By M. Mageswari and Loshana K. Shagar | The Star
Five lawyers and an activist won a civil dispute against the police and Government over their arrest and detention during a walk to mark World Human Rights Day in December 2007.
High Court judge Justice John Louis O’Hara held that the arrests of R. Sivarasa, N. Surendran, Latheefa Beebi Koya, Eric Paulsen, Amer Hamzah Arshad, and activist Johny Andu @ Abu Bakar Adnan and their subsequent detention by the police were unlawful.
“I had the opportunity to view video recording and observed the photographic evidence which provided a pictorial enactment of what had actually transpired during the walk,” he said.
Justice O’Hara said that Commanding Officer Superintendent Che Hamzah Che Ismail, who was then Dang Wangi’s Acting OCPD, had given conflicting, confusing, and contradictory instructions to the plaintiffs, who were among the participants, when he asked them to disperse within 10 minutes.
Justice O’Hara ruled that the six were also denied their right to legal representation.
In ruling in favour of the six plaintiffs, Justice O’Hara said they had named the relevant parties in the claim.
On Dec 10, 2007, the six were charged for taking part in an unlawful assembly and failing to adhere to police orders to disperse, allegedly committed a day before (Dec 9, 2007) in front of a shopping complex in Jalan Tuanku Abdul Rahman.
On April 16, 2009, they were freed by a Sessions Court without entering a defence.
However, Justice O’Hara dismissed the claim on malicious prosecution saying that it was the prerogative of the Attorney General under the Federal Constitution to exercise his discretionary powers to institute proceedings.
“I did not find it (the prosecution) was initiated in bad faith. He (AG) is just doing his job,” he said in his judgment.
He awarded RM60,000 in damages for all plaintiffs and RM5,454 in special damages for Paulsen for his flight tickets from South Africa to appear for the 15-day trial.
He also ordered the defendants to pay 5% in interest for general and special damages from the date of judgment to its full settlement.
He directed the defendants to pay RM60,000 in costs.
He made the order after hearing evidence from 19 witnesses during the trial.
Speaking to reporters here, lead counsel Edmund Bon said it was a great victory for democracy and human rights, saying that the suit was filed to uphold freedom of assembly and not for money.
Surendran and Johny said it was a historic end and the ruling confirmed the right to assemble peacefully.
Paulsen said that the ruling affirmed that “you cannot abuse power as you like” for persons entrusted with power to carry out duties.
In their lawsuit, they sought a declaration that their rights under the Federal Constitution were violated.
In their statement of claim, the six claimed they participated in a peaceful rally and marched in conjunction with World Human Rights Day, which is celebrated worldwide on Dec 10 every year. The defendants were represented by Senior Federal Counsel Nadia Hanim Tajudin and SFC Lailawati Ali.