PUTRAJAYA (Jan 20): The government was unsuccessful in the Court of Appeal today in its bid to reverse the High Court ruling that the arrests of six lawyers and activists during the 2007 Human Rights Day Walk in Kuala Lumpur were unlawful.

The lawyers and activists, meanwhile, also failed in their appeal over the quantum of damages awarded by the High Court.

“Both appeals are dismissed with no order as to costs,” ruled Justice Datuk Zaharah Ibrahim who led the three-member panel.

The other two judges were Justice Datuk Ananthan Kasinather and Justice Datuk Abdul Aziz Abdul Rahim.

The government was appealing to overturn the decision in the civil suit in the High Court last July to award damages to the six lawyers and activists after finding that police acted “unlawfully” in detaining them during the 2007 gathering.

Senior federal counsel Nadia Hanim Tajudin submitted today that the arrest and detention was lawful under Section 23 of the Criminal Procedure Code.

Amongst others, she argued that the organisers knew that the gathering was unlawful when they did not obtain a permit for the gathering, in accordance to the then Section 27 of the Police Act.

“(The organisers had) committed two offences. First, they knew that there was no permit.

“Second, they failed to disperse at Jalan Tun Perak (when instruction to disperse was allegedly given). The video (evidence) had showed that,” she argued.

The walk was to proceed from the Sogo shopping complex at Jalan Tunku Abdul Rahman to the Bar Council building at Leboh Pasar Besar.

“They were stopped at Kamdar (from moving forward) then they were asked to stop at the CIMB Bank but (they) continued walking, clearly visible suspicion (of their intentions). That’s why the High Court judge has erred (in his judgment),” she said.

She added that it also follows that the detention was lawful as there was no bad faith or malice by the police when they six were detained.

The six activists and lawyers filed a civil suit on Dec 8, 2010 against the then Dang Wangi police district deputy chief Supt Che Hamzah Che Ismail, the Inspector General of Police, the Home Ministry and the Government of Malaysia.

The six are R. Sivarasa, N. Surendran, Latheefa Koya, Eric Paulsen, Amer Hamzah Arshad and Johny Andu @ Abu Bakar Adnan.

In his judgment last July, High Court Judge Datuk Louis O’Hara ruled that the police had acted unlawfully.

Justice O’Hara said Che Hamzah “was seen giving confusing, conflicting and contradictory instructions over the loud-hailer for the participants of the walk to disperse”.

Edmund Bon, the counsel representing the six activists and lawyers, argued that the judgment should stand as there was indeed confusion over Che Hamzah’s instruction.

He also argued that the police had initially granted “verbal permission” to allow the walk to continue on the day of the event.

“There was a verbal discussion with the OCPD where the OCPD said verbally, that the lawyers will be allowed to walk. We have video evidence,” he said adding that the verbal agreement fulfills the requirement under Section 27(1) of the Police Act.

Bon added: “Halfway at Kamdar, by order communicated by his superior, (Che Hamzah asked the lawyers to) disperse in 10 minutes”.

Bon argued that the instruction caused confusion as some took it to mean that they could continue walking for 10 more minutes as indicated by the video evidence.

He said most importantly, the police did not allow the full-length of the 10 minutes to play out and subsequently proceeding to arrest the lawyers even before the stipulated time was up.

In his judgment last July, Justice O’Hara had also awarded each plaintiff RM10,000 in general damages and also awarded costs of RM60,000.

The lawyers had appealed the quantum of award.

Bon argued that the sum awarded was not “consistent with damages for unlawful detention”.

He argued that his clients spent one night in Pudu Jail,which lacked in basic facilities, and a compensation of RM30,000 should be paid instead.

However, their appeal was dismissed by the Court of Appeal.

Speaking to reporters later, Paulsen said the quantum was immaterial but the court should have considered setting “an example that the police had acted in bad faith”.

“(The decision) is a strong rebuke against the police not to missuse their powers against the fundamental liberties…,” he said.

by Tarani Palani