Thursday, September 18, 2014

In all sense of fairness and justice, the AG should discontinue the IGP’s appeal to Court of Appeal

Media statement by M. Kula Segaran , MP for Ipoh Barat and DAP National Vice Chairman in Ipoh on 18th September 2014

In all sense of fairness and justice,  the AG should discontinue the IGP’s appeal to Court of Appeal

Last Friday at Ipoh High Court, Indira Gandhi in her application obtained an order of mandamus against the Inspector General of Police (IGP) who refuses to arrest and retrieve Prasana Diksa, the youngest daughter of the family and arrest the ex-husband Patmanathan Krishnan for being in contempt of court.

The Attronet Gneeral ( AG ) has on Monday served on our law firm a Notice of Appeal by the IGP against the above order to the Court of Appeal.

Although all parties have an inherent right to appeal against a decision of the court, this opportunity must be pursued prudently and with public interest in mind by the AG.

I would think it would be both prudent and wise for the AG to decline to appeal to the Court of Appeal. If the AG does not proceed with the appeal , it would do justice to Indira as her husband has yet to purge his contempt of Court and Prasana Diksa is yet to be found.

An appeal will only impose unnecessary mental torture and cause much anguish to Indira Gandhi and to her other children. Public interest would dictate that all court orders and warrants of arrest must be obeyed without question and it is in the welfare of Prasana Diksa for her to be reunited with her mother and her other siblings.
Further, an appeal only confirms that the AG, as the principal lawyer of the Government of the day, agrees and feels that what the IGP is doing is correct and right. Is this truly the case?

The AG should realize he advises the PM and cabinet members on all legal matters as per Article 145(2) of the Federal Constitution.

In my view , the AG should have advised the IGP to execute the orders made by the High Court,  namely to arrest Patmanathan Krishnan and to recover Prasana Diksa.
Is the Prime Minister and the Minister of Home Affairs going along and agreeing with the AG and the IGP?

By appealing, the AG is sending a message to the IGP and other public servants that orders of Courts are open to question despite conclusive determination by the Courts. All decisions of the Court can now be open to question by the IGP and every police officer. The Rule of Law becomes an illusion in Malaysia.

The AG and the IGP should not delay this matter by further appealing to higher courts. The husband has no further appeals pending. He has exhausted all legal avenues. What is still outstanding on his part is to purge his contempt. A refusal to arrest him only sustains the false proposition that orders of the Court can be disregarded with impunity.

In the case against the IGP, the decision of the Ipoh High Court is very sound and comes after mature deliberation of the matter by the trial Judge Lee Swee Seng. His Lordship said among other things:-

“While we may pontificate and propound on the legal principles and precepts, the child grows older with the passage of time by the day, the weeks, the months and the years. The appeal if successful cannot prove to be nugatory as all that happens would be that the child be returned to the father with mother having reasonable access.

We must not forget to put a human face to the law and here it is a case of a mother having to wait for 5 years to see the child of her womb”

Matters regarding parental abduction by converting spouses cannot be resolved if the AG continues to lack the political will to see that the Rule of Law prevails and no injustice is caused to any particular spouse or member of any minority community in Malaysia.

The AG must consider this dispute from a human perspective and consider the 5 years of anguish Indira Gandhi has had to go through. She filed her case in 2009 and it still remains unresolved till this day. The final stroke is the return of the child. Be reasonable. Be fair.  To further torment the family with appeals will benefit no one. Our national ethos remains clear “Keluhuran Perlembagaan, Kedaulatan Undang-Undang”.

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