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Rahman Daros
KUALA LUMPUR: Top cops in charge of police districts and stations in the Klang Valley have been ordered to check old records after a gay Malaysian man seeking refugee status in Canada claimed physical and sexual abuse under police detention five years ago.
The order came from Bukit Aman, a day after The Malay Mail frontpaged (on March 14) the allegation by Kulenthiran Amirthalingan at a Press conference in Ottawa on March 5, in which he appealed to the Canadian government to stay his March 6 deportation order to Malaysia.
The asylum-seeker, who has been in Montreal since 2003, begged the Canadian government to let him stay in Canada as he feared he could become a target of authorities here.
Sources told Weekend Mail that police at district levels have begun poring through old fi les since March 14, adding that Kulenthiran’s allegation could be linked to an old case in Selangor where a man was beaten up by an assailant claiming to be a policeman. It could not be determined which station the incident had occurred.
It is learnt that the search for the old cases will continue as there could be similar cases in other stations as well.
Deputy Inspector-General of Police (IGP) Datuk Ismail Omar, when contacted on Thursday, confi rmed the order but declined to elaborate, saying that investigations were ongoing.
On March 14, The Malay Mail reported that Kulenthiran had fi led a lastditch appeal with Canadian Immigration Minister Diane Finley, asking her to stay the March 6 deportation order to Malaysia as he feared persecution since he was gay.
At the news conference, which was also attended by New Democrat MP Thomas Mulcair, to request Finley’s intervention, Kulenthiran said: “I will be deported back to Malaysia, and I fear my imprisonment, so I would like to ask Miss Finley to let me stay in Canada.” Kulenthiran had also said that he feared for his life if he were to be sent back to Kuala Lumpur, where he claimed to have experienced discrimination, harassment and abuse for being gay.
He had applied for the refugee status on humanitarian grounds, claiming that his life was in danger because his homosexuality had made him a target of Malaysian police who detained him for fi ve days and abused him, physically and sexually. He claimed that he had been punched and pushed to the fl oor to force him to admit that he was gay.
In The Malay Mail report on Monday, IGP Tan Sri Musa Hassan questioned Kulenthiran’s motive in making the allegations as police did not simply arrest anyone unless an offence was committed.
“What was his offence (that led to his arrest)? That’s just it, if he did not commit any, how could the police arrest him?” he was quoted as saying.
Ismail, in echoing the sentiment, had expressed sadness that such accusations were hurled at the police.
He also said police would investigate Kulenthiran’s case and issue a statement once they had obtained details of the case.
The allegation also prompted PT Foundation chairman, Hisham Hussein, to question the allegations.
“We have not heard of any persecution of homosexuals in Malaysia,” he was quoted as saying in The Malay Mail on the same day.
Previously known as Pink Triangle Sdn Bhd, PT Foundation is a communitybased, voluntary, non-profi t organisation providing HIV/AIDS education, prevention, care and support programmes, sexuality awareness and empowerment programmes for vulnerable communities in Malaysia, including homosexual men.
Hisham said: “Of course, we do have laws against sodomy in the country, but it’s diffi cult to understand what exactly this person mean by persecution.
“Persecution seems to give the impression that it’s State-sanctioned action against someone because of their sexuality. To my knowledge, this doesn’t happen here.”
Giam Say Khoon
KUALA LUMPUR (Dec 10, 2007): Suaram (Suara Rakyat Malaysia)'s Civil and Political Rights Report 2007 has concluded that human rights in Malaysia are deteriorating, exemplified by the failure of institutions that are supposed to protect the rights.
Suaram executive director Yap Swee Seng said the deterioration was most glaring in the freedom of expression and assembly with police abuse and violent crackdowns on peaceful public assemblies.
Also contributing to the deterioration are the constant threats of the use of the Internal Security Act which allowed for indefinite detention without trial.
He said the drop in ranking of Malaysia in the Reporters Sans Frontiers' (RSF) press freedom index by 32 spots to 124th place and the increased of persecution of the bloggers with arrest and criminal prosecution despite the government’s promise not to censor the Internet had also become the trend of human rights deterioration.
“Corruption allegations against the police, including the inspector-general of police, the deputy internal security minister and former Anti-Corruption Agency director-general have left these institutions with little credibility,” he told reporters at the launch of the report in conjunction with International Human Rights Day today.
Yap also said there were little avenue for redress of human rights violations as the judiciary being the last bastion in defending the rights had heavily compromised its independence since the 1988 judicial crisis and an extension of the trend in the Lingam tape expose.
He said Malaysia Human Rights Commission (Suhakam) continued to lack the political will to stand firm on human rights principles against the government as evident in its initial unwillingness to conduct a public inquiry into the Batu Buruk police shooting incident in Terengganu on Sept 8. Two unarmed civilians were shot by a police officer in the rally organised by the Coalition for Clean and Fair Elections (Bersih).
The report also highlighted Suhakam commissioner Datuk Siva Subramaniam's statement that police did not resort to violence and acted professionally in dispersing Bersih's Nov 10 rally in the federal capital Kuala Lumpur.
The report pointed out that the statement had actually contradicted the commission's own recommendations in the "Bloody Sunday" incident, a rally held on May 28 last year to protest against the oil price hike that "peacful assemblies should be allowed to proceed without a licence".
Yap said: “If the (deteriorating) trend is not reversed, human rights will further deteriorate."
Suaram also presented its annual Human Rights Award with shared cash prize of RM1,500 to the Coalition against Healthcare Privatisation and the residents of Kampung Sungai Terentang in Rawang for championing the same human rights issue which was related to health.
Updated: 07:04PM Mon, 10 Dec 2007
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Nation
Saturday November 10, 2007
PENANG: He was a sales assistant in a pharmacy by day and a strikingly voluptuous and beautiful model by night.
On Thursday, Roslan Abdul Rahim, a 37-year-old transvestite, was found strangled in
Roslan: Was clobbered with a blunt object before being suffocated with a pillow
his Jalan Sungai flat here and jealousy is believed to be the motive.
He had breast implants but had yet to undergo a complete sex change.
It is believed that he was saving up to undergo sex-change surgery, which could cost up to US$15,000 (RM50,000) in Thailand.
George Town OCPD Asst Comm Azam Abd Hamid said police have arrested a man, 42, in Balik Pulau in connection with the murder at 1.30am yesterday.
“We found the victim's bank book at the man’s house. He has been remanded pending further questioning.
“A post mortem by forensic pathologist Datuk Dr Bhupinder Singh showed that Roslan was clobbered with a blunt object before being suffocated with a pillow.
“Our investigations showed that the killer was known to the deceased as there was no sign of forced entry into the flat.”
ACP Azam said Roslan was lying on his back with his hands and legs bound with wires when found, adding that there were cuts on his forehead and bruises on his body.
“We believe Roslan was murdered due to jealousy. We have also not ruled out robbery as a motive because the flat was ransacked.”
He urged those with information to contact Asst Supt Ibrahim Husin at 013 422 2424 /04-229 222 ext 1833 or the nearest police station.
General
October 18, 2007 18:42 PM
KUALA LUMPUR, Oct 18 (Bernama) -- For the first time, a former Internal Security Act (ISA) detainee won damages of RM2.5 million in a suit filed against the police and the government over his arrest and torture in 1998.
Abdul Malek Hussin, 51, was awarded RM1 million in general damages for wrongful arrest and detention, RM1 million in exemplary damages, RM500,000 in general damages for assault and ill-treatment and eight per cent interest from today and costs by the High Court Thursday.
Justice Datuk Mohd Hishamudin Mohd Yunus said Abdul Malek was entitled to the damages because his arrest at 10pm on September 25 1998 and 57 days of detention under the ISA were unlawful as they were done mala fide (in bad faith).
He said the interrogation carried out on Abdul Malek in Bukit Aman was political in nature for intelligence gathering for political purposes and had nothing to do with genuine concern for national security.
"The behaviour of the defendants is inhumane, cruel and despicable, as the plaintiff (Abdul Malek) was not just arrested and detained unlawfully for 57 days but was also subjected to a vile assault, unspeakable humiliation and prolonged physical and mental ill-treatment," Hishamudin said.
Abdul Malek, chairman of Malaysians for Free and Fair Election (Mafrel), a non-governmental organisation, claimed that he was ill-treated by the police.
He claimed that besides being slapped three times and blindfolded with his head forcibly covered with a T-shirt and forced to bend forward with his head between his legs in the car taking him the Kuala Lumpur police headquarters, he was also stripped naked in an air-conditioned room and a urine-smelling liquid was forcefully poured into his mouth, he said.
His private part was hit and an object pushed against his anus and he was made to stand in front of an air-conditioner and drenched with water for almost an hour, he added.
Abdul Malek, who is also former PAS executive secretary, filed a suit in March 1999 seeking RM30 million damages for alleged police brutality while under detention in connection with the detention of former deputy prime minister Datuk Seri Anwar Ibrahim for alleged involvement in activities that could threaten national security.
He was released unconditionally on November 21 1998. He named Special Branch police officer ASP Borhan Daud, the then Inspector-General of Police Tan Sri Abdul Rahim Noor and the Malaysian government as defendants.
Hishamudin said the award for exemplary damages was necessary to show the abhorrence of the court of the gross abuse of an awesome power under the ISA and that any gross abuse of that power must be visited with an award of exemplary damages to ensure that the extent of abuse was kept to the most minimal, if not eliminated completely.
"The Special branch department of the police force must not only be neutral but must also be seen to be neutral and non partisan. It must be above politics.
"The practice of torture of any kind is to be detested. The despicable conduct of the then Inspector-General of Police, Tan Sri Rahim Noor, was shameful and a disgrace. He had shown an extremely bad example to the thousands of men under his charge.
