High Court on May 21 to get police to search for Izwan Abdullah and
Mithran.
In the Indira Gandhi 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 when she was 11 months old.
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, in a landmark ruling by judge Lee Swee Seng, quashed the
certificates of conversion of the three children and ruled that the
certificates were null and void because they were unconstitutional.
Last month, the court also issued an
order to arrest Ridzuan but police have yet to act on it.
Khalid has refused to comply with
the orders from the civil court, saying that both courts were of the same
standing. – June 26, 2014.
Comments
Post a Comment