On Friday, 12th September 2014, in the Ipoh High Court, Justice Lee Swee Seng once again, and for the third time, unrelentingly lived up to his oath to protect, preserve and defend the Federal Constitution and the Rule of Law in Malaysia.
1. Sometime in 2010, Justice Wan Afrah binti Wan Ibrahim granted Indira custody of all her three children even though Indira’s estranged husband had converted to Islam, and had purported to convert all three children to Islam
2. On 25 July 2013, Justice Lee Swee Seng quashed the conversion certificates as against the three children. His Lordship’s judgment is here.
3. Then, on 30th May 2014, the Court issued another ground-breaking decision committing the husband to prison for contempt of court for not honouring the custory decision of Justice Wan Afrah. The Judge also granted a Recovery Order under the Child Act 2001. That judgment is here.
4. The Warrant for Committal and the Recovery Order from the High Court were serving on the Inspector General of Police Khalid bin Abu Bakar. But, alas, Indira Gandhi was faced with another hurdle in her pursuit of being reunited with her abducted daughter who she hasn’t seen in more than 5 years. The IGP is refusing to enforce the warrant and the recovery order on the ground that there exists a “valid” Syariah court custody order.
You, dear reader, will of course recall that the High Court had, on 30th May 2014, found the Syariah court custody order to be invalid. Despite this being communicated to the IGP, the IGP refused to execute the warrant and the recovery order.
Thus, we come to this judgment dated 12th September 2014.
Justice Lee Swee Seng, in his 68 page judgment, expounds on the law governing mandamus (an order to mandatorily compel a public authority to perform a legal duty) and the unreasonableness and unlawfulness of the IGP’s refusal. His Lordship issued the order of mandamus directing the police to execute the Warrant for Committal and to comply with the Recovery Order.
The full grounds of judgment is found here, and as always, well worth the read: Indira Gandhi Mandamus – HC Grounds.
The IGP appealed to the Court of Appeal, and obtained a stay of this mandamus order. His appeal in the Court of Appeal is now fixed for Hearing on 30th October 2014.
In brief, the learned Judge decided as follows:
A. That section 3(3) and 20(3) of the Police Act 1967 imposes a duty on the IGP to command the Royal Malaysia Police to maintain law and order, prevent and detect crime and apprehend and prosecute offenders, and in pursuance to of his duty, he must execute warrants of court and apprehend all persons he is authorized to apprehend.
B. There is nothing for the IGP to execute in the Syariah custody order, and in any case, the Syariah court has no jurisdiction over the IGP which is a public office that does not profess a religion.
C. The refusal to execute by the IGP frustrates the Judicial Power of the Federation by rendering the court’s power to order the enforcement of the Custody Order, through committal proceedings, illusory.
The Judge’s final pronouncement and postscript is reproduced below:-
The IGP’s stand is that he is hemmed in between 2 equally valid custody orders emanating from 2 systems of Court; one Syariah Courts for Muslims and the other Civil High Courts for the rest. However, even if there is a conflict of laws here within the same Federation, this Court had resolved it for the reasons already given. It remains for the chief law enforcer to enforce the law as declared by the superior Courts established under the Federal Constitution of which this High Court is one.
The IGP may have his personal views on the law but when the crunch comes in the discharge of his duty to enforce the law, he must of necessity enforce the law as may be interpreted by the superior Courts of which the High Court of Malaya is one. That Court had already held that it is the Civil High Court that has jurisdiction in a case of custody orders with respect to a child of a civil marriage under the Law Reform (Marriage and Divorce) Act 1976 even though the father of the child had converted to Islam after the birth of the child. This Court had also held that the Custody Order of the Syariah Court granting custody of the child to the father is null and void and of no effect for want of jurisdiction. This Court had also granted a recovery order based on the antecedents of the case where the father of the child continues to conceal the whereabouts of the child and refuses to hand custody of the child to the mother.
Until the above orders are stayed, set aside or reversed, the above orders of this Court remain valid orders and no one can flout it with impunity. Even if the orders should be reversed on appeal, they remain valid orders that must be complied with unless a stay has been obtained.
In all the circumstances of the case, this must be a very rare application indeed for a mandamus against the IGP and an even more rare order granted by this Court for a mandamus to be issued against IGP for the execution, within 7 days from the service of this order, of both the warrant of committal and the recovery order under section 53 of the Child Act 2001 both dated 30 May 2014 validly issued by this Court of competent jurisdiction in OS No. 24-513-2009 as prayed for in Enclosure 1.
There was also a prohibitory order prayed for to restrain the IGP from executing the Syariah Court Custody Orders but that would not be necessary if the mandamus order is so expressed that the execution of the 2 orders of the warrant of committal and recovery order is to the exclusion of the Syariah Court Custody Orders and I so ordered.
It is to be noted that so far there has not been any order from the Syariah Court directing the IGP to execute.
The public has an expectation that the IGP being the chief law enforcer would execute his duties fairly and firmly, without fear or favour and that as we celebrate Malaysia Day (16 September), we can yet affirm that we are a country where the Rule of Law prevails, that no one is above the law and that the Courts as established under the Constitution do not act in vain.
Being a matter of public interest, I exercised my discretion and made no order as to costs.
After the order of mandamus was issued, the learned SFC Encik Noor Hisham for the IGP, had orally applied for a stay of the mandamus order. He submitted that the date of controversy is a special circumstance by itself. According to him, if the decision is not stayed, then other appeals concerning issue of jurisdiction would be rendered nugatory.
This was objected to by learned counsel for the Applicant, Mr Aston Paiva. I agreed with him that generally there is no stay of prerogative writ for if a stay is granted, the Court would be indirectly affirming the breach of a public duty.
I agree that the way this decision may affect pending cases does not affect the execution of this Court’s order.
In any event there is no special circumstance justifying stay. While we may pause to ponder and to process the law and then to later 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 the mother having reasonable access. The Syariah Court Custody Order does not prevent the mother Applicant from having reasonable access to the child.
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 and to be restored to the child of her womb. Nothing can compensate for the lost years.
The oral application for stay was dismissed and the learned SFC is at liberty to apply to the Court of Appeal for stay.
Parliament has entrusted it to the police and to them alone to execute all warrants of committal and recovery orders. The police alone has the power, experience and expertise including the resources of the State to carry out such a duty. The matter assumes greater urgency when it is asked: If not you, the police, then who? If not now, then when?”
We would urge those interested to attend at the Court of Appeal at Putrajaya on Thursday, 30th October 2014 at 9.00 a.m. if they want to observe the arguments before the Court of Appeal, which promises to be most interesting.