"The practice of torturing detainees by the police force can never and should never be condoned by the courts. The court must show its utmost disapproval in no uncertain terms," the judge said in his 41-page judgement which he took about 2 hours to read out in court.
Hishamudin also held that the police did not properly inform Abdul Malek of the grounds of his arrest as required under Article 5 (3) of the Federal Constitution and that Borhan had failed to satisfy the court with sufficient particulars of Abdul Malek's activities to justify the arrest and detention.
Outside the court, Abdul Malek who was present with his wife and children said: "I don't say that I'm happy. This is a matter of honour, not money. The ISA must be abolished. There is no reason for its existence in the country."
Abdul Malek's counsel R.Sivarasa said this is the first case where an ISA detainee had successfully won a legal suit for unlawful detention.
This showed that the court was prepared to step in when police abuse their powers.
Hishamudin, in his judgement, said that Borhan's bare assertion that Abdul Malek was directly involved in illegal assemblies which ended up with rioting and public order, was without particulars as no specifics were given on how Abdul Malek was directly involved.
On the other hand, Abdul Malek had furnished unchallenged evidence that at no time during his interrogation in Bukit Aman were any specific questions put to him that he was connected to any violent act of any kind or planning any specific violent act.
He said Abdul Malek gave detailed and unchallenged evidence of the content of the interrogations which he endured for 19 days in Bukit Aman relating, among others, to his relationship with Anwar and his role in the reformasi movement.
The judge said Abdul Malek had succeeded in proving on the balance of probabilities that he had been assaulted and this was supported by medical evidence.
The judge also said that from the time Abdul Malek was brought to the Kuala Lumpur police headquarters until he was handed to the Bukit Aman officers at 2pm on September 26 1998, he was never placed in a lock-up, breaching the Lockup Rules 1953 which required all prisoners to be placed in a lock-up after 6.30pm and no interrogation was to be conducted during these hours.
He said Borhan's version that there was a substantial block of two-and-a-half hours of unexplained time where nothing happened -- between 1.20am and 4am -- was highly questionable.
The police conduct of not keeping Abdul Malek in the lock-up and their contradictory answers invited the inference that they were covering up some unlawful act in relation to Abdul Malek, he said.
The conduct by the police in denying Abdul Malek access to a lawyer also showed mala fide on the part of the police, he added.
-- BERNAMA
NST Online » Local News
2007/10/19
KUALA LUMPUR: The High Court yesterday awarded RM2.5 million in damages to a former Internal Security Act detainee.
Abdul Malek Hussin, 51, is to receive RM1 million each for general and exemplary damages and another RM500,000 in aggravated damages for 57 days of detention in 1998.
Judge Datuk Mohd Hish-amudin Mohd Yunus in his judgment concluded that Mal-ek’s arrest and detention were unlawful as he had not been properly informed of the grounds of his arrest as required under the Federal Constitution.
“His case is more credible and ought to be accepted. The court was not given specifics of Malek’s activities during an illegal demonstration to justify his arrest and detention.”
He added that Malek’s details of his interrogation, where he was told by his interrogators not to file a habeas corpus application, showed it was political in nature and nothing to do with real concern for national security.
He said the police report made by Malek after his detention was also truthful.
“I regret to remark that the investigation carried out by Senior Assistant Commissioner 1 Hadi Ho Abdullah in respect to the plaintiff’s police report was nothing but a sham.”
Malek, who was detained from Sept 25 to Nov 21, 1998, filed a RM30 million suit against Assistant Superintendent Borhan Daud, the then inspector-general of police Tan Sri Rahim Noor and the government on March 16, 1999.
In his writ of summons, he alleged that after his arrest, the police had forced him to strip, and blindfolded and handcuffed him before assaulting him.
The court heard from Dr Vasantha Ponniah that she examined Malek and confirmed he sustained injuries.
Nation
Friday October 19, 2007
IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (CIVIL DIVISION)
CIVIL SUIT NO. S3(S5)-21-20-1999
Plaintiff
ABD. MALEK BIN HUSSIN
Defendants
(1) BORHAN BIN HJ DAUD
(2) KETUA POLIS NEGARA
(3) KERAJAAN MALAYSIA
GROUNDS OF JUDGMENT
In the present case, the plaintiff is claiming against the defendants for damages for the tort of false imprisonment as well as for the tort of assault and battery.
At the material time the plaintiff was employed in various capacities in a number of companies. The first defendant at the material time was a police officer with the rank of Assistant Superintendent of Police attached to the Special Branch Department, Police Headquarters (IPK), Kuala Lumpur. The second defendant is the Inspector-General of Police. The claim against the third defendant, that is the Federal Government, is for vicarious liability in respect of the torts of the first and second defendants.
Briefly, the plaintiff alleges that he was unlawfully arrested without a warrant of arrest by a group of Special Branch officers led by the first defendant at about 10 o'clock at night on 25 September, 1998. The arrest occurred in front of his house, as he was returning home and after he had just alighted from a car driven by a friend. He was not clearly told by the first defendant of the reason for the arrest. He was only vaguely told that he was arrested under the Internal Security Act. The plaintiff alleges that at the time of arrest he was handcuffed and given a hard slap thrice by the first defendant when he was unable to show the first defendant the location of his car. After the arrest, the first defendant and his men entered the plaintiffs house without a search warrant and seized several documents and items. He was then blindfolded and taken to the Ibupejabat Polls Kontinjen ('the IPK'), Kuala Lumpur, where in a room at the first floor he was stripped naked, humiliated, and subjected to prolonged mental and physical torture by the first defendant together with the then Inspector-General of Police, Tan Sri Rahim Noor, and several other police personnel. The ordeal lasted until 4 in the morning. He was denied medical treatment for several days. Only on 29 September that he was taken to see a doctor, Dr. Vasantha (SD7).
It is the allegation of the plaintiff that he was taken to Bukit Aman the following day after the arrest (26 September 1998) and at Bukit Aman he was interrogated for 19 days. All in all he was in police custody for 57 days until his release on 21 November 1998.
While in police custody he was denied access to counsel. He was also denied access to his family members. His family was allowed to see him only after he was kept in custody for 27 days, and throughout the entire 57 days under detention his family was allowed to see him only twice. Throughout these 57 days of detention he was kept under solitary confinement and, as said earlier, was interrogated for 19 days - interrogated not on matters affecting the security of the country but on political matters.
A. Whether the arrest and detention of the plaintiff were lawful
As I have ruled in Abdul Ghani Haroon v. Ketua Polls Negara & another application (No: 3) [2001] 2 CLJ 709, the cardinal principle is that every detention is, prima facie, unlawful and the burden of proof is on the detaining authority to justify the detention (see also R. v Home Secretary, ex parte Khawaja (1983) 2 WLR 321).
In my judgment, the arrest and detention of the plaintiff was unlawful for the following reasons:
(a) The plaintiff was never properly informed by the first defendant of the grounds of his arrest as required under Article 5(3) of the Federal Constitution.
(b) The first defendant failed to satisfy the Court with sufficient particulars and material evidence of the plaintiffs activities to justify the arrest and detention of the plaintiff under section 73(1) of the Internal Security Act, 1960.('the ISA').
(c) The arrest and detention of the plaintiff were mala fide.
Article 5 of the Federal Constitution states -
5. Liberty of the person.
(1) No person shall be deprived of his personal liberty save in accordance with the law.
(3) Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.
Section 73 (1) of the ISA reads -
73. Power to detain suspected persons.
(1) Any police officer may without warrant arrest and detain pending enquiries any person in respect of whom he has reason to believe -
(a) that there are grounds which would justify his detention under section 8; and
(b) that he has acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof.
It is to be observed that the above provision makes reference to section 8 of the ISA.
Section 8(1) provides -
8. Power to order detention or restriction of persons.
(1) If the Minister is satisfied that the detention of any person is necessary with a view to preventing him from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof, he may make an order (hereinafter referred to as a detention order) directing that that person be detained for any period not exceeding two years.
The plaintiff was not informed of his grounds of arrest
In respect of an arrest under the ISA, the legal and constitutional duty on the part of the arresting authority, as imposed by Article 5(3) of the Federal Constitution, is to inform the person arrested of the grounds of his arrest. This duty must be discharged in a manner that makes the said constitutional protection meaningful. This means that the detainee must be told briefly and in clear and simple language that he is being arrested because there is reason to believe that his activities (the gist of which should be intimated to the detainee) have been such as to justify his detention in order to prevent him from acting in a manner prejudicial to the security of the country (in the context of the present case, and for the sake of simplicity, I do not propose to touch on the other two alternative limbs as provided for under section 8 of the ISA). This, however, would only satisfy limb (a) of section 73(1). In addition, in order to also satisfy limb (b) of section 73(1), the detainee must also be told that there is reason to believe that he has acted or is about to act or is likely to act in a manner prejudicial to the security of the country. Here too, the detainee must be given, albeit, in a brief form, some idea in substance (that is to say, some essential particulars) in what way he has acted or is about to act or is likely to act in the manner alleged to be prejudicial to the security of Malaysia. It is my view that, in order to satisfy these two limbs/grounds, it does not suffice to merely parrot the provisions of section 8 or section 73(1) (b) without some indication to the detainee of the substance of what he has done or of what he is about to do or of what he is likely to do.
At this point, no detailed particulars need to be informed to the detainee but at least he will know in essence the reason he is being arrested. In this regard, I refer to my decision in the case of Abdul Ghani Haroon v. Ketua Polls Negara (No. 3) [2001] 2 CLJ 709.
