It is indeed a matter of regret - but entirely appropriate - for the Federal Court to remind the inspector-general of police (IGP) of his obligation under the Police Act to carry out any direction issued by a court. Because of his failure to do so, the Federal Court issued a mandamus ordering him to comply. A mandamus is issued to compel a public officer to carry out his public duty.
Since December 2014 the IGP refused to arrest a person who had thumbed his nose at the Ipoh High Court’s order to deliver his daughter to the mother, M Indira Gandhi.
The duty of the IGP was clear. He had to execute the order against the recalcitrant husband because he had wilfully disobeyed the court order and was consequently found guilty of contempt by the Ipoh High Court.
The order was clear. The IGP was directed to arrest the husband even though there was another order relating to custody of the child by the Syariah court.
What should the IGP have done?
As the Federal Court pointed out the law was straightforward. The Police Act 1967 says that a police officer must perform such duties as are by law imposed upon him. And more specifically that he must (as relevant to this case) “apprehend all persons who he is, by law, authorised to apprehend and execut(e) summonses, subpoenas, warrants, commitments and other processes lawfully issued by any competent authority”: section 20(3)(f).
The failure of the IGP meant that the recalcitrant litigant could thumb his nose at the court for more than a year! Lectured Justice Md. Rauf of the Federal Court:
“The administration of justice will be brought into disrepute if the court's order is wilfully disobeyed by a party against whom a warrant of committal had been issued after he was found guilty of contempt of court”.
What this implies is that it is not for the IGP to decide whether or not to obey a court order. He is fully protected if he carries out the order as directed by the court and fortified by the Police Act. Indeed the IGP could well be in contempt of court if he fails to do so. The Federal Court was magnanimous in excusing the disobedience with a mere slap on the wrist.
The Federal Court’s grim but timely reminder to the IGP is, in the words of the celebrated English judge Lord Denning in the Gouriet v Union of Postal Workers case: “Be you ever so high the law is above you” - invoking this famous cry of historian Thomas Fuller. “This lies at the heart of the dedication of this country to the rule of law,” said Denning.
GURDIAL SINGH NIJAR is a former law professor at Universiti Malaya.