Lawyers Rajesh Nagarajan and Sachpreetraj Singh, appearing for Indira in her lawsuit against the police and the government, said the authorities have yet to arrest her former husband despite a court order instructing the government to execute a warrant of committal five years ago.
“If it was not for the police’s failure, she would not have suffered not seeing Prasana Diksa (Indira’s youngest daughter).
“The police’s conduct in refusing to execute the court order directly or indirectly extended the separation between her and Prasana, as well as enabled Patmanathan to evade capture,” Rajesh said, referring to Riduan’s name before his conversion to Islam.
The Federal Court had in 2016 instructed the inspector-general of police (IGP) to execute the warrant of committal against Riduan after he was found guilty of contempt by refusing to hand over their daughter Prasana to Indira.
Prasana was taken away from her mother in 2010.
The apex court said the Ipoh High Court judge would monitor the progress of the arrest warrant’s execution.
Indira filed her lawsuit last year, citing police inaction in executing the warrant against Riduan. She is seeking damages and a declaration that the IGP had committed tort of nonfeasance in public office.
The government had moved to strike out her suit on grounds that it was frivolous and an abuse of the court process, claiming she had wrongly commenced the civil action. They said her judicial review against the government was still pending at the Ipoh High Court.
Indira’s lawyers, in responding to the government’s striking out bid, said the lawsuit today was not an obvious case to be struck off.
“We submit that there is no law restricting her from filing a cause of action for a tort of nonfeasance against the defendants for their failure to adhere to a duty imposed by the court.
“There is a reasonable cause of action that ought to be disposed of in a full trial,” Rajesh said.
Senior federal counsel Andi Razalijaya A Dadi, representing the government and police, told the court that “there must be a causal link” between the action (Indira’s lawsuit) against the authorities and the losses that she claimed she suffered.
“To begin with, the losses suffered by her resulted from Patmanathan’s action since he refused to surrender Prasana and took away the girl in 2010.
“The Federal Court on April 29, 2016, only instructed the IGP to execute the committal order to arrest Patmanathan and this does not include the execution of the recovery order to recover Prasana,” Andi said.
He maintained that police have no duty to recover Prasana, and Indira could not claim “she suffered loss due to separation caused by the authorities”.
The government also said Indira could not sue for claims of nonfeasance committed by the IGP as the Government Proceedings Act did not spell out such liability.
“The failure of the IGP to execute the committal order does not attract the liability of nonfeasance in public office, and thus her lawsuit discloses no reasonable cause of action,” Andi said.
The government is also objecting to Indira’s bid to seek 48 answers from police over their investigations on Riduan.
Andi said her interrogatory application would not assist in helping to dispose of the case in a fair manner.
“The interrogatories will be pointless and futile since the police have denied and disputed the allegations of omission and failure on their part to locate Patmanathan,” he added.
However, Indira’s lawyers said she would suffer great injustice if her attempt to seek answers were turned down.
“The interrogatories posed by her are specific and focused on issues to be tried in a full hearing.
“If the interrogatories are denied, she would lose an opportunity to obtain relevant admissions that would save the court’s time,” Rajesh said.
High Court judge Mohd Nazlan Mohd Ghazali fixed July 16 for a decision on whether to allow the government to strike out Indira’s lawsuit.