In the present case, the plaintiffs evidence is that all he was told at the point of arrest (and even then he was told only after he asked) was that he was being arrested under the ISA. The first defendant, however, says as follows:
Saya memberitahu plaintif bahawa dia ditangkap di bawah Akta Keselamatan Negara 1960 kerana terlibat dengan kegiatan mengancarn dan memudaratkan keselamatan Negara.
He also says that after taking the plaintiff to the IPK, KL, and after lodging a police report "saya kemudiannya telah menyediakan dokumen [a form exhibited at page] of Bundle B] di bawah Perkara 5(3) Perlembaguan Persekutuan dan memberi penjelasan kepada plaintif tentang alasan tangkapannya".
Even assuming for the moment that I were to accept the first defendant's version, still, for the reasons that I have stated above, this cannot be sufficient compliance with the stipulation of Article 5(3) of the Constitution read together with section 73(1) of the ISA. His words do not convey to the plaintiff the essence of what the plaintiff is alleged to have done that his detention is necessary to prevent him from acting in a manner prejudicial to the security of Malaysia.
The first defendant also relies on the form at page 1 of Bundle B as compliance by the arresting office of the need to inform the grounds of arrest under Article 5(3). The form merely states -
Saya Borhan bin Hj Daud (G/7624) pada 25 September 1998 jam 2310 hrs telah memberitahu kamu Abdul Malik bin Hussin No: K/P: 560814-06-5467 sebab-sebab kamu ditangkap di bawah seksyen 73(1) Akta Keselamatan Dalam Negeri, 1960 iaitu:-
(a) Saya mempercayai ada alasan-alasan untuk menahan kamu di bawah seksyen 8 Akta Keselamatan Dalam Negeri, 1960; dan
(b) Saya mempercayai kamu telah bertindak dengan cara yang memudaratkan keselamatan Malaysia.
It is my judgment that, in the light of what I have said above, this form cannot be taken to be due compliance with Art. 5(3). In relation to compliance under section 73(l)(a), the form completely fails to meet the requirement as it mechanically parrots the words of the provision of section 73(l)(a) without showing that the arresting officer had directed his mind to the requirements of section 8. I had pointed out this requirement in Abdul Ghani Haroon (No. 3).
The form also fails in terms of the section 73(1 )(b) requirement, since the plaintiff was not given the slightest clue or intimation as to what he had allegedly done or was likely to do or was about to do that was prejudicial to the security of the country.
Since the plaintiff was never duly informed of the grounds of his arrest, as he was entitled to under Article 5(3) of the Constitution, it follows that 'die arrest was unlawful.
In dealing with Article 5(3) of the Constitution, I am mindful of the fact that I am presently dealing with the fundamental liberty of the citizens. The preservation of the personal liberty of the individual is a sacred universal value of all civilized nations and is enshrined in the Universal Declaration of Human Rights and Fundamental Freedoms of 1948. Article 5(3) of the Federal Constitution guarantees every person in this country of his personal liberty and protection from arbitrary arrest particularly arbitrary arrest by the State. As I have said in Abdul Ghani Haroon (No: 3), and I will say it again now, Judges are protectors of the fundamental liberties of the citizens and that this is a sacred duty or trust which Judges must constantly uphold.
The first defendant failed to satisfy the court with sufficient particulars and material evidence
In Abdul Ghani Haroon (No. 3). I had ruled that -
the arresting officer must, in his affidavit, furnish, not necessarily detailed particulars, but some reasonable amount of particulars., not only for the purpose of satisfying the court that he has some basis for the arrest but also to be fair to the detainee - to enable the detainee, who believes that he is innocent, to defend himself.
This approach has since been endorsed by the Federal Court in Mohatnad Ezam bin Mohd Noor [2002] 4 MLJ 449. In Mohamad Ezam bin Mohd Noor the Federal Court declared the correct law as requiring an objective test.
In the present case, the first defendant, therefore, has to provide sufficient material evidence and particulars to show the basis of his reason to believe that the detention of the plaintiff was necessary to prevent him from acting in a manner prejudicial to the security of Malaysia (the s. 73(l)(a) limb) and also to show the basis of his reason to believe that the plaintiff had acted (or was likely to act or was about to act) in a manner prejudicial to the security of the country (the s. 73(1)(b) limb).
In the present case, however, this was not done. Instead, all the first defendant could say in his evidence was the bare assertion that -
Plaintif terlibat secara langsung di dalam perhimpunan haram yang di mana setiap perhimpunan haram tersebut diakhiri dengan kacau bilau dan mengganggu ketenteraman awam.
No material particulars or evidence was ever produced to the Court to substantiate the above assertion. The dates and places of the alleged "unlawful assemblies" were never stated by the first defendant. It was never even shown by the first defendant that the so-called "unlawful assemblies" were actually unlawful in the first place. It was never shown by the first defendant that each and every one of the "unlawful assemblies" ended up with rioting and public disorder as he alleged. No specifics were ever given as to how the plaintiff was "terlibat secara langsung" in those assemblies or, if even he was, in what manner. I am not suggesting of proof beyond reasonable doubt but of the existence of material evidence and particulars to support a reasonable belief. Hence, the allegation by the first defendant was a bare assertion without particulars.
The plaintiff, on the other hand, furnishes unchallenged evidence that at no time during his interrogation in Bukit Am an were any specific questions put to him that he was connected to any violent act of any kind or planning any specific violent act. He gives detailed and unchallenged evidence of the content of the interrogations he endured for 19 days at Bukit Aman. In summary, it was about his relationship with Datuk Seri Anwar Ibrahim, the plaintiffs role in the reformasi movement, meetings between Nurul Izzah, Dr. Wan Azizah and Keadilan leaders with foreign political leaders, allegations about Datuk Seri Anwar Ibrahim's sexual activities and the plaintiffs relationship with the opposition party, PAS, and Dato' Fadzil Noor, and his views on the ISA. He was told by his interrogators not to file a habeas corpus application. The. nature of the interrogation shows clearly its political nature and that it was being done for collateral purposes i.e. intelligence gathering for political purposes and nothing to do with genuine concern for national security. This further reinforces the plaintiffs contention that the first defendant never had a basis at the material time of the arrest (or, for that matter, at any time thereafter) for a reasonable belief under section 73(1). In other words, the arrest was from the very beginning mala fide.
Whether the detention of the plaintiff was extended lawfully
In the light of what I have said above, it therefore follows that the arrest and detention of the plaintiff for 57 days was unlawful from the outset and that the plaintiff is entitled to the declaration prayed for in paragraph 14(a) of the statement of claim and to damages. The question of whether the detention of the plaintiff was extended lawfully as provided for under section 73 (3), therefore, does not arise and would be quite academic. However, for the sake of completeness, I shall in this judgment, nevertheless, deal with the issue.
In my judgment, the extensions of the detention of the plaintiff which were required after the first 24 hours of detention were not done in compliance with section 73(3) for the following reasons. Section 73 (3) stipulates -
(3) Any person arrested under this section may be detained for a period not exceeding sixty days without an order of detention having been made in respect of him under section 8:
Provided that -
(a) he shall not be detained for more than twenty-four hours except with the authority of a police officer of or above the rank of Inspector;
(b) he shall not be detained for more than forty-eight hours except with the authority of a police officer of or above the rank of Assistant Superintendent; and
(c) he shall not be detained for more than thirty days unless a police officer of or above the rank of Deputy Superintendent has reported the circumstances of the arrest and detention to the Inspector-General or to a police officer designated by the Inspector-General in that behalf, who shall forthwith report the same to the Minister.
I had dealt with the law on this issue extensively in Abdul Ghani Haroon (No: 3). There I held that the officer extending the detention had to be objective, independent minded and professional and to make his own judgment without fear or favour. He should exercise his own discretion without being directed or influenced by his superiors to extend the detention. He should also justify the extension by describing the purpose of the pending inquiries which must relate to the "reason to believe" under section 73(1). He should also explain plausibly - although not with a detailed minute by minute account - why the investigation could not be completed within 24 hours, or within 48 hours, or within 30 days, as the case may be. 1 had in that case opined that the purpose of section 73(3) (a) (b) and (c) was to provide built-in departmental safeguards and that the Court must, and indeed, has the power to evaluate the exercise of discretion in extending the detention.
In the present case, the SB Forms 28A signed by the officers extending the plaintiffs detention beyond 24 hours and beyond 48 hours, respectively, are exhibited before the Court. The officers involved were ASP Koh Seok Keng (SD9) and ASP Cheong Ah Mooi (SD10), and both gave evidence before this Court. It is my finding that both Forms 28A and the officers' evidence did not address the legal requirements of spelling out the purpose of the detention and relating it to the ''reason to believe" with sufficient particulars. Neither did they explain plausibly why the extensions were needed. It is clear from the provisions of section 73(3) that investigation is to be commenced immediately upon arrest and any extension beyond 24 hours, or beyond 48 hours, or beyond 30 days, as the case may, has to be authorized by the appropriate officer, as stipulated by the provisions. The investigating team is not supposed to sit back and do nothing for 24 hours. It would, therefore, be incumbent for an officer authorizing the first extension to find out what investigation had been carried out in the first 24 hours and what else needed to be done. SD9, however, did nothing of that sort and is only able to say that investigations had not begun without being able to explain why.
Similarly, SD10 is not able to inform the Court as to what investigations had been done in the first 48 hours after the plaintiffs arrest, or to say what else needed to be done. She merely says that the investigation was in its early stages and could not be completed in a short period. She, however, also says that she did not receive or read or see any report in the file of any investigation that had been done so far with the plaintiff. She acknowledges that her role was to ensure that there was a basis to continue investigations which had not been completed. However, her owfn evidence fails to disclose the particulars for a basis to extend the detention beyond 48 hours and up to 28 days. Both SD9 and SD10 appear to have acted in an automatic and rubber-stamping fashion by merely signing the Forms 28A without applying their minds as to the necessity and purpose of the extension.
