By Hidir Reduan Abdul Rashid | Malaysiakini

The Malaysian Bar is seeking a court order to compel the police to pay damages for preventing lawyers from heading to the Parliament during the Walk for Judicial Independence (WFJI) on June 17.

The legal profession body also seeks multiple court declarations, including that the authorities violated the lawyers’ fundamental right to peaceful assembly.

The Bar’s lawsuit is related to the lawyers’ march which sought to raise the issue of an MACC investigation against judge Mohd Nazlan Mohd Ghazali.

Mohd Nazlan was the trial judge in the RM42 million SRC International corruption case against former prime minister Najib Abdul Razak. He has since been elevated to the Court of Appeal.

On June 17, after the failed attempt by the lawyers’ procession in Padang Merbok, Kuala Lumpur, to head to Parliament, Bar President Karen Cheah declared they were gathering evidence as preparation to file legal action over the authorities’ action.

According to copies of cause papers sighted by Malaysiakini, the writ of summons was filed by law firm AmerBON in the High Court in Kuala Lumpur on Oct 20.

The court papers listed the Bar, Cheah, its vice-president Mohamad Ezri Abdul Wahab, its secretary Anand Raj Balasubramaniam and its treasurer Murshidah Mustafa as the first to fifth plaintiffs respectively.

The documents also stated that Dang Wangi Police Chief Noor Dellhan Yahaya, Dang Wangi Criminal Investigation Division Chief Nuzulan Mohd Din, the Royal Malaysian Police, Inspector-General of Police (not named), Home Minister (not named) and the government as the first to sixth defendants, respectively.

Via the suit’s statement of claim, the plaintiffs contended that the defendants violated their fundamental right to personal liberty, equality before the law, freedom of movement, and freedom of assembly enshrined under Articles 5, 8, 9, and 10 of the Federal Constitution.

The plaintiffs claimed that the defendants perpetrated false imprisonment against them when they prevented the members of the Bar from marching from the Padang Merbok car park along Jalan Parlimen to the main entrance of the august House from 10am to 11am on June 17.

Excuses given, conditions laid out

The Bar contended that between June 3 and 7, the police refused to accept the former’s attempts to serve notices for the planned assembly, as per section 9(1) of the Peaceful Assembly Act 2012 (PAA).

The plaintiffs claimed that the excuse given by the Dang Wangi district police headquarters was that the notice was incomplete as there was a requirement for written permission from Kuala Lumpur City Hall (KLCH) and an approval letter from the National Security Council (NSC).

Bar Council President Karen Cheah

However, the plaintiffs contended that section 9(1) does not have such a requirement and that they had left the notices with the police, regardless.

The Bar and its four functionaries claimed that two days before the assembly, Anand Raj and four Bar Council Secretariat members attended a meeting organised by Noor Dellhan, where several conditions were laid out for the gathering.

The plaintiffs claimed that Noor Dellhan said a procession to Parliament was not allowed on several grounds, among them that there was another group planning to assemble on the same day; that there were objections from three unidentified interested parties; and that the day of assembly was a Friday which was a working day and such a procession would disrupt traffic.

The Bar and its four functionaries claimed that despite objections raised against the no-procession requirement, Noor Dellhan responded that the conditions were set “under instructions of higher-ups”.

The plaintiffs contended that between 7.45am and 10am on the day of the event (June 17), Cheah as well as the third to fifth plaintiffs, alongside 500 other lawyers and chambering pupils, assembled peacefully at Padang Merbok with the plan to march to Parliament and submit a memorandum to the prime minister or his representative.

They also contended that after speeches were given, the participants tried to march to Parliament but were stopped by plastic barriers as well as by police officers there, with one of the officers stating that marching was not allowed per the conditions previously given for the assembly.

The plaintiffs claimed that they tried negotiating with the police to continue the march, but were not successful due to the purported unreasonable condition imposed by the authorities, namely that only 30 participants were allowed to march to the august House.

The plaintiffs contended that they then changed their route and attempted to march using the entry and exit route for vehicles at Padang Merbok.

Plaintiffs surrounded by police

“However, the police officers formed a human chain to prevent the plaintiffs and all of the participants from marching by using the entry and exit vehicle route of Padang Merbok car park. This was at the direction and/or control of the first, second, third, fourth, and/or fifth defendants. 

“Since both entrances and exits were blocked by the police, the plaintiffs and all of the participants were surrounded by the police at Padang Merbok car park. The number of police at that time was also greater than the number of the members of the Bar who were present during the WFJI Assembly and March.

“At that time, there were approximately 200 to 300 members of the Federal Reserve Unit wearing red helmets who had been stationed around Jalan Parlimen, under the direction and/or control of the first, fourth, and/or fifth defendants

“The state of which the plaintiffs were surrounded by the police, prevented them from leaving the place of the assembly (which) lasted for approximately 40 minutes,” the plaintiffs claimed.

They claimed that around 11.15am, then deputy law minister Mas Ermieyati Samsudin arrived at Padang Merbok and received the Bar’s memorandum regarding the need to uphold the independence of the judiciary. They explained that the assembly then dispersed 15 minutes later.

The plaintiffs claimed they initially filed a judicial review leave application at court over the matter, but they withdrew it upon finding out the police’s investigation against them over the assembly has since been classified as NFA (No Further Action). 

Through the present civil action filed after the withdrawal of the earlier judicial review, the plaintiffs are seeking special damages of RM19,449 as well as general, aggravated and exemplary damages to be assessed by the court, and five percent interest on the awarded compensation from the date of judgment to the date of full settlement of the sums.

Among the court declarations sought are that the imprisonment of the plaintiffs by the defendants during the assembly was illegal and unlawful; that the defendants contravened the plaintiffs’ rights under PAA; and that the defendants breached their statutory duties under the same Act.

According to a filing sighted by Malaysiakini, the defendants entered their appearance in the lawsuit via a memorandum of appearance filed by the Attorney General’s Chambers on Nov 7.

Under the law, a party entering appearance means it intends to respond to the legal action, such as by filing a statement of defence, among other possible avenues.

The online cause list states that the matter has been set for case management before the High Court Registry in Kuala Lumpur on Jan 12 next year.