While all five Federal Court judges today agreed with the preliminary objection made by Dr M Jeyaganesh , Chief Judge of Sabah and Sarawak Richard Malanjum offered a novel solution to hear the estranged wife's appeal.

The solution involves giving S Shamala, a former bank clerk, three months to return to Malaysia with her two children and be subject to the country’s laws before hearing her appeal.

NONE Malanjum ( right ), the only non-Muslim judge on the bench, said in his 27-page judgment there would be no undue serious prejudice.

“I am therefore incline to rule that the interests of justice is best served by making an order that the wife and the children are to appear before this court within three months from today.

“Failing which, this reference (constitutional questions) will be deemed dismissed with costs," judge Malanjum said.

He said upon dismissal, the appellate court may then proceed to deal with the matter of contempt accordingly.

Justice Malanjum went on further to highlight “the fugitive disentitlement doctrine” which is adopted in the United States as something to ponder on, but not necessary applied here.

“It is an equitable doctrine with a goal not so much to punish the fugitive, but rather to eliminate the possibility of 'heads I win, tails you lose' litigation, wherein the fugitive could enjoy the results of a victory while ignoring the consequences of defeat.

“It provides the court the discretion to preclude a fugitive from calling upon the resources of the court to determine his claim or appeal,” he said.

The chief judge of Sabah and Sarawak, however, noted the doctrine was however, not endorsed by the British House of Lords.

Four judges do not agree with time frame

Despite Malanjum’s enlightening judgment, the remaining four judges including Chief Justice Zaki Azmi do not agree in giving the time frame.

All had their own judgments which they read out in open court.

zaki azmi Zaki ( left ) said while he agreed with the Chief Judge of Sabah and Sarawak, he does not agree with an order given by the court giving the wife further time to appear, as she had avoided the contempt proceeding initiated by her husband.

“While having done so, she now seeks the court’s assistance to raise the questions... This would in effect allow her benefit without her performing her part of the obligations for which she may be in contempt.”

“She had also been away since 2004, that is six years, and has not returned to Malaysia. By doing so, she had unlawfully had custody of the children and even if the court were to examine the children aged nine and 12 years now as to who would they choose to live with, most likely they will choose to live with her.”

Zaki further said therefore, Shamala had an unfair advantage by not complying with the court order and he would allow the objection.

“To grant her further opportunity would encourage persons like her to commit contempt against the court, with the hope that the court will give him or her the opportunity to correct it. There is no reason to defer any more time.

“The law and order of the court is meant to be respected, and complied with, and not to be looked down or disdained,” he said.

The other judges who disagreed in giving the time frame were President of the Court of Appeal Justice Alauddin Md Sheriff and Federal Court judge Zulkefli Ahmad Makinuddin.

CJM: Unjust for husband

Chief Judge of Malaya Justice Arifin Zakaria, the third highest judge in the country, in his judgment ruled that it would be unjust for Dr Jeyaganesh, or known by his Muslim name Muhammad Ridzwan Mogarajah, for the Federal Court to allow Shamala the due judicial process.

“It is clear that she has no intention to comply with the court orders. The court should not permit itself to be used by her for her own end or benefit. As stated by the chief judge of Sabah and Sarawak, it would result in the constitutional right of the husband being made illusory irrespective who succeeds.

“It is the solemn duty of this court to ensure the constitutional rights enshrined in the federal constitution are safeguarded,” he said.

Saying he could not agree with the order to grant a three-months grace period, Justice Arifin agreed with Zaki that much time had passed.

“For that reason, the respondent (Dr Jeyagandesh) could not commence contempt proceeding against the appellant. In the circumstances, I do not see the need for this court to grant the appellant further time to comply with the orders of the court.

“Orders of the court must be respected, otherwise the integrity and respect for the judiciary will be seriously undermined,” he said.

Jeyaganesh’s lawyer lauds decision

The lawyer representing Jeyaganesh, Muralee Menon, welcomed the unanimous decision, saying if she wanted justice Shamala should come back with the children.

“She cannot ask for justice from out of the country, especially in a case where the children have been deprived of their father for the past six years. The decision today was not one bordering on religion but purely the fundamental right of the parent,” Muralee said.

Jeyaganesh was not present in today's proceeding.

Azmi Rais, the lawyer appearing for the Federal Territory Islamic Department, a party named by  Shamala, agreed with his counterpart as Shamala cannot be allowed to dictate from abroad.

“It is like seeking a judgment in her favour ‘by remote’. This is not fair and hence, the court’s decision is correct,” he said.