The final extension was done by DSP Philip Savariappan (SD8) who during the trial did not reappear in Court for re-examination after the conclusion- of cross-examination. Exh. Dl 1 is a report to the Minister (SB Fonn 30) signed by SD8 in purported compliance with section 73(3)(c) to authorize a fanner detention of the plaintiff of more than 30 days. Section 73(3)(c) of the ISA stipulates that this report to the Minister must be made either by the Inspector-General of Police (the IGP) himself or by an officer designated by the IGP, SD8 in evidence claimed that he forwarded the report to the Minister pursuant to a 'delegation of powers' under section 73(3)(c). It is to be noted that paragraph (c) of subsection (3) does not provide for a delegation by the IGP of his functions: it merely provides for the designation of an officer by the IGP.
However, be that as it may, no documentary evidence was ever produced to the Court to show any instrument of 'delegation of powers' or that SD8 was the officer designated by the Inspector-Genera] under section 73(3)(c) to report to the Minister on the Inspector-General's behalf. In cross-examination when SD8 was asked as to the basis of the further detention, he was only able to say that he received a request from the Special Branch to extend the detention beyond 30 days and on that basis he signed and forwarded Dl 1 to the Minister. His answers also show that he acted in an automatic and rubber-stamping fashion. He confirmed that he had never refused a request for extension. He was unable to- explain as to why it was necessary to extend the detention when the plaintiff had asserted in his evidence that after the 19th day of detention interrogation ceased and he was left alone. What SD8 did in the present case was merely to send to the Minister the very report that was submitted to him by one DSP Sofian. There was no evaluation of DSP Sofian's report by him or by the IGP. In short, SD8 acted merely as a 'go-between' between DSP Sofian and the Minister. That is not the intention of subsection (3)(c) in respect of the role IGP or his designated officer.
B. Whether the plaintiff was assaulted during his detention
On this issue, upon a careful evaluation of the entire evidence before me, it is my finding of facts that the plaintiff has succeeded in proving to the Court on a balance of probabilities that he had been assaulted in the manner he alleges and by the individuals that he has named or identified.
The plaintiff alleges that he was first assaulted by the first defendant after the arresting team moved him from his home. He was arrested in front of his home after which a search of his home was done and various documents and a personal computer removed. He describes the assault in his evidence. He says he was slapped three times by the first defendant after he was unable to take the first defendant to the location of his (the plaintiffs) car. The plaintiff also said that he was blindfolded, and his head was forcibly covered with a T-shirt and forced to bend forward down between his legs in the car as he was taken to the IPK, Kuala Lumpur.
The first defendant denies these allegations. He only admits that he instructed L/Cpl Johari to place "cermin mala gelap" on the plaintiff, and that the purpose being "adalah bertujuan untuk menutup penglihatan plaintiff bagi mengelirukan plaintiff. The plaintiff then describes the circumstances of the second assault. In summary, he describes how in an air-conditioned room on the first floor of the IPK he was stripped naked, blindfolded, verbally abused and then physically assaulted. He was hit several times on the face and head. Most of the blows and kicks were directed at his body and legs. His legs were hit with a hard object. He fell over several times as a result of the blows. At one instance when his blindfold slipped, he identified one of the assailants as the second defendant in person - Tan Sri Rahim Noor.
The plaintiff also said that after the episode of physical assault, some urine-smelling like liquid was poured into his mouth while his mouth was forced open. Throughout the ordeal he was forced to remain naked. His penis was hit and an object pushed against his anus. He was made to stand in front of an air-conditioner and drenched with water - this treatment was done for almost an hour. The ordeal finally ended at about 4 a.m.
According to the plaintiff when the blindfold was removed he saw the first defendant and other Special Branch officers in plainclothes. The first defendant warned him not to make a police report regarding what had happened. The plaintiff also asked for medical treatment from the detaining officer but access to a doctor was only provided three days later on 29 September 1998. The first defendant's version is a complete denial. He says the plaintiff was never stripped or beaten or ill-treated in any manner. He says that all that happened in what is called the "bilik dokumentasi" on the 1st floor was that the plaintiff was kept in a room handcuffed whilst the documents and items seized from his home were checked and a list made up. This took about one and a half hours. The plaintiff was then photographed by Sgt Sam at Abd Hamid (SD4) at 4 a.m. on 26 September 1998 and then kept in the same room as he was earlier kept until handed over to Bukit Aman officers at 2 p.m. on 26 September 1998. The first defendant also says that Tan Sri Rahim Noor was never in the bilik dokumentasi.
In my judgment, based on the evidence before the Court, on a balance of probabilities, the plaintiffs case is more credible and ought to be accepted. I so hold for the following reasons.
First, the medical evidence shows that an assault took place. A careful scrutiny of Dr. Vasanma Ponniah's (SD7's) medical report shows that the plaintiff had complained of pain in his left foot, left thigh, left leg and lower back. He also complained of pain over his pelvis and his right eye. Dr. Vasantha has noted that the plaintiff had limited flexion of the spine due to pain. Similarly she noted bruises over both wrists of the plaintiff; a bruise over the postero-lateral aspect of the left thigh in the mid-thigh area, and another bruise on the postero-lateral aspect of the left leg. In her evidence in Court, Dr. Vasantha confirms that with the bruises there was swelling. It is to be noted that Dr. Vasantha only saw the plaintiff three days after he was assaulted.
Second, the plaintiff from the time he was brought to the IPK, Kuala Lumpur and until he was handed over to Bukit Aman officers at 2 p.m. on 26 September 1998, was never placed in a lock-up as required by the Lockup Rules. 1953. All prisoners have to be placed in a lock-up after arrest. This is mandatory after 6.30 p.m. (see rule 20 of the Lockup Rules). The Rules provide that prisoners could not be moved out of the lockup between 6.30 p.m. and 6.30 a.m. which must mean that no interrogation could be conducted during these hours. All movements of prisoners in and out of lockups are to be recorded. All this is for the protection of prisoners and also to prevent accusations against the police. The first defendant says that his only instruction was to arrest the plaintiff and take him to the IPK. He had no instructions to conduct any investigation and the only instruction was to prepare all documentations to hand over the plaintiff to Bukit Aman.
Third, there was no explanation given by the defence as to why the plaintiff was not taken to Bukit Aman immediately after the arrest. Fourth, according to the first defendant's version of events, there ij a substantial block of two and half hours of unexplained time where nothing happened on the first floor of the IPK, that is to say, between 1.20 a.m. and 4 a.m. Hence the first defendant's version of events is highly questionable. After finishing the senarai rampasan at about 1.30 a.m. there was no reason why the photographs of the plaintiff were not taken immediately and the plaintiff placed in a lock-up. After all, Sgt Samat (SD4), the photographer, was on duty all the time and available. Even the story of the time being occupied preparing the senarai rampasan has material and serious contradictions. According to the first defendant, he says that shortly after the plaintiff was taken to the Bilik Dokumentasi, Sgt Samat (SD4), Cpl Teoh and Cpl Sharif arrived on his instruction to help in the documentation and inspection of the documents seized from the plaintiffs house. He says he also instructed Sgt Samat to take photographs. However, Sgt Samat's evidence is completely different. He says that he received a call from the first defendant at 3.45 a.m. to take photographs of the plaintiff who was then in the Bilik Dokumentasi. As I have pointed out above, Sgt Samat's first witness statement (P7) states the time of this instruction as 4 a.m. Neither of these witness statements says anything about him being instructed to go to the Bilik Dokumentasi about midnight to help with the documentation, as claimed by the first defendant.
Then there is the evidence of D/Cpl Abdul Hamid bin Jaffar (SD3). He says categorically that only he and Insp. Wong (who was never called as a witness) helped the first defendant to prepare the senarai rampasan. He makes no mention of Teoh or Sharif. He explains the process in his evidence and says that it took about 1-2 hours. Cpl Yunus (SD2) also says that the senarai rampasan was compiled by the first defendant, Insp. Wong and Hamid (SD3). He explains that he and L/Cpl Johari (who was never called as a witness) kept guard on the plaintiff, while the first defendant, Wong and Hamid (SD3) prepared the list.
I am of the opinion that the glaring discrepancy between the first defendant's evidence and the evidence of the others shows that the versions are being concocted to present some kind of a chronology of events to cover the time between midnight and 4 a.m. It is a reasonable inference that none of these versions and, in particular, that of the first defendant reflects the truth. And all the more so when there is this gap in time between at least 1.20 a.m. and 4 a.m. which remains unexplained. It is fair to ask: What were these police officers really doing with the plaintiff in the early hours of the morning when he should have been placed in the lock-up? Their conduct of not keeping the plaintiff in the lock-up and their contradictory answers invite the inference that they were covering up some unlawful act in relation to the plaintiff.
