Thursday, July 24, 2014

Judges in custody case pull out of AG's intervene bid

11:00AM Jul 24, 2014 --Hafiz Yatim ( Malaysiakini) 

Judges in custody case pull out of AG's intervene bid

The hearing of the attorney-general's  application to be an intervener in the child custody cases of S Deepa and M Indira Gandhi's was deferred by the Court of Appeal today after two judges recused themselves.

This follows K Shanmuga, representing both Deepa and Indira Gandhi, had inquired whether Justice Mohd Zawawi Mohd Salleh was comfortable in hearing the matter as he once headed the Syariah Advisory Division in the AG's Chambers which discussed the amendment of several existing laws pertaining inter-faith custody cases like the R Subashini matter, before becoming a judge.

Justice Umi Kalthum then asked if her presence on the bench would objected to as well, since she was the head of the civil division of the AG Chambers at that time.

To this, Shanmuga left it to Justice Umi Kalthum to decide, bearing in mind the post she was holding then.

"I apologise for raising the matter now, as I only discovered this (the composition of the bench) today," the lawyer said.

However, senior federal counsel Suzana Atan, for the AG's Chambers, objected, arguing that the matter was just an application to intervene and not a proper appeal hearing.

After confiding with both Justice Zawawi and Justice Umi Kalthum, Justice Linton Albert, who is heading the bench, said the two decided to recuse themselves in the interest of justice.

"Are you comfortable with me on the bench?" asked Linton, to which Shanmuga replied in the affirmative.

The Court of Appeal then fixed Sept 10 to hear the AG's application to be intervener in both the cases.

Also present was Ipoh Barat MP M Kulasegaran who also appeared for Indira Gandhi, along with lawyers Joanne Leong for Deepa and Aston Paiva (who is representing both with Shanmuga).

Lawyer Faiz Fadhil appeared for N Viran @ Izwan Abdullah, S Deepa's former husband.

Amendments to existing legislation

Outside court, Shanmuga told reporters that between 2007 and 2009, several senior officers in the AGC were involved in the amendments of existing legislation regarding unilateral conversion following the Subashini case which involved similar circumstances.

“A draft of the amendments was presented to the Council of Rulers in 2009, but we have not heard of it since,” he said.

Among the laws which were proposed to be amended included the Law Reform (Marriage and Divorce) Act 1976, Administration of Islamic Law (Federal Territories) Act 1993 and Islamic Family Law (Federal Territories) Act 1984.

Kulasegaran (left) said it was indeed tabled (to the rulers) and he had raised the matter up in Parliament in 2009 to know of its development but to no avail.

The Cabinet, he said had since come-up with a stand against unilateral conversions in 2009 but the laws have not been amended after that to reflect this.

This was also reiterated by Tourism Minister Nazri Abdul Aziz, once the de-facto law minister, last year.

“Now we have the joint committee on this co-chaired by Minister in the Prime Minister's Department Jamil Khir Baharom, which has said otherwise (that unilateral conversion is allowed).

This, he said, resulted in inter-faith dispute cases to continue since then.

However, Kulasegaran said tomorrow the Ipoh High Court will deliver its decision whether to grant permission for judicial review against the Inspector-General of Police Khalid Abu Bakar, to compel the police to retrieve Indira Gandhi's youngest child Prasana Diksa.

The AG is applying to intervene in both cases following conflicting orders by the Syariah High Court and the civil High Court wanting the police to enforce the recovery of children in inter-faith disputes.

WAO will engage with AGC

Women Aid Organisation (WAO) executive director, Ivy Josiah said although there is no development in the amendment of the laws, it will still engage with the Attorney General Chambers to find a resolution to this dispute.

The WAO is one of the women’s groups holding a watching brief in this case

“This will not stop us as an interested party. We will continue to hold dialogues to resolve this matter which affects all women.

“We have seen Deepa and Indira going up and down the courts seeking resolution, following the unilateral conversions of their children by the converting husband. They are doing this for the love of their children and wanting to be with them," said Josiah (right).

Sisters in Islam executive director, Ratna Osman, another women's group holding a watching brief, said Islam does not allow such injustice.

“The husband should discuss with spouse on the question of conversion and not take the children like that,” she added

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