By The Edge
The police acted unlawfully in nabbing activists, including five lawyers, who took part in the Human Rights Walk in 2007, the High Court here ruled yesterday.
Justice Datuk John Louis O’Hara awarded a total of RM120,000 in damages to each of the six plaintiffs in the civil suit brought against the then Dang Wangi deputy police chief superintendent Che Hamzah Che Ismail, the Inspector General of Police, the Home Ministry, and the government on Dec 8, 2010.
The amount included RM10,000 in general damages each, as well as costs of RM60,000.
The lawyers involved were R. Sivarasa, N. Surendran, Latheefa Koya, Eric Paulsen, and Amer Hamzah Arshad as well as human rights activist Johny Andu @ Abu Bakar Adnan.
However, Paulsen was awarded special damages of RM5,454 for flight expenses from South Africa borne during the course of the trial.
O’Hara found that Che Hamzah was “indecisive in the decision he made” as he had ordered the six to be arrested before the 10-minute dispersal warning he had issued had lapsed.
“I find from the video evidence that [Che Hamzah] had given confusing, conflicting, and contradictory instructions over the loud hailer.”
“What had come across loud and clear were the words ’10 minutes’ but during the dialogue with one of the plaintiffs, it became apparent to me that [Che Hamzah] had not been decisive in [the] instructions he had issued,” he said.
The plaintiffs were arrested on Che Hamzah’s orders during the march that commenced at the Sogo Departmental Store here and proceeded along Jalan Tuanku Abdul Rahman on Dec 9, 2007.
They were then charged at the Sessions Court the next day under sections 143 and 145 of the Penal Code and alternatively under section 27 of the Police Act.
However, after two years of trial, on April 16, 2009, the lower court held that the prosecution had failed to establish a prima facie case and subsequently discharged and acquitted the plaintiffs.
Apart from the unlawful arrest, O’Hara also held it was wrong to have denied the plaintiffs’ right to legal representation upon their arrest on Dec 9, 2007.
However, the judge ruled out their claim of malicious prosecution.
The plaintiffs were represented by Edmund Bon while the defendants were represented by senior federal counsel Nadia Hanim Tajuddin.
Commenting on the judgment, Bon said the verdict asserted every individual’s right to fundamental liberties as enshrined in the Federal Constitution.
“This is probably the last case you will see under section 27 of the Police Act,” he said. Section 27 was abolished in 2011 and it has been substituted with the Peaceful Assembly Act (PAA) 2012.
Bon said this suit was filed principally as a question of upholding the rights to freedom of assembly. “I believe the plaintiffs are not here for the damages or money; the most important prayer they are here for is the right to freedom of association and assembly, as well as the right to equal and fair treatment that have been breached.”
Surendran said the freedom to assemble is “still a right that is under a threat in this country, following the enforcement of the PAA”.
“We hope there will be some response from the government to this verdict,” said the PKR MP for Padang Serai.
Paulsen said the judgment was clearly a “rebuke” against police action in stifling their right to gather peacefully.
“There are many more who were beaten up, charged, and detained but were not able to hit back. I hope the government, especially the new Home Minister, will take note that power cannot be abused at will.”
The written grounds of judgment can be accessed here.