Fifth, according to the investigating officer, SAC Hadi Ho (SD11), Tan Sri Rahim Noor (the IGP) was actually present in the IPK, Kula Lumpur building between 12 midnight (25 September) and 3 a.m. (26 September) and the time coincides with the time that the plaintiff allegedly was assaulted by the first defendant, Tan Sri Rahim Noor and others. However, according to SAC Hadi Ho (SD11) he was told by Tan Sri Rahim Noor that he was at the IPK for a meeting with the Director of Special Branch, Bukit Aman and the Deputy Director to receive a briefing from the Head of Special Branch, Kuala Lumpur. According to SAC Hadi Ho, Tan Sri Rahim Noor had said he had received information from the Special Branch KL that members of a group of silat exponents planned to gather in various parts of KL on 26 September 1998. SAC Hadi Ho also said that the Chief Police Officer of Kuala Lumpur, Dato' Kamaruddin, was not only not present at the meeting, he was in fact not informed of the meeting at all. I make a finding of fact that Tan Sri Rahim Noor was present at the IPK between 12 midnight and 3 a.m. but I am unable to accept that Tan Sri Rahim Noor was at the IPK for the reason that he had given. I am unable to accept for the following reasons:
a. Since the meeting involved the IGP, the Director of Special Branch, Bukit Aman and his Deputy Director, why should the meeting be held at the IPK, KL, when it is more appropriate protocol-wise and convenient to hold it at Bukit Aman?
b. Why was the meeting held at a very unusual time i. e. between 12 midnight and 3 a.m.?
c. Why must the meeting take so long i. e. almost three hours just to discuss only a single agenda, that is, pertaining to what the silat exponents intended to do?
d. Since the meeting involved the IGP and top officers from Bukit Aman, why was the CPO of Kuala Lumpur not present at, or not informed of, the meeting?
e. Considering that there was a very serious allegation made against Tan Sri Rahim Noor by the plaintiff and considering that he was present at the IPK at the material time, why wasn't Tan Sri Rahim Noor called by the defence to testify to rebut the allegation, if indeed the allegation is false?
Sixth, there is also a major and material contradiction between the first defendant's evidence in Court and what he told SAC11 Hadi Ho (SD11). As stated above, the first defendant's evidence is that his only instruction (received from SAC II Salamuddin, Head of Special Branch, IPK, Kuala Lumpur) was to arrest the plaintiff and take him to the IPK. He had no instruction to conduct any investigation and the only instruction was to prepare all documentations to handover the plaintiff to Bukit Aman. On the other hand, SAC II Hadi Ho (SD11), when asked in cross-examination if he had asked the first defendant why the plaintiff was not put in a lock-up, he said that the first defendant told him that he had to prepare documentations and also that he had to question the plaintiff on various matters pertaining to national security. He said the first defendant told him that he had questioned the plaintiff from time to time until 4 a.m. When asked whether he had asked to see the statements recorded by the first defendant in respect of this purported interrogation, he answered, "Dalam masa itu tidak relevan kepada penyiasatan saya". He also agreed that no interrogation should be done after 6 p.m. in view- of the provisions of the Lock-Up Rules. When asked if he had asked the first defendant why he had not postponed the interrogation of the plaintiff until the next morning, SD1I answered that he did pose the question. SD11 said the answer of the first defendant was that he needed to question the plaintiff on urgent matters regarding the reformasi movement based on information received by the Special Branch and also to ask The plaintiff to explain documents seized from his home. When it was put to SD11 that the investigation of the plaintiff was under Bukit Aman and not under the first defendant, SDll's response was that he was not sure of the arrangement. I accept the plaintiff counsel's submission that the above contradiction again shows that the evidence of the first defendant lacked credibility and seemed to be shifting substantially depending on the circumstances.
Seventh, there is the pertinent observation that the Kuala Lumpur Police Department (meaning SD11 and his immediate superior, SAC 11, Mat Zain Ibrahim) and the DPP's (Deputy Public Prosecutor's) office, having rejected the plaintiffs complaint in his police report, were, however, not willing to prosecute the plaintiff for lodging a 'false' report against the IGP and the first defendant (and the others). Initially, SD11 and his superior (SAC 11 Mat Zain) recommended to the DPP to NFA (meaning to take 'No Further Action') on the plaintiffs police report and, instead, to have the plaintiff charged under section 182 of the Penal Code for lodging a false police report against the IGP and the first defendant. According to SD11, the file was referred to the DPP's office on 29 July 1999. Although the DPP's office was very slow and did not respond even after 8 months, strangely, there was no follow up by the police. Not a single reminder was sent to the DPP's office. The file finally returned some nine months later on 27 April 2000 from the DPP's office to SD11's superior SAC II Mat Zain Ibrahim with a decision to "NFA" the case. In fact the respond of the DPP was -
Minit 5 dan keterangan di dalam kertas siasalan telah diteliti dan perkara ini telah dibincang bersama Y. Bhg. Daio' Timbatan Ketua Bahagian Pendakwaan. Setuju kes ini di NFA seperti.cadangan di dalam minit tuan di paragraph 4 alas alasan-alasan yang dikemukakan.
It is significant and disquieting to observe that the DPP (Puan Zauyah binti Loth Khan), having taken so much time (i. e. 9 months) over the matter, yet in her minutes did not refer at all to the recommendation of SD11 (and endorsed by his superior, SAC 11 Mat Zain) that the plaintiff be prosecuted for making a false police report. That recommendation was simply ignored. Also equally disturbing is the observation that despite the plaintiffs serious allegation against the IGP and the first defendant coupled with the fact that the DPP had ignored SDll's recommendation, yet neither SD11 nor his superior, SAC Mat Zain, considered it fit to refer the IP (Investigation Papers) back to the DPP's office for a direction. Now, in this regard there is no suggestion by the Senior Federal Counsel that there was an oversight on the part of the DPP's office; and Puan Zauyah was not called to give an explanation for the long delay in responding and the omission to direct. The submission of the Senior Federal Counsel is merely - and I think the learned Senior Federal Counsel, with respect, appears to have missed the point - that it is the sole discretion of the Public Prosecutor whether or not to charge the plaintiff for lodging a false report. Hence, here, several disturbing but pertinent questions arise -
(a) Why did it take nine months for the DPP to respond to SD11 's recommendations?
(b) Why didn't SD11 or his superior (SAC Mat Zain) send any reminder to the DPP's office when the DPP's office took such a long time to respond?
(c) Why did the DPP's office purposely ignore the recommendation of the police that the plaintiff be charged for making a false report against the IGP?
(d) Why were SD11 and SAC Mat Zain not serious in pursuing their recommendation with the DPP's office when a very serious and scandalous accusation had been formally made against their IGP and, instead, were quick to have the investigation file closed?
Based on the above facts, observations and queries, I think it is fair to draw an inference that both the DPP's office, SAC Hadi Ho and SAC Mat Zain well knew that there was a lot of truth in the plaintiffs police report against Tan Sri Rahim Noor and the 1st defendant (and the others). I regret to remark here that I am also making an inference that the investigation carried out by SAC Hadi Ho in respect of the plaintiffs police report was nothing but a mere sham.
<>Conclusion that assault did take place as alleged by plaintiff
It is my finding upon an evaluation of the evidence that the plaintiff was unshaken as a witness of truth in the witness stand. He stood firmly by his story which he had detailed in the document marked as P2 and in his police report on 13 March 1999. Senior Federal Counsel in his submission attempts to raise contradictions between the plaintiffs police report and his evidence in Court. It is my finding that a careful scrutiny of the report and the evidence in Court will show that the contradictions, if at all there are any, are trivial in nature and that the versions in P2 and in the plaintiffs police report do not differ substantially from the version given by the plaintiff in Court.
In the present case it is my conclusion that an analysis of the evidence as explained above including the medical evidence, the credibility of the evidence of the plaintiff, the events that happened on the first floor of ihe IPK on 25th and 26th September 1998, the unexplained gap of two and a half hours, the contradictions between the first defendant's evidence and the evidence of the other defence witnesses, the fact that the plaintiff was not put in a lock-up without any reasonable explanation and in breach of the Lockup Rules, all taken together show that the plaintiff has proven on a balance of probabilities that he was assaulted in the manner he has described.
Whether the plaintiff was denied access to a lawyer
It is not disputed that the plaintiff did not meet with any lawyer throughout the 57 days of his detention. In his evidence he says that he was not given the right of access to counsel throughout his detention. Not only that : prior to his first family visit on 21 September 1998 (even this was 27 days after his arrest!), he was warned not to file any habeas corpus application. He maintains that he did ask his interrogating officer at Bukit Aman during the first week of interrogation whether he could see a lawyer but he received a negative answer. Needless to stress here that access to a lawyer is a constitutional right, as provided for under Art. 5(3) of the Federal Constitution. Further, the plaintiff has asserted that his interrogation ended after 19 days. Even going by the defence position that access to counsel would only be granted at the completion of the investigation (which in my view should not have been the case), then, why was access to counsel not granted after 19 days? Such a refusal of access to counsel is clearly an unreasonable conduct and shows mala fide on the part of the police.
The declaration
For the reasons explained above, I grant the declaration set out in paragraph 14(a) of the Statement of Claim.
General damages for wrongful arrest and detention for 57 days
Encik Sivarasa, the learned counsel for the plaintiff, after referring to several case authorities, submits that the appropriate amount for an unlawful detention of 24 hours in Malaysia would be in the region of RM25,OOQ to RM30,000. He concedes that an award for a period of 57 days should not be a simple arithmetic calculation but would also have to be adjusted. The learned counsel submits that a simple mathematical approach gives 57 multiplies by (say) RM25,000 which amounts to RM1,425,000. He, however, submits that an appropriate amount would be about half of that sum, that is to say, RM700,000. In my judgment this is a reasonable proposition.
Encik Sivarasa further submits that there are a number of significant aggravating factors in the treatment of the plaintiff during the detention as detailed above in this judgment. The aggravating factors are the breach of the plaintiffs constitutional and fundamental rights, including right of access to counsel; the denial of access to family members within a reasonable time and frequency of the visits; the length of the period of solitary detention; the interrogation for 19 days on matters not related to internal security; the repeated assault of being handcuffed and blindfolded each time the plaintiff was moved from his cell, which is a distressing experience; and the injury to the plaintiffs reputation as a consequence of the arrest and detention. The learned counsel submits that the total amount of general damages for false imprisonment taking into account such aggravating factors should be increased to RM1,500,000. I am in agreement that there are aggravating factors and that the amount of RM700,000 should be increased taking into account these aggravating factors. But I think increasing the amount of RM700,000 to RH1,500,000 is rather too excessive. In my judgment, taking into account the aggravating factors, the award for false imprisonment should be increased from RM700,000 to RM1 million.
