Saturday, June 14, 2014

Exhaust legal process before police can act, Putrajaya tells parents in custody battles


BY DESMOND DAVIDSON
Published: 14 June 2014 | Updated: 14 June 2014 5:30 AM 

Putrajaya has decided that parents locked in interfaith child custody disputes will have to exhaust all the legal processes available to them in the courts before any government agencies, like the police, can enforce the court's findings, Minister in the Prime Minister's Department Nancy Shukri (pic) said today.
She said the decision was made by the Cabinet yesterday.
“That's the position the government is taking now,” she said today when asked to explain the prime minister’s proposal that parents use the legal process in cases where civil court verdicts differed from those of the Shariah court. 
Prime Minister Datuk Seri Najib Razak had made the suggestion when commenting on custody battles involving S. Deepa in Seremban and M. Indira Ghandi in Ipoh.

"They can appeal to the Federal Court. Since this matter has attracted the attention of the public, the government believes the court will give priority to these cases," Najib had said.

Deputy Home Minister Datuk Wan Junaidi Tuanku Jaafar, meanwhile, summed up the Cabinet decision by saying that parties in such disputes would have to “go through the legal processes until they come to a point they can go no further”.

“They could go no further after the Federal Court,” he said.

He said the police would therefore wait until the legal process is over before taking any action.

Both the police and the prime minister have come under criticism from lawyers, politicians and women's groups for failing to act on two civil court decisions which ordered the fathers who had converted to Islam to surrender their children to the mothers.

Lawyers For Liberty (LFL) executive director Eric Paulsen had said the prime minister's suggestion that interfaith disputes be resolved by the Federal Court was senseless and impractical as the parties involved would need to go through the Court of Appeal, adding to the litigation cost.

Wan Junaidi said one of the reasons why the police had also not acted on the civil court decision was because S. Deepa and M. Indira Ghandi had failed to get a court order to compel the police to act.

“A court decision is one thing. This is a civil case, not a criminal case so a court order is required to compel the police to act.

“Police in this case could not act on the court’s decision (as there was no court order).

“So far, the Inspector-General of Police (IGP), the CPOs (chief police officers) the OCPDs (officers in charge of police districts) have not been served such a court order.

“So don't blame them (for not acting),” he said.

Wan Junaidi, a lawyer by training, said what is currently happening in the interfaith custody dispute cases was that there was a conflict of law between the civil court and the Shariah court.

“We cannot ignore the decision of any one court because both the civil court and the Shariah court have similar powers and status,” he said.

Wan Junaidi said this was because there was no law that said which court should take precedence.

He said since both the civil and Shariah courts were equal in power and stature, the civil court, for example, could not claim it had precedence or supercede the Shariah court's findings.

Meanwhile, Nancy said that when the Cabinet insisted during its meeting yesterday that the police act on the civil court’s decision to return the two children to their mothers, the police had asked who should be responsible when actions are taken against the police.

“The police fear that they could be cited for contempt by the parents in the two courts for not following through the courts' decisions."

Nancy said since the government could not interfere in the courts, the Cabinet hoped the courts would take into consideration the interest and welfare of the children involved and fast-track all interfaith custody disputes.

“Whatever decisions are made, priority must be to protect the welfare of the child and limit the psychological damage they might have to endure,” she said.

Nancy, a lawyer by training, said personally, she stood by the statement she had made a week ago that  the police should take action immediately and return the children to their mothers.

“For me, as a mother, I can feel for the children's mother.” – June 14, 2014.

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