It is indeed heartening to see that a mother and her daughter, both of whom have been separated for seven torturous years, will once again be reunited following a unanimous verdict by the Federal Court yesterday.
Indira Gandhi Mutho’s long quest for justice finally came to fruition when the Federal Court’s five-man panel led by Justice Tan Sri Md Raus Sharif overturned the Court of Appeal’s decision to rescind the mandamus order of the Ipoh High Court, thus compelling the police to arrest Indira Gandhi’s Muslim convert ex-husband for contempt, after failing to abide by the High Court’s 2014 ruling to return their daughter to her mother.
However, the Federal Court at the same time affirmed that the original recovery order issued by the High Court was unenforceable, due to a conflicting custody order issued by the Shariah Court.
While the Federal Court ruling has put to rest the case, there are a few issues that need to be highlighted. Firstly, the disconcerting jurisdictional quandary remains unresolved, namely how the police should act in the event of two conflicting orders from both the High Court and Shariah Court, as in the case of Indira Gandhi and many others like her.
Secondly, if it is clear that Article 121(1A) of the Federal Constitution prevents the High Court from issuing enforceable custody or recovery orders, then what is the point of seeking remedy at the High Court? Clearly, there is a lacuna in the law here.
Hence, I would like to reiterate my proposal to emulate the Constitution of India, which allows parties to petition the Supreme Court directly for the enforcement of constitutional rights. Article 32 of the same Constitution also grants the Supreme Court powers “to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari” for the enforcement of such rights.
A similar provision can be introduced in Malaysia without a constitutional amendment, but by simply amending the Courts of Judicature Act 1964 in order to allow direct petition to the Federal Court in matters pertaining constitutional rights and fundamental liberties. This should include matters of unclear jurisdiction, such as those that fall within Article 121(1A).
Such a procedure, if introduced, would immediately ensure that mothers like Indira Gandhi would not have to wait seven years for a decision by the apex court. Instead, it would save affected parties much time and resources as they would no longer have to go through the cumbersome process of petitioning the High Court, whose decision would be invariably ignored by the police where there exists a conflicting Shariah Court order, before appealing to higher courts for a final decision.