General damages for the assault and ill-treatment
In my judgment, on the evidence detailed above on the assault, taking into account the aggravating factors, an appropriate amount for the vile treatment meted out to the plaintiff, physical injuries suffered, the pain and suffering and the mental anguish and humiliation, the delay in giving medical treatment etc, the plaintiff should be awarded the sum of RM500,000.
Exemplary damages
In my judgment the circumstances of this case are such that it is appropriate for an award of exemplary damages. In the landmark case of Rookes v. Barnard [1964] AC 1129, Lord Devlin stated that one of the categories of cases in which an award of exemplary damages may be made is a case that involves oppressive, arbitrary or unconstitutional action by the servants of the Government.
In the present case, the behavior of the defendants is inhumane, cruel and despicable, as the plaintiff was not just arrested and detained unlawfully for 57 days but was also subjected to a vile assault, unspeakable humiliation, and prolonged physical and mental ill-treatment. The Special Branch Department of the Police Force must not only be neutral but must also be seen to be neutral and non partisan. It must be above politics. The practice of torture of any kind is to be detested. The despicable conduct of the then Inspector General of Police, Tan Sri Rahim Noor, was shameful and a disgrace. He had shown an extremely bad example to the thousands of men under his charge. The award of exemplary damages is necessary to show the abhorrence of the Court of the gross abuse of an awesome power under the Internal Security Act. Any gross abuse of this power (which clearly is the case here), therefore, must be visited with an award of exemplary damages to ensure that the extent of abuse is kept to the most minimal, if not eliminated completely. The practice of torturing detainees by the Police Force can never and should never be condoned by the Courts. The Court must show its utmost disapproval in no uncertain terms. Finally, access to a lawyer is one of the fundamental safeguards thai a person has under the Federal Constitution that ensures he is not kept in incommunicado detention and abused. Access to a lawyer ensures that the treatment of the detainee has some transparency and that he is accorded due process as stipulated by the Constitution and the law. Denial of access to counsel allows detaining authorities that act mala fide to do as they wish with a detainee including placing obstacles to legal recourse. In many instances when access to counsel is finally accorded to the detainee, it is usually too late for him to take meaningful legal recourse as the evidence has disappeared or, more importantly, the mischief or injury that the access was supposed to prevent i.e. physical and mental ill-treatment etc. has already happened.
In my judgment, in the circumstances of the present case, an award of RM1 million as exemplary damages, is appropriate. I am awarding interest at the rate of 8 percent per annum on all the above sums to run from the date of judgment until realization; and I order that all costs of these proceedings be paid by the defendants to the plaintiff
Judge, High Court (Civil Division) Kuala Lumpur
Date of Decision: 18 October 2007
Date of written grounds of judgment: 18 October 2007
Encik R. Sivarasa and Cik M. Moganambal (Messrs Daim & Gamany) for the plaintiff Encik Kamaludin bin Mohd Said, Senior Federal Counsel, Encik Iznan bin Ishak, Senior Federal Counsel, and Encik Mohaji bin Selamat, Federal Counsel (Attorney-General's Department) for the defendants
Nation
Friday October 19, 2007
By CHELSEA L.Y. NG
KUALA LUMPUR: In an unprecedented move, the High Court awarded RM2.5mil in damages to an ex-ISA detainee for having been unlawfully arrested, detained and beaten up while in police custody in 1998.
High Court Judge Hishamudin Mohd Yunus granted the award after ruling that Abdul Malek Hussin had succeeded in suing former Inspector-General of Police Tan Sri Abdul Rahim Noor, a police officer and the Government for the misdeeds done to him during the detention.
“The behaviour of the defendants is inhumane, cruel and despicable, as the plaintiff was not just arrested and detained unlawfully for 57 days but was also subjected to a vile assault, unspeakable humiliation, prolonged physical and mental ill-treatment,” the judge said in his judgment yesterday.
He added that the arrest and detention were unlawful because Abdul Malek was not told of what he had done or intended to do that would pose a threat to national security.
Legal victory: Abdul Malek and his wife Faridah Ishak, 43, leaving the High Court in Kuala Lumpur yesterday after he won RM2.5mil in damages for unlawful detention. With the couple are two of their four children, daughters Nurul Zahra, 11, and Sajdah Zahra, 16.
Apart from ruling that the arrest and detention smacked of mala fide, the judge also said they were done for political purposes rather than for the sake of national security.
The case is the first where a former ISA detainee has won millions in damages.
In 1996, a former ISA detainee, Guracharan Singh, won his case for unlawful detention but was awarded nominal damages of RM1.
Yesterday, when Justice Hishamudin spoke of the inhumane acts, he was referring to Abdul Malek’s account of how Special Branch police officer Asst Supt Borhan Daud had slapped him thrice during the arrest at 10pm on Sept 25, 1998, blindfolded him and taken him to the police contingent headquarters here.
At the headquarters, Abdul Malek had told the court, he continued to be blindfolded and was led into an air-conditioned room before being stripped naked, verbally abused, hit in the face and body as well as having urine-like liquid poured into his mouth which was forced open.
He had testified that he knew Abdul Rahim was one of those who assaulted him in that room because at one point his blindfold slipped and he was able to see his assailants.
Justice Hishamudin said the practice of torture of any kind was to be detested.
“The Special Branch Department must not only be neutral but must also be seen to be neutral and non-partisan. It must be above politics,” he said when awarding RM1mil in exemplary damages.
“The despicable conduct of the then IGP was shameful and a disgrace. He showed an extremely bad example to the thousands of men under his charge,” he said.
The judge stressed that the award of exemplary damages was necessary to show “the abhorrence of the court of the gross abuse of an awesome power under the Internal Security Act.”
“Any gross abuse of this power, therefore, must be visited with an award of exemplary damages to ensure that the extent of abuse is kept to the most minimal, if not eliminated completely.
“The practice of torturing detainees by the police can never and should never be condoned by the courts. The court must show its utmost disapproval,” said Justice Hishamudin.
He said he believed Abdul Malek's story rather than that of the police officers because there were glaring discrepancies, as if it was “being concocted to present some kind of chronology of events” to cover up what had happened in the first four hours of Abdul Malek's detention.
Apart from the exemplary damages, the judge also awarded general damages of RM1mil and RM500,000 for false imprisonment and the assault and ill-treatment, respectively.
Abdul Malek, 51, is now the chairman of a non-governmental organisation called Malaysians For Free and Fair Elections.
Tuesday, 25 September 2007, 03:33pm
Datuk Shahrir Abdul Sama©Malaysiakini (Used by permission)
by Beh Lih Yi
Oct 10, 1988. What was to have been a special morning for veteran parliamentarian Shahrir Abdul Samad ended with him being penalised for defiance.
Just 46 days earlier, Shahrir had won the Johor Baru parliamentary seat as an Independent in a by-election, with a whopping majority of 12,613 votes. He had held the seat for three terms since 1978, but on an Umno ticket.
As the swearing-in ceremony got underway at Parliament house, he stunned the House by refusing to stand when he was called to take the oath of office before Speaker Mohamed Zahir Ismail. He was ordered to leave the House.
Sixteen days later, Shahrir returned and took his oath before Zahir so that he could keep the seat and perform his duties as a member of Parliament.
His refusal to take the oath the first time was an expression of how strongly he feels about judicial integrity, he recalled in a two-hour interview last week at his office in Sri Hartamas, Kuala Lumpur.
Zahir, a former high court judge, was on a six-member tribunal that had found then Lord President Salleh Abas guilty of misconduct earlier that year and recommended his dismissal.
“I don’t think it was a right thing to do (to sack Salleh),” said Shahrir, now 57.
“To do it (impeach Salleh) without having all the necessary strong reasons to make that move, that’s the failure of the system - because once you damage it, it’s not easy to get it back...”
In 1988, then premier Dr Mahathir Mohamad had Salleh tried by a special tribunal on charges of misconduct, for questioning constitutional amendments that seriously eroded the powers of the judiciary.
Two of five Supreme Court (now known as the Federal Court) judges - George Seah and Wan Sulaiman Pawanteh - who had ruled that the tribunal was convened unconstitutionally were sacked along with Salleh after being found guilty of misconduct by the tribunal.
Return to Umno
The protest was typical of a politician often deemed a maverick because of his outspoken ways and independent thinking.
Having been trained in economics and statistics, he then earned a Master’s in Business Administration. From 1983-1987, he helmed the federal territory and welfare ministries respectively and was generally seen as a potential high flier in Umno politics.
In 1987, infighting saw the party being split into Team A and B and then deregistered after being declared illegal in a court ruling.
A supreme council member at the time, Shahrir was in Team B camp led by Tengku Razaleigh Hamzah. However, he was left out of the new Umno pro-tem committee along with seven other council members.
Amidst the crisis, Shahrir resigned as MP and contested the ensuing Johor Baru by-election as an Independent.
Shahrir returned to Umno in 1989 but took a back seat until his return to full-time politics in the 2004 general election, when he retained the Johor Baru seat.
‘Ridiculous stage’
So what has changed within the judiciary two decades after his one-man protest in Parliament?
Shahrir said he believed that the repercussions of the 1988 judicial crisis are still being felt today, even coming to the “ridiculous stage” where people can correctly predict the outcome of court cases.
“There are some judges who think they still have to be over-conservative or over-protective of the government, rather than justice,” he argued, quipping that they may perhaps think they are still in 1988.
Something has to be done, he said, and it needs to come from judges themselves.
