Friday, June 27, 2014

A-G acting beyond authority in contentious custody battles, say lawyers

A-G acting beyond authority in contentious custody battles, say lawyers


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.

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