The Shamala judgment

Chief Justice Tun Zaki Azmi and four other Federal Court judges ruled against S. Shamala’s appeal on Friday 12 November 2010. This is the text of his judgment.

I have had the privilege of studying the grounds of judgment of my learned brother CJSS [Chief Judge of Sabah and Sarawak] — I thoroughly agree with his reasoning with the authorities cited there in.

I do not, however, agree with his order that this court should give the wife any further time to appear before this court. She had avoided the contempt proceeding taken against her by her husband.

While having done so she now seeks the court’s assistance to grant her leave to raise the questions mentioned in the grounds of judgment of the learned CJSS to allow her leave to appeal —would in effect grant her benefit without her having performed her part of the obligations for which she may be contempt.

She had also been away since 2004, i.e. for 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 now as to who would they choose to live with, most likely they will choose to live with the wife.

She had, therefore, had an unfair advantage by not complying with the court order. By now the children will be about 12 years and 9 years respectively.

She was also to surrender their travel documents to court, which she failed to do. 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.

The law and order of the court is meant to be respected, and complied with, and not to be looked down or disdain.

For those reasons, I would allow the preliminary objection and dismiss this application and revert this matter to the Court of Appeal to be dealt with accordingly.

There is no reason to defer any more time, costs will be borne by the applicant.