The Malaysian Bar expressed regret with the
majority Court of Appeal decision in the M Indira Gandhi interfaith
custody battle which lifted a mandamus order compelling the
inspector-general of police to arrest her former husband and recover
their daughter.
The Bar's vice-president Steven Thiru asked whether a court bailiff has the resources to locate Indira's daughter.
The outcome of the decision, he said, is that the administration of justice would be reduced to chaos and disrepute if compliance with an order of court is dependent on the whims and fancies of the party to whom the order is directed.
“The order in this case has no room for any discretion and therefore, compliance with it by the police was mandatory.
“A mandamus order is appropriate to enforce a mandatory order of the court.
“It is further unrealistic to expect the court bailiff to locate the ex-husband and the child.
“The bailiff would not have the resources and the required information that the police possess, to detect and ascertain the whereabouts of the ex-husband and child.
“It is therefore unfair to deny Indira the mandatory order on the basis that she is first required to ‘exhaust all her avenues for relief’ through the court bailiff for the purposes of enforcing of the contempt orders,” he said in a statement yesterday.
Order compels public servant to perform duty
Thiru said the majority appellate court judgment failed to appreciate that the mandamus order was predicated on the administration of justice and the performance of duties by the police in aid of the administration of justice.
He explained a mandamus order is a prerogative relief that the High Court can grant in its supervisory jurisdiction.
“It is an order that is available to a private litigant for the purposes of compelling a public authority or a public servant to perform their duties.
“A mandamus order is granted when the court is satisfied that the public authority, or public servant has failed, refused or neglected to perform their duties.
“The view taken by the majority of the Court of Appeal that the matter was a private family law dispute was unduly blinkered and detached from the reality of the matter.
“In the result, the court has denied Indira (right) of a relief that could have led to the recovery of her daughter child in this prolonged dispute.”
In this case, he added the Ipoh High Court found Indira's ex-husband, Muhammad Ridhuan Abdullah in contempt of court for failing to return their daughter, Prasana Diksa, since 2009.
The court then ordered that the child to be handed over to Indira within a stipulated time period and that the police should help locate both the ex-husband and the child.
‘About role of police in administering justice’
These contempt orders were all made by the court in the contempt proceedings, Thiru said however, the ex-husband failed to hand over the child till this year.
Further, he said the police failed to comply with the order to locate Ridhuan and the child.
The mandamus order was granted against the inspector-general of police due to their inaction in locating the ex-husband and the child.
“The police failed to comply with a duty or obligation imposed on them by the court in the contempt proceedings with regard to the execution or enforcement of the contempt orders of the court.
“It was accordingly no longer a matter of private rights, but rather a serious matter concerning the administration of justice and the role of the police in the administration of justice,” he explained.
“It is now a matter that transcended the nature of the dispute between the litigants and impinged on the administration of justice, in the present case, in contempt proceedings. The mandamus order was therefore granted to uphold the administration of justice.
Moreover, Thiru said the significance of respecting the sanctity of court orders, which in this case was an order that was specifically directed at the police, is equally critical.
He added compliance with that part of the order cannot be a matter which is left to the discretion of a party before the court, which in this case is the police.
The Bar's vice-president Steven Thiru asked whether a court bailiff has the resources to locate Indira's daughter.
The outcome of the decision, he said, is that the administration of justice would be reduced to chaos and disrepute if compliance with an order of court is dependent on the whims and fancies of the party to whom the order is directed.
“The order in this case has no room for any discretion and therefore, compliance with it by the police was mandatory.“A mandamus order is appropriate to enforce a mandatory order of the court.
“It is further unrealistic to expect the court bailiff to locate the ex-husband and the child.
“The bailiff would not have the resources and the required information that the police possess, to detect and ascertain the whereabouts of the ex-husband and child.
“It is therefore unfair to deny Indira the mandatory order on the basis that she is first required to ‘exhaust all her avenues for relief’ through the court bailiff for the purposes of enforcing of the contempt orders,” he said in a statement yesterday.
Order compels public servant to perform duty
Thiru said the majority appellate court judgment failed to appreciate that the mandamus order was predicated on the administration of justice and the performance of duties by the police in aid of the administration of justice.
He explained a mandamus order is a prerogative relief that the High Court can grant in its supervisory jurisdiction.
“It is an order that is available to a private litigant for the purposes of compelling a public authority or a public servant to perform their duties.
“A mandamus order is granted when the court is satisfied that the public authority, or public servant has failed, refused or neglected to perform their duties.
“The view taken by the majority of the Court of Appeal that the matter was a private family law dispute was unduly blinkered and detached from the reality of the matter.
“In the result, the court has denied Indira (right) of a relief that could have led to the recovery of her daughter child in this prolonged dispute.”In this case, he added the Ipoh High Court found Indira's ex-husband, Muhammad Ridhuan Abdullah in contempt of court for failing to return their daughter, Prasana Diksa, since 2009.
The court then ordered that the child to be handed over to Indira within a stipulated time period and that the police should help locate both the ex-husband and the child.
‘About role of police in administering justice’
These contempt orders were all made by the court in the contempt proceedings, Thiru said however, the ex-husband failed to hand over the child till this year.
Further, he said the police failed to comply with the order to locate Ridhuan and the child.
The mandamus order was granted against the inspector-general of police due to their inaction in locating the ex-husband and the child.
“The police failed to comply with a duty or obligation imposed on them by the court in the contempt proceedings with regard to the execution or enforcement of the contempt orders of the court.
“It was accordingly no longer a matter of private rights, but rather a serious matter concerning the administration of justice and the role of the police in the administration of justice,” he explained.
“It is now a matter that transcended the nature of the dispute between the litigants and impinged on the administration of justice, in the present case, in contempt proceedings. The mandamus order was therefore granted to uphold the administration of justice.
Moreover, Thiru said the significance of respecting the sanctity of court orders, which in this case was an order that was specifically directed at the police, is equally critical.
He added compliance with that part of the order cannot be a matter which is left to the discretion of a party before the court, which in this case is the police.
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