“It’s really more of a problem of culture and personality, which has caused the judiciary to be held in a position of some disrepute. I hope that this culture can be dismantled if the personalities who are now occupying the judiciary understand that things have to change and try to go back (to how it used to be).”
Asked to comment on revelations in an explosive video clip on alleged ‘judicial appointment- fixing’, Shahrir said the matter has to be investigated.
The eight-minute edited clip, said to be recorded in 2002, shows senior lawyer VK Lingam talking on the phone allegedly with Chief Justice Ahmad Fairuz Sheikh Abdul Halim - then the chief judge of Malaya - about judicial promotions, among other matters.
(Ahmad Fairuz is said to have denied any involvement in the matter, while Lingam has not been available for comment as he is said to be abroad.)
“If (mentions of) fixing cases are bad enough, fixing appointments will be worse,” Shahrir noted.
He was not too optimistic that the problems within the judiciary can be fixed any time soon.
“Once the system is tampered with for some frivolous reason, the repairs may take a long time to happen. You will need another generation (to see the effects),” he added.
Q&A: ‘No strong reasons to sack Salleh’
Beh Lih Yi
Two decades after Johor Baru MP Shahrir Abdul Samad put up a one-man protest in Parliament over the sacking of Lord President Salleh Abas, has the judiciary gone backwards or forwards?
He shares his take in the first of a three-part interview.
Malaysiakini: You feel very strongly about the judiciary - so strongly that you refused to take the oath as a member of Parliament in 1988 before the Dewan Rakyat Speaker Mohamed Zahir Ismail because he had sat on the tribunal that recommended the sacking of Salleh Abas as lord president. You were asked to leave the House because of that. Tell us what happened.
Shahrir: I feel very strongly about the judiciary. I don’t think it was a right thing to do (to sack Salleh). To impeach the man for what? So I didn’t get up to take my oath before Tun Zahir because he was a member of the tribunal, I did my part. When they called my name, I didn’t get up, then they told me to go home - ok-lah, it was a protest.
But you did take the oath 16 days later.
I had to, or I would have lost the (Johor Baru) seat and (let down) my voters.
What has changed since then, in relation to the judiciary? Some say things have become worse.
The (move to) impeach Salleh, to me, was a very serious step. To do it without having all the necessary strong reasons to make that move, that’s the failure of the system - because once you damage it, it’s not easy to get it back....
I believe there are some judges who think they still have to be over-conservative or over-protective of the government, rather than justice. This repercussion is unfortunate but I supposed we have to wait and see whether (there will be) changes after this. Maybe judges don’t know what’s happening because by the nature of the judiciary, they don’t get involved (with other matters) and just look into the law, so they think they are still in 1988. (Laughs)
How can this problem be fixed apart from appointing the right people to the Bench?
It’s not very easy - (how do we do this) without Executive interference, without parliamentary interference....How do we fix it? (Laughs)
Does it all boil down to the prime minister being too powerful?
Not, the prime minister is trying not to interfere, I blame him for not interfering sometimes.
What is your view on setting up a judicial commission to deal with appointment of judges?
(The problem is) who will get on the judicial commission?
Would you support the idea?
Maybe it will not be a permanent path but it’s (a way) to get the system back [...] It’s really more of a problem of culture and personality, which has caused the judiciary to be held in a position of some disrepute. I hope that this culture can be dismantled if the personalities who are now occupying the judiciary understand that things have to change and try to go back (to how it used to be).
It’s imperative (to have) an independent and strong judiciary. It’s something necessary for the country, particularly (to have a body) that is clean and fearless in making decisions - because it has come to a quite ridiculous stage where people can predict the decisions that are being made.
Are you surprised to hear about the video clip on alleged fixing of judicial appointments?
I would like to see the matter being investigated (to find out) what actually happened. Nobody knows - it may just be a little ‘show’ by the lawyer in the clip. The Bar Council needs to call the concerned lawyer and get his explanation to check on what happened, this is what the council can do.
If (mentions of) fixing cases are bad enough, fixing appointments will be worse.
You are saying everything in the judiciary has gone wrong since the sacking of Salleh?
Yes, once the system is tampered with for some frivolous reason, the repairs may take a long time to happen. You will need another generation (to see the effects).
15 May 2006
The Star
Rape can occur when a woman places too much trust in the spiritual healer and is willing to do anything to be cured, said former Jakim chief assistant director Uztaz Abdul Hamid Yunus.
“Sometimes a girl would go to the bomoh to ask for a good husband. And the bomoh would suggest that the girl serah diri (give herself) to him. Or he might ask her to take a midnight bath or get her to take off her clothes.
“Bomohs are men and there are bad ones who might cast their charm on women patients so as to get their way with them,” he said.
Parents, he added, sometimes unwittingly left their young daughters alone with the bomohs, without realising the danger involved.
Jakim’s assistant director (research) Mohd Aiman Ma’sod said some parents were deceived by bomohs who portrayed themselves in public as religious, devout and sincere men.
Like most Malays, Abdul Hamid has crossed paths with bomohs on numerous occasions – not just at work but also at a more personal level.
He once sought the help of a well-known bomoh urut (massage bomoh) in Segamat, Johor, to treat his daughter who was unable to walk after a car accident.
“The doctor’s X-ray showed no broken bones. But my daughter was in so much pain and had to be brought home in a wheelchair. The bomoh gave her some oil and asked her family to massage her with it three times a day for a week and to return to see him a week later.”
The bomoh told Abdul Hamid his daughter’s backbone had shifted alignment and was pressing onto the nerves, which could result in paralysis.
“When we went back the second time, the bomoh massaged my daughter three times with the oil and told her to stand up. She did and even walked to the car,” he added.
According to the Women's Aid Organisation (WAO), a bomoh was seen by society as a spiritual healer and thus put immense trust in him.
“It is not surprising to place trust in someone who is viewed as having more knowledge and healing powers. And the fact is that many bomohs do have knowledge of herbs, plants and rituals that do heal,” said WAO executive director Ivy Josiah.
As for rape by bomohs, she said this was not confined only to the traditional healers.
“Men who commit rape may include bomohs, teachers, engineers, doctors or bus drivers. But because of the intimate nature of healing in massage therapy that some bomohs do, it would be best that any close contact be in the presence of another person.”
Monday, May 15, 2006
By SHAHANAAZ HABIB
The Star
* Spiritual healing has become big business as more people seek bomohs and mediums for help
* Victims have been swindled of their hard-earned savings and valuables
* Women have been raped on the pretext of being cured of ailments
* Unregulated, the “profession” has become a medium of abuse
* Authorities urged to register and monitor activities of bomohs and mediums
Their help is sought for all kinds of problems – when illnesses refuse to go away, one's fortune is down or even in choosing a life partner.
When other remedies do not seem to work, Malaysians have a tendency to turn to their resident spiritual healers like the bomohs and mediums.
Spiritual healing has become a thriving industry but unregulated, it has also become open to abuse.
A number of rape cases have been reported – the most recent being a woman patient who had to sleep with a medium 51 times to rid her illness and paying him between RM20 and RM50 for each “ritual”.
There have also been numerous reports of bomohs, mediums or bogus priests making off with large amounts of cash, valuables or jewellery after promising to make their clients well or prosperous.
In the wake of such abuses, the Government has been urged to set up an authority to monitor the activities of these “practitioners”.
Former Malaysian Islamic Development Department chief assistant director Uztaz Abdul Hamid Yunus suggested that the regulating body be a part of the Islamic authority or come under the Health Ministry.
“If the authorities are able to register those qualified to deliver Islamic lectures, then there is no reason they can't do the same with practitioners of traditional medicine.
“This is a Government responsibility. They shouldn't wait until Muslims seek treatment with sorcerers and the belief system crumbles,” he said.
He added that people sought bomohs because they were impatient or ignorant.
“They don't bother about aqidah (Islamic belief system) as long as they get the desired results. This is a huge mistake,” said Abdul Hamid.
Islamic scholar Uztaz Ismail Kamus believes that it is haram to let a male bomoh massage a female patient, even in the presence of her family members.
“A massage involves touching parts of the body. A male massaging a female patient is only allowed in situations of emergency where there is no other female available who could do it.”
MCA Public Services and Complaints Department head Datuk Michael Chong has come across many complaints against “spiritual” practitioners in the course of his work.
“One medium told a woman that she could be 'cured' of uterus cancer but she had to have sex with him.
“In another case, a medium had sex with both mother and daughter who sought his help.
“It does not make a difference whether the women are educated or illiterate. Sometimes, I am surprised that the victims landed themselves in such situations,'' he added.
While some cases are reported, it is believed that there are many more victims who chose to suffer in silence due to the fear of embarrassment.
The Star
May 15 2006
There are genuine mediums but there are also bad ones.
And the black sheep usually trick their victims using the same modus operandi, said MCA Public Services and Complaints Department head Datuk Michael Chong.
Such a medium, he said, would use scare tactics like telling the victim a powerful spell had been cast on her and she would suffer from serious illnesses or even die if she did not counter it.
“If the woman was still not convinced, the medium would claim that her family members would be affected, too. This is where the victim would panic and consent to his demands,” he added.
Another method used by the medium, said Chong, was to “invest” in the victim by offering his services for free at first.
If the client was satisfied with the results, the medium would start asking for money to keep the so-called bad spell out and the good energy in.
“Sometimes, sex is the reward. The medium would claim that a deity or his sifu (master) had given him instructions and as a disciple, he was only following the command. So, the medium gets both money and sex,” Chong said.
Some mediums used the “aura” or spiritual cleansing tactic.
“When a medium cleanses a client's body with 'holy water,' the victim often will have to go naked,” he said.
