KUALA LUMPUR, July 16 — The High Court has today ordered a full trial for M. Indira Gandhi’s suit against the police, the Home Ministry and the government for purportedly failing to repatriate her daughter, Prasana Diksa, and alleged inaction in executing a warrant of committal to arrest her former husband for contempt.
In dismissing the striking out by the aforementioned parties, High Court judge Mohd Nazlan Mohd Ghazali said the Court was especially mindful that every Malaysian citizen has a constitutional right of access to justice under the Federal Constitution.
He added that the effect of striking out a claim is to completely deprive a plaintiff from having his or her day in Court, further pointing out that it was also well-established that a striking out is not justified even if a case is weak and unlikely to succeed.
“Although the defendants (government, police) in this striking-out application are correct in highlighting that the suit by her may not be based on the alleged nonfeasance in respect of the recovery order, the suit in my view may still proceed vis-à-vis the committal order.
“Contrary to the government’s assertions, this suit discloses a reasonable cause of action as the tort of nonfeasance under Malaysian law is recognised under Section 5 of the Government Proceedings Act, that states the government is liable in tort when any public officer commits any wrongful act, neglect or default in relation to a duty imposed by law.
“In view of among others, the foregoing principal reasons, I find that the suit by the plaintiff for declaration and damages against the first defendant for the tort of nonfeasance in public office and against the other defendants for being vicariously liable in respect of the enforcement of the committal order cannot be said to be vexatious, frivolous or an abuse of the Court process.
“This case is not obviously unsustainable to warrant a summary dismissal but instead should be allowed to be determined by way of a full trial where the parties will have the opportunity to call their witnesses and present their case. The striking out application is therefore dismissed,” he said during an online proceeding here.
Mohd Nazlan pointed out that the government’s argument that Indira’s suit would result in a multiplicity of proceedings as the judicial review in the Ipoh High Court was still pending was without merit.
“This is primarily because both the cause of action of the tort of nonfeasance and the remedy of damages in this suit have never been raised before in any other proceedings.
“Her judicial review was centred on compelling the police to execute a committal order.
“This does not however bar her from instituting a civil claim to seek damages for the loss she claims to have suffered as a result of the alleged nonfeasance of the defendants in respect of the mandamus and committal order,” he said.
Mohd Nazlan also said he was satisfied that there were material factual disputes as to the relevant efforts and steps that had been taken by the defendants towards the enforcement of the committal order, including as to the nature and extent of the same based on the affidavits provided to the Court.
Earlier, Mohd Nazlan also said despite the issuance of the mandamus and the committal order by the Federal Court and High Court to the defendants in 2016 and 2014 respectively, Pathmanathan has yet to be apprehended and return Prasana to the plaintiff.
Interrogatories application partially allowed
Separately, Mohd Nazlan also partially allowed Indira’s interrogatories application as part of her civil lawsuit, limited to questions related to committal proceeding.
In Indira’s interrogatories application, she had applied to the High Court to be allowed to present a list of 48 questions to the inspector-general of police (IGP) for the latter to answer.
Included in the list of 48 questions were whether the IGP knew of the location of Prasana and Riduan in any of the years from 2014 to 2020; whether Prasana is to the police’s knowledge currently in Riduan’s custody; and whether there was evidence that the child is alive.
“In respect of the application for the proposed interrogatories, apart from those relating to the recovery order which cannot be allowed for the reasons stated earlier, several of the other questions most of which require a Yes or No answer, would in my view serve the legitimate and clear litigious purpose of the interrogatories to obtain admissions which would reduce the issues in dispute.
“The need to call additional witnesses would decrease and the examination of relevant witnesses would be shortened, thereby saving costs and expenses.
“It is also observed that in his opposition to this application, the first defendant did not aver that the answers to the interrogatories are deemed privileged.
“In accordance with Order 26 of the Rules of Court 2012 I therefore find that the following questions are necessary for disposing fairly of the matter and for saving costs.
“I therefore allow this application in respect of questions numbers 1 to 7, 15 to 22, 33 to 36, 41 to 43, 46 and number 48,” he said.
According to the Federal Court of Malaysia’s e-Filing System (EFS), Mohd Nazlan is set to hear the case from December 15 to 16, February 9 to 10 in 2022, March 10 and 31 as well.
Indira’s ex-husband, Muhammad Riduan, formerly known as K. Pathmanathan, embraced Islam in 2009 and converted all three of his children he had fathered with Indira on April 2 that year without their mother’s knowledge. Until then, they had been raised as Hindus.
After a protracted court battle that spanned years, the Federal Court ruled in January 2018 that the unilateral conversions of Indira’s children were unlawful.
Indira then filed a lawsuit last year claiming RM100 million from the IGP over his agency’s continued failure to execute a court order to reunite her with Prasana.