Lawyers for Liberty is extremely shocked and appalled at High Court Judge Harminder Singh’s decision today to strike out the wrongful arrest, detention and malicious prosecution civil suit brought by several human rights lawyers/activists against the police, the Home Ministry and the government over their arrest, detention and subsequent criminal prosecution during the World Human Rights Day walk in December 2007.
The judge decided that since the plaintiffs failed to name every police personnel responsible for their arrest, therefore the case should be struck out even though Che Hamzah Che Ismail, the OCPD of IPD Dang Wangi was named as the First Defendant. He had acted as the “Ground Commander” for the operation against the human rights day event which led to the unlawful arrest and detention even though he had consented for the participants to walk.
This unnecessary and preposterously strict requirement has undoubtedly set back the long and difficult struggle by human rights civil society and lawyers for greater police and government accountability, professionalism and competence. The judge instead of upholding and protecting the Constitutional and universal human rights of the individuals who were exercising their rights to freedom of speech, association and assembly on World Human Rights Day – chose to side with the oppressor and struck out the case in unholy haste and left the plaintiffs without any redress.
Such a decision certainly does not bode well for public perception and confidence in the judiciary and instead reinforces them, that when it comes to political cases or cases that concern the police and the government – look elsewhere as you cannot get justice from the courts.
Lawyers for Liberty
On 8 December 2010, six human rights lawyers/ activists, R.Sivarasa (also MP for Subang), N.Surendran, Latheefa Koya, Eric Paulsen, Amer Hamzah and Johny Andu filed the civil suit at the Kuala Lumpur High Court for their unlawful arrest and detention during the Human Rights Day walk on 9 December 2007 which was held to commemorate World Human Rights Day that is celebrated all over the world.
The lawyers/ activists named Che Hamzah Che Ismail, the OCPD of IPD Dang Wangi as the First Defendant. He acted as 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. Also named as co-defendants are Ketua Polis Negara, Kementerian Dalam Negeri and Kerajaan Malayia.
The unlawful arrest and detention led to them being detained overnight in the police lockup and charged on the next day at the KL Sessions Court (1) on exaggerated, malicious and frivolous charges under Section 143 and 145 of the Penal Code (unlawful assembly with the intention to cause public nuisance) and alternatively under Section 27 of the Police Act (unlawful assembly).
During the charge, Attorney-General Abdul Gani Patail had outrageously and in bad faith tried to object to the bail application on the ground that since the accused persons had not adhered to the police warning not to assemble and walk, they pose a threat to national security! Bail was however granted to the lawyers/ activists on a “personal bond” of RM2,000 without surety. On 16 April 2009, at the end of the prosecution’s case, the judge bravely discharged and acquitted the accused persons of all charges.
In addition to unlawful arrest and detention, the lawyers/ activists are also claiming that they were the victims of malicious prosecution as the facts and circumstances of the case do not support such charges at all, and that the police had falsely and maliciously implicated them.
As a result of all these acts, the lawyers/ activists are among other things claiming for a declaration that their constitutional rights have been violated and that the police have acted wrongfully and unlawfully.
They are also claiming exemplary and aggravated damages as it is right and fit to do so in this case as the police have clearly acted in manners that are oppressive, bothersome, intimidating, arbitrary, and frivolous and in breach of the Constitution, the law and procedures.