A three-member Court of Appeal panel found no merits in the government’s appeal and upheld the High Court’s decision to proceed with the trial.

Judge Hanipah Farikullah, who chaired the panel, dismissed the appeal and ordered the government to pay RM10,000 in costs.

She said there were “complex issues of law” that needed to be ventilated at a full hearing.

She ordered the High Court in Kuala Lumpur to hear the case on Sept 14.

Indira filed her suit last year, citing police inaction in executing the warrant against her former husband, Riduan Abdullah, for failing to hand over custody of their youngest daughter, Prasana Diksa, to her.

During today’s proceedings, senior federal counsel Andi Razalijaya A Dadi said one cannot sue the government or its officers for nonfeasance as there was no law that provided for it, except the Government Proceedings Act 1956.

He said Section 7(3) of the Act was the only law that provided a tort of nonfeasance to be applied, adding that it was confined to construction, and maintenance of roads and bridges, among others.

He said there was no remedy or right to sue for nonfeasance under Section 20 of the Police Act, which merely stated the general duties of a police officer.

He also said the Federal Court had only ordered a warrant of committal for the IGP to execute, and not for the recovery of Prasana. Therefore, he said, the IGP was not liable for the “pain and anxiety” suffered by Indira.

“Who caused this pain, anxiety and damage? To us, it is the ex-husband Pathmanaban (Riduan), not the IGP,” he said.

Lawyer Rajesh Nagarajan, appearing for Indira, said while there were no established authorities on nonfeasance in Malaysia, there were plenty of English common law cases which could be relied upon by the courts.

Rajesh also said a judicial review against the police at the High Court in Ipoh had been disposed of, so there was no issue of duplicity as claimed by the federal counsel.

Hanipah, who sat with judges Gunalan Muniandy and Zaidi Ibrahim, said the High Court was correct in dismissing the federal counsel’s application for the suit to be struck out.

She said it was a matter that must be dealt with by way of trial.

“We are of the considered view that based on the facts and circumstances of this case, there are complex issues of law, including issues on the interpretation of Section 7(2) of the Government Proceedings Act, Section 20 of the Police Act, and also the common law positions of the tort of nonfeasance by a public officer.

“The present claim does not warrant a strike out. We find that there is no error by the earlier judgment to dismiss the striking out of the application,” she said.

The government had earlier wanted to strike out Indira’s suit on grounds that it was frivolous and an abuse of the court process, claiming Indira had wrongly commenced the civil action.

The defendants also said Indira’s judicial review against the government was still pending in the Ipoh High Court.

The Federal Court had in 2016 instructed the IGP to execute the warrant of committal against Riduan after he was found guilty of contempt by refusing to hand over their daughter, Prasana.

Prasana was a year old when Riduan took her away in 2009.

We are live on Telegram, subscribe here for breaking news and the latest announcements.