An odd sort of day at the Palace of Justice in Putrajaya, Malaysia on Wednesday, December 17, 2014.
There were two appeals before Malaysia’s intermediate appellate court, the Court of Appeal, in a case where mothers were complaining about their estranged husbands not returning their children to them. The fathers had converted to Islam, and had secretly obtained orders from state syariah courts granting them custody. The mothers in turn obtained custody orders from the civil High Court.
Details are in the following two news reports:-
The net effect of these judgments seem to be as follows:
1. The mothers won on the custody issue – The Court of Appeal unanimously held that only the civil High Court has jurisdiction to determine which parent has custody of children born to a non Muslim couple, and to dissolve their marriage registered under the Law Reform (Marriage and Divorce) Act 1976 (i.e. a law applicable only to the marriages ofnon Muslims) even if one spouse has since converted to Islam (and even if that spouse purported to convert the children to Islam).
2. The mothers also won on the Recovery Order issue – The Court also unanimously held that the Seremban High Court was correct to grant a recovery order under section 53 of the Child Act 2001, which directs the spouse to return a child to the parent with “lawful custody” of the child. The order can also direct the police to assist to recover the child.
Thus, the Court of Appeal effectively overruled contentions that the father also had valid custody of the child by virtue of a Syariah Court order purporting to grant him custody.
3. The mothers failed to get an order of mandamus against the police – Despite all the above, the Court of Appeal (by a 2-1 majority) held that the mothers’ can’t get an order of mandamus to compel the police to arrest the husband if he breaks the above Court Orders. (An order of mandamus is an order of Court compelling a public officer who has failed or refused to carry out a public duty to perform that duty. It is a necessary pre-requisite to citing that public officer for contempt of court.) In short, the husband must do all the above things but it’s not the police’s job to ensure compliance with the order. There seems to have been a suggestion that the mothers’ must instead ask the Court bailiffs to enforce the orders.
This last decision is very curious.
The Court had found the husband to have been in contempt of court, and had issued a warrant of arrest directing that the husband be arrested and brought before the Court. This is a common form of order in all civil contempt proceedings. The warrant and order of committal commits the person who has committed contempt (the contemnor) to civil prison until he purges the contempt i.e. complies with the Order.
If indeed a bailiff is empowered to execute a warrant of arrest in this way, I think this would be a very significant change to how the Court process works in Malaysia. Hopefully, the full grounds of judgment of the Court of Appeal is out soon so some questions people have will be answered.
Disclaimer: The writer is on the legal team of both Deepa and Indira, the mothers involved in the two disputes.