Ruling sets bad precedent as civil servants will defy court orders, says MP

A court ruling which held that police have the discretion to enforce a court order in an interfaith custody battle sends a wrong signal to civil servants, a lawmaker said.

Ipoh Barat MP M. Kulasegaran said this line of reasoning was most shocking as the law enforcement agency was expected to enforce a court order without questioning its merits.

"By saying that the Inspector-General of Police and the police have the discretion, it is sending a message that any civil servant need not adhere to orders of the judiciary," he said in a statement.

Kulasegaran said such a judicial pronouncement would bring the wheels of justice to a standstill as civil servants would go unpunished for ignoring orders made by competent courts.

He said this in response to the majority ruling today which set aside an order obtained by kindergarten teacher M. Indira Gandhi last September.

The High Court had issued a mandamus order to compel the police to arrest her former husband Muhammad Riduan Abdullah, a Muslim convert and locate her daughter, Prasana Diksa, 6.

Judge Datuk Abdul Aziz Abdul Rahim, in allowing the appeal by Tan Sri Khalid Abu Bakar, said the court could not give effect to the order in a private dispute.

"The ex-wife could only enlist the assistance of court bailiff to locate the husband in order to get back the child," he said.

Concurring with Aziz was Datuk Ahmadi Asnawi.

The dissenting judge, Datuk Tengku Maimun Tuan Mat, who upheld High Court judge Lee Swee Seng's decision, said the trial judge had not erred and the mandamus order was appropriate.

Kulasegaran, who also appeared for Indira with lawyers Aston Paiva and N. Selvam, said it must be made clear that the IGP holds a public duty to do all things within the meaning of the Police Act.

"We will advise Indira to pursue this matter to the Federal Court to bring an end to this ambiguity and conundrum," he added.

Kulasegaran said it was impossible for his client to locate the child, believed to be in Kelantan, without police assistance.

In 2009, the shariah court in Ipoh granted Riduan, who was formerly known as K. Pathmanathan, the custody of his three children, Tevin Darsiny, 17, Karan Dinish, 16, and Prasana Diksa after he unilaterally converted them to Islam.

The following year, the High Court in Ipoh granted Indira full custody of her three children and Riduan was ordered to return Prasana Diksa to Indira.

In July last year, Lee also quashed the conversion of the children and ruled that the certificates of conversion were unconstitutional.

On May 30 this year, Lee cited Riduan for contempt and issued a warrant of arrest against him after he repeatedly failed to hand over Prasana Diksa to Indira.

Indira also obtained a recovery order and warrant of arrest against her ex-husband from the high court to compel the police to locate Riduan.

The failure of the police to act resulted in her filing for a judicial review seeking the mandamus order, as Khalid was insistent that police would take the middle path in cases where disputing parties had obtained separate orders from the civil and shariah courts.

That argument was demolished as it was ruled that only a High Court could dissolve the marriage registered under the civil law, although one spouse had converted to Islam. – December 17, 2014