By Rita Jong | The Malaysian Insider
Malaysian police acted unlawfully in arresting six human rights lawyers and activists who took part in the Human Rights Day Walk in 2007, the Kuala Lumpur High Court ruled in a civil suit today.
High Court judge Datuk John Louis O’Hara awarded each plaintiff RM10,000 in general damages. He also awarded costs of RM60,000.
The six were R. Sivarasa, N. Surendran, Latheefa Koya, Eric Paulsen, Amer Hamzah Arshad, and Johny Andu @ Abu Bakar Adnan.
The six filed a civil suit on December 8, 2010 against the then Dang Wangi deputy police chief, Superintendent Che Hamzah Che Ismail, the Inspector General of Police, the Home Ministry, and the Government of Malaysia.
O’Hara said: “This court has the opportunity to see videos and photographs of the incident and that helped the court tremendously in telling what actually took place on that day.
“The pivotal witness was Che Hamzah Che Ismail (first defendant). He was seen giving confusing, conflicting, and contradictory instructions over the loud-hailer for the participants of the walk to disperse.”
Che Hamzah was named as first defendant as he was the “ground commander” for the operation against the human rights day event, which led to the unlawful arrest and detention even though he had given permission for the participants to walk.
O’Hara said Che Hamzah had allowed the participants “10 minutes”.
“But he was indecisive in the instructions he gave,” said the judge.
“Based on his instructions (from the video recording), I find it led the plaintiffs to believe they had 10 minutes to disperse.”
Hence, he said he found the arrests were unlawful despite having allowed them to walk for 10 minutes.
“I also found that the plaintiffs were denied their right to legal representation during detention,” said O’Hara.
“As such, the plaintiffs were unlawfully arrested and consequently, their detention would also be unlawful.”
He also ordered the defendants to pay RM5,454 to Paulsen for his flight ticket from South Africa to return to Malaysia to attend court proceedings.
O’Hara, however, ruled that the Attorney General has the prerogative under the Federal Constitution to exercise his discretion to initiate proceedings.
He added that the prosecution against the plaintiffs in court was not done in bad faith.
The arrest and detention of the six had led to them being detained overnight in the police lock-up and charged at the Sessions Court the next day with unlawful assembly with the intention to cause public nuisance.
They subsequently initiated the civil suit against the defendants claiming a declaration that their constitutional rights had been violated and that they were unlawfully arrested and detained by the police.
Counsel Edmund Bon and Chan Yen Hui represented the six while senior federal counsel Nadia Hanim Tajudin and Lailawati Ali appeared for the defendants.
Bon said today’s decision was a “great victory for democracy and human rights”.
“This suit was filed to uphold freedom of assembly,” he said.
“This is a great victory for social activists for the right to freedom of assembly.”
Surendran said: “This judgment is an indictment to the police force.”
“We were unlawfully arrested and deprived of our legal rights. Our arrest was politically motivated to shut the mouths of oppositions and activists who were fighting for reform.”
Meanwhile, Paulsen said from the video, people could see the participants of the walk was about 100, but surrounded by some 500 police officers.