By Dawn Chan | New Straits Times
The High Court today ruled that former Dang Wangi district police chief Senior Assistant Commissioner Noor Dellhan Yahaya had acted ultra vires (beyond powers) to impose a condition that absolutely prohibited the Malaysian Bar Council’s assembly and march for judicial independence in 2022.
Judicial Commissioner Gan Techiong issued a declaration that Noor Dellhan had acted ultra vires on June 15, 2022 in using Section 15 of the Peaceful Assembly Act to absolutely prohibit the event known as Walk for Judicial Independence, which was scheduled for June 17, 2022.
Gan awarded a nominal damage of RM1 to be paid by Noor Dellhan and five other defendants to the Bar.
The RM1 was proposed to by the Bar and agreed by senior federal counsel Mohammad Al-Saifi Hashim, after Gan ruled that there should be no award for special damages.
“I am grateful to the counsel from both sides for agreeing that nominal damages of RM1 be awarded to the first plaintiff (the Bar).
“The other prayers in the statement of claim are dismissed. Lastly, since this is a public interest case and the plaintiffs have only partially succeeded, no costs shall be ordered,” he said.
In November 2022, the Bar and four other plaintiffs filed a lawsuit naming Noor Dellhan, then-Dang Wangi Criminal Investigation Department chief, Superintendent Nuzulan Mohd Din, the police force, the Inspector General of Police, the Home Minister, and the Government as the first to sixth defendants.
The plaintiffs, including former Bar Council president Karen Cheah Yee Lynn, current president Mohamed Ezri Abdul Wahab, vice president Anand Raj, and secretary Murshidah Mustafa, claimed they were allegedly obstructed from assembling at the Padang Merbok public car park and marching to Parliament to deliver a memorandum to the then-Prime Minister, Datuk Seri Ismail Sabri Yaakob.
The assembly and march were intended to protest against the actions of the Malaysian Anti-Corruption Commission (MACC), which had publicly announced an investigation into a Court of Appeal judge (Datuk Mohd Nazlan Mohd Ghazali). This was considered interference with the judiciary’s independence and a violation of the fundamental principle of the separation of powers.
In his decision today, Gan also ruled that Noor Dellhan had acted ultra vires on June 17, 2022 by taking action to prevent the march.
“Under Section 15, the district police chief can impose conditions but not a total prohibition, as this defeats the purpose of the amendments made to the Act.
“The amendments had, among other things, removed the prohibition against street protests. Street protests are now allowed, subject to reasonable conditions imposed,” he said.
Gan said that although Section 12(3) required the district police chief to consider concerns and objections from interested parties, such as the occupants of neighbouring premises, Noor Dellhan should have imposed restrictions or conditions instead of a total prohibition of the march.
He said that since the plaintiffs were allowed to hold the assembly to deliver speeches and present the memorandum to a representative of the Prime Minister at the car park, they had effectively achieved almost the entire objective of the assembly.
“There should be no award for special damages because those expenses had served their purpose at the assembly. The court should therefore award only nominal damages.”
Meanwhile, Mohammad Al-Saifi said he would seek instructions on whether to file an appeal.
Separately, Ezri said, “While some parts of the claim were not allowed, this decision reaffirms the fundamental right to peaceful assembly and serves as an important precedent in upholding constitutional freedoms.”
Lawyer New Sin Yew acted for the plaintiffs.
