Thursday, December 18, 2014

How can Indira Gandhi retrieve her child without IGP’s assistance?

Press Statement by M. Kula Segaran, Dap National Vice Chairman and MP for Ipoh Barat on17th December 2014 at Palace of Justice, Putra Jaya.
How can Indira Gandhi retrieve her child without IGP’s assistance? 

On 11th March 2010, the Ipoh High Court granted custody and control over the three children of Indira Gandhi. Prior to this decision, the father of the three children and then husband of Indira Gandhi had obtained a similar order from the Syariah Court. Notwithstanding this order, the husband Pathamanathan @Riduan failed to return the last child of the family to the mother thus forcing her to institute committal proceedings against the husband.

On 30th May 2014, the Ipoh High Court granted a warrant of arrest order commanding every police officer to apprehend Pathmanathan @Riduan and also an order to retrieve the last child under section 53 of the child Act.
From this order, the Inspector General of Police (IGP) being the police officer named above who had refused to enforce both the above orders. From this, the IGP has appealed to the court of Appeal.

Today, The Court of Appeal  made a majority decision . The Panel comprised Dato Abdul Aziz , Dato Haji Asmadi Bin Asnawi and Dato Tengku Maimun Binti Tuan Mat . Dato Tengku Maimun gave a dissenting judgement wherein she fully agreed with the High Court Judge Lee Siew Seng s decision.

The  Court of Appeal said among others:-
1)      that the IGP has discretion not to enforce the above orders as the orders are not of a public nature but a private family matter.
2) the bailiff of the court can assist in enforcing the order

The reasoning is most shocking of earthquake proportions in that it seems to have failed to appreciate that the IGP by the Police Act must and should enforce a court order without questioning its merits.
By saying that the IGP has a discretion in the court is sending a message that any civil servant can question a court order and need not adhere to it. This will bring a stand still on orders made by courts as they can be ignored by civil servants.

We need to be clear, that the IGP holds a public duty to do all things within the meaning of the Police Act. We would advice Indira Gandhi to pursue this matter to the highest court of the land to bring an end to this ambiguity and conundrum.

In presenting my argument, I said that India is without a remedy now. Justice Abdul Aziz said she can still proceed with the assistance of the bailiff of the High court. I said that as we are unable to locate the where about of the  Pathamanathan @ Riduan , how can anyone retrieve the child with the bailiff assistance. Only the IGP with state resources at hand can do so. To this the majority judges failed to agree with me.

The dissenting judge’s decision is that the mandamus order by Lee Swee Seng has not erred based on the facts of this case is the right and only approach Indira Gandhi has. Otherwise how can court bailiff locate a contemnor who is in hiding?

Lawyers for Indira Gandhi:  M. Kula Segaran, Aston Paiva and Selvam Nadarajah.
Lawyers for IGP:  Puan  Suzanah Atan and Shamshul.
Watching Brief: Philip Koh for The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST)
Andrew Khoo:  for Bar council
Goh Siew Ling: for all the women NGO group

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