Five lawyers, activist win suit against government over arrest

The court awarded R. Sivarasa, N. Surendran, Latheefa Beebi Koya, Eric Paulsen, Amer Hamzah Arshad and activist Johny Andu @ Abu Bakar Adnan each with RM10,000 in damages, and ordered the defendants to pay a total of RM60,000 in costs to all the plaintiffs.

On Dec 8, 2010, they filed a civil suit against then-Dang Wangi police deputy chief Superintendent Che Hamzah Che Ismail, inspector-general of police, home ministry and the government over their arrest, detention and prosecution.

In allowing their claim, High Court judge Datuk John Louis O'hara held that their arrests and detention by the defendants were unlawful.

O'hara said he had the opportunity to view the video and photographs taken from what transpired and took place during the incident.

"From the video, I find that first defendant Superintendent Che Hamzah had given conflicting, confusing and contradictory instructions over the hailer for the plaintiffs to disperse," he said.

Futhermore, he said, Che Hamzah was not decisive in his words over the disperse orders.

In his decision, the judge also found that the defendants had denied the plaintiffs' right to the legal access after they were arrested.

However, he found that the prosecution on the plaintiffs at the criminal Sessions Court was not made in bad faith and it was the Attorney-General's prerogative power under the Federal Constitution to prosecute them.

"The Attorney-General is doing his job and exercises his duty to prosecute them...this is not malicious prosecution," he said, adding that the plaintiffs had correctly named the parties in the suit.

On Dec 10, 2007, the six were charged with being in an unlawful assembly and failing to adhere to police orders to disperse, allegedly committed a day before (Dec 9, 2007) in front of Kamdar building in Jalan Tuanku Abdul Rahman.

On April 16, 2009, they were acquitted and discharged by the Sessions Court, without being called to make their defence on those charges.

Following that, they filed the suit seeking for a declaration that their rights under the Federal Constitution were violated and also claimed their arrest and detention were unlawful.

They also sought general damages, aggravated damages and exemplary damages and special damages, interest and cost.

In the suit, the six claimed they participated in and/or organised a peaceful rally and march, in conjunction with World Human Rights Day which was celebrated worldwide on Dec 10, every year.

They contended that they were subsequently allowed to continue to participate in the march within 10 minutes, but before the 10 minutes expired, they found that they were surrounded by a large group of police personnel.

They alleged the police then gave orders to disperse but while attempting to do so (to disperse), they were arrested.