PUTRAJAYA: The High Court was wrong to issue a mandamus order to the Inspector-General of Police to arrest a Muslim convert and return his daughter to his ex-wife in a custody case, according to a government lawyer. The Federal Constitution does not allow the civil court to interfere in the affairs of the religious court, he said. Senior Federal Counsel Noor Hisham Ismail told the Court of Appeal that the High Court could not annul an order of a Syariah Court due to an amendment to the Federal Constitution in 1988.
“Parliament made amendments to avoid the civil court interfering in the affairs of the Syariah Court,” he said in his submissions to set aside the order given by High Court Judge Lee Swee Seng. He said both courts have exclusive jurisdiction and one is not superior to the other.
In 2009, the religious court in Ipoh had granted Muhammad Ridhuan Abdullah, formerly known as K Pathmanathan, the custody of his three children, Tevin Darsiny, 17, Karan Dinish, 16, and Prasana, 6, after he unilaterally converted them to Islam.
The following year, the High Court in Ipoh granted kindertgarten teacher M Indira Gandhi full custody of all three children and Ridhuan was ordered to return Prasana Diksa to Indira. On May 30 this year, the Ipoh High Court cited Ridhuan for contempt and issued a warrant of arrest against him after he repeatedly failed to hand over Prasana Diksa to Indira. She had also obtained a recovery order from the High Court to compel the police to locate Ridhuan.
The failure of the police to act resulted in her filing for a judicial review seeking the mandamus order, as IGP Tan Sri Khalid Abu Bakar was insistent that police would take the middle path in cases where disputing parties had obtained separate orders from the civil and syariah courts.
On Sept 12, the High Court allowed a judicial review by Indira for a mandamus order to force Khalid to arrest Ridhuan and return Prasana Diksa to her. Khalid then obtained a stay order from the Court of Appeal on Sept 25. His appeal against Lee’s order was heard yesterday before a three-man bench chaired by Datuk Abdul Rahim Abdul Aziz.
Hisham said since the Syariah Court had issued a custody order, the judge was also wrong in granting a recovery order to compel the police to locate and return the child to the mother. However, he said, the Police Act imposes a duty on the IGP to perform his function as prescribed under the law. He said it is only a perception that non-Muslims are barred from seeking justice in the Syariah Court.
Indira’s lawyer Aston Paiva said it was wrong of Hisham to claim that a civil court could not make the mandamus order. Paiva said the couple were married under civil law and their divorce and other relief like maintenance and division of property should be decided by the High Court. “The husband’s conversion to Islam does not affect the civil marriage unless decided by the civil court.” He said the High Court in Ipoh intervened because the Syariah Court had exceeded its authority.
“A civil court can invalidate a Syariah Court order and this has been done many times in the past,” he said.
Paiva said Indira’s remedy was in the civil court because a non-Muslim spouse could not go to the Syariah Court as that forum was for persons professing the religion of Islam. He said Khalid had ignored the High Court and made his own interpretation not to enforce the orders.
“He should have gone back to the civil court to ask for directive by making the necessary applications which he did not do,” he said.
Paiva said the Syariah Court has no jurisdiction over the police as it is not a person professing the Islamic religion and as such, Khalid is not bound by a religious court order.
“Artice 121 (1A) was crafted to avoid conflict of jurisdiction and not to oust the supervisory power of the civil court,” he said.
Lawyer Philip Koh Tong Ngee, who represented the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism, told the bench as a friend of the court that Khalid is bound to enforce the Police and Child Acts as they are federal laws. He said the religious court is constituted under state law.
“Article 75 of the constitution states that when there is inconsistency between federal and state law, the former shall prevail,” he said. The appellate court reserved judgment. — The Malaysian Insider
This article first appeared in The Edge Financial Daily, on October 31, 2014.