Chong said it was difficult for the authorities to act in many cases as such mediums took their clients' money in cash form and there was no proof.
As for those tricked into sex, the medium would claim the woman was a willing partner.
However, if victims came forward together to lodge their complaints, the police could use the Emergency Ordinance to restrict a medium to a particular place where he could no longer operate, Chong said
Sep 25, 07 2:30pm
A former Chief Judge of Malaya will head a three-member independent panel to probe and determine the authenticity of the VK Lingam video clip, said Deputy Prime Minister Najib Abdul Razak today. 
The government has appointed Haidar Mohd Noor (photo) to look into the eight-minute edited video that showed senior lawyer VK Lingam talking on the phone, apparently brokering the appointment of judges with Chief Justice Ahmad Fairuz Sheikh Abdul Halim.
National Service Council chairperson Lee Lam Thye and former Court of Appeal Judge Mahadev Shankar are the other two members of the panel. Both were also former commissioners of the Human Rights Commission of Malaysia.
Haidar retired from his position in 2004 and is currently the Bumiputra-Commerce Bank chairperson.
Najib's announcement comes after pressure from opposition and rights groups for an investigation into the issue and ahead of a planned rare protest march by lawyers tomorrow.
He said that the three panel members had accepted their appointments and would soon start investigating the matter with the support and cooperation of all agencies concerned.
“This decision was made as the allegations and speculations on the video clip can arouse doubts on the credibility and integrity of the country’s judicial system,” he told a press conference this morning in Putrajaya.
Their findings, expected to be known in a few weeks, would be made public later, he added.
To a question if the people implicated in the video would be called up by the panel, Najib said the panel would do whatever necessary.
No royal commission
He also reiterated the government’s stand that a royal commission of inquiry would not be set up to investigate the matter.
He added that the government felt the three-member panel was sufficient to look into the matter.
Previously many quarters, including opposition parties and the Bar Council, had urged the government to set up a royal commission of inquiry to look into the state of the judiciary in light of this latest scandal.
The Bar Council is planning a march from the Palace of Justice in Putrajaya to the Prime Minister’s Department tomorrow morning to submit a memorandum to demand the setting up of a commission of inquiry.
When asked to comment on the Bar Council’s decision to stage the protest march, Najib said it was up to the Bar Council and the authorities to decide on such actions.
Last week Prime Minister Abdullah Ahmad Badawi himself had ruled out the setting up on such a commission, stating that a police investigation on the matter was sufficient.
De facto law minister Mohd Nazri Abdul Aziz had issued a denial on behalf of Ahmad Fairuz in relation to the explosive ‘Lingam tape’ revelations on Sunday.
However Ahmad Fairuz, who was the Chief Judge of Malaya in 2002 when the recording was said to have been made, has remained silent on the issue. He had issued a two-paragraph ‘No comment’ statement to Malaysiakini last Friday.
Sep 26, 07 10:44am
The police have barred seven buses packed with lawyers and members of the public from entering Putrajaya this morning.
The buses were headed towards the Palace of Justice in the administrative capital where the passengers were to take part in a protest march calling for a royal commission of inquiry into judicial integrity.
Malaysiakini learnt that some private vehicles too have been stopped from entering Putrajaya.
The march is organised by the Bar Council in the aftermath of the latest scandal to hit the judiciary - a video clip showing a senior lawyer brokering the appointment of judges with another person on the telephone.
The context of the conversation indicated that the person at the other end was the current Chief Justice Ahmad Fairuz Sheikh Abdul Halim.
The march from the Palace of Justice to the PM’s Department was scheduled to start at 11am.
Those stranded - numbering about 200 - are now walking to the Palace of Justice, which is located about five kilometres away from where they have been stopped.
Eyewitnesses say they are carrying banners and shouting slogans along their way.
Meanwhile at the Palace of Justice a crowd numbering about 1,500 - majority of whom are lawyers - have started gathering since early morning.
There is also a large presence of police personnel, including from the Federal Reserve Unit.
Sep 26, 07 11:51am
Having defied a police order not to march, some 1,500 protesters are now at the Prime Minister's Department where their representatives are handing over a memorandum to an official.
The protesters took about 30 minutes to reach the building. A four-member delegation led by Bar Council chairperson Ambiga Sreenevasan is currently in the building.
Those waiting outside are braving a heavy downpour that started about 12.45pm.
The protesters, who had gathered at the Palace of Justice in Putrajaya this morning, were denied permission by the police to march the 3.5 kilometres to the Prime Minister’s Department to submit a memorandum on saving the judiciary.
According to eyewitnesses, Putrajaya police chief Supt Abdul Razak Abdul Majid told the protest organisers - the Bar Council - that the march could not proceed due to security reasons.
Bar Council vice-chairperson Ragunath Kesavan confirmed this to Malaysiakini. He also added that they would proceed with the march.
The protesters heard a short speech from Ambiga before starting their march at noon - an hour later than scheduled.
“We walk peacefully and with dignity,” said Ambiga, who added that she was overwhelmed by, and proud of, the good turnout today.
She said that the march is a “walk for justice” as “we deserve a first-class judiciary”.
“When lawyers walk, that means there is something wrong. We want changes in the judiciary,” she said.
Independent panel
Ambiga also reiterated that the Bar welcomed the government’s move to set up an independent panel to look into the Lingam tape.
“This shows that the government recognises that there is a problem. However we still want a royal commission of inquiry,” she added.
Ambiga said of the inquiry: "It can only be the first step. They can't force the presentation of witnesses or documents."
She described the heavy security, which included anti-riot police and a police helicopter, as "an act of intimidation".
The protesters, most of whom are lawyers, have been outside the Palace of Justice since this morning to take part in the protest march.
They chanted "We want justice" as they marched while holding placards stating "Judiciary has gone to the dogs" and "Judiciary has gone to the drain".
Earlier seven buses packed with protesters were stopped by police from entering Putrajaya, but they made their way on foot to the Palace of Justice.
When contacted, Abdul Razak said he was busy (on the ground) and was not able to comment.
WEB EDITION :: Local News
» Senior judge implicated in video clip denies discussing judicial appointments with
senior lawyer.
» Lawyers plan march to demand royal commission of inquiry
A SENIOR judge implicated in a video clip which showed a senior lawyer discussing judicial appointments over the phone has denied that he was the person on the other end.
Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Abdul Aziz said that the judge had contacted him to make the denial.
"The judge called me to deny that he was the one talking to the lawyer," he said in Kuala Kangsar after a break-of-fast event on Saturday night. He did not say when the judge contacted him.
Nazri, who is in charge of law and legal matters, said it was important to establish the authenticity of the controversial video clip released by the Opposition last week. The video was purportedly recorded in 2002 and showed the senior lawyer discussing the elevation of several members of the judiciary.
"(Based on the video clip) we only see one person talking ... we don’t know who was on the other end. He (the judge allegedly speaking to the lawyer) has denied (it)," he said.
The revelation of the video has prompted calls for an investigation. The Bar Council plans a march to submit a memorandum to the prime minister on Wednesday, calling for the cabinet to discuss the setting up of a Royal Commission.
It also plans to hold an extraordinary general meeting on Oct 6 to discuss the issue further and refer the senior lawyer to the legal profession’s Disciplinary Board.
Judge said it’s not him: Nazri
KUALA KANGSAR: A senior judge said to have engaged in a telephone conversation with a lawyer, allegedly discussing judicial appointments, has denied that he was the one contacted by the lawyer featured in the video clip released by Parti Keadilan Rakyat last Tuesday.
Given the rising concern over the state of the judiciary following the release of the video, Gerakan acting president Tan Sri Dr Tsu Koon called yesterday for immediate action to address the concern and cautioned that if this was not done, it could harm the credibility and integrity of the judiciary.
In a Bernama report, Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Abdul Aziz said the judge implicated in the clip had contacted him to make the denial.
"The judge called me to deny that he was the one talking to the lawyer," he told reporters after handing Amanah Raya Berhad tithe and breaking fast at Taman Kuala Kangsar mosque here on Saturday night.
He did not mention when the judge contacted him
Mohamed Nazri, who handles the portfolio on law and legal matters, said what was important at this stage was an investigation to establish the authenticity of the video clip.
"(Based on the video clip) we only see one person talking. We don’t know who was on the other end. He (the judge allegedly speaking to the lawyer) has denied (it)," he said.
Police have started an investigation to ascertain the authenticity of the video clip before taking further action.
Mohamed Nazri also questioned the motive of the people who exposed the clip as they have released it to the media first before handing it to the police and the Anti-Corruption Agency.
"If they want to uphold justice or want to clean up the judiciary, the police and ACA can investigate. Why go to the media? The intention is questionable – for political (mileage) or for a clean judiciary?" he asked.
He warned that legal action can be taken against people resorting to action that could erode public confidence in the judiciary.
The eight-minute video showed the lawyer discussing the appointment of the judge as the Court of Appeal president and later being elevated as the chief justice, and the appointment of several other judges.
On Saturday, the Bar Council convened an emergency meeting to discuss the video clip and called for a Royal Commission of Inquiry to investigate the matter.
According to news reports, its chairwoman, Ambiga Sreneevasan, said the commission should also investigate all the problems concerning the judiciary.
On Wednesday, the Bar Council will organise a march from the Palace of Justice to the Prime Minister’s Office in Putrajaya, where it will submit a memorandum to Datuk Seri Abdullah Ahmad Badawi, calling for the cabinet to discuss the setting up of the commission.
It also plans to hold an extraordinary general meeting on Oct 6 to discuss the issue further and refer the lawyer to the legal profession’s Disciplinary Board.
Abdullah had said on Friday he viewed the issue seriously and had asked the police to investigate it as soon as possible.
He said the video clip could harm the good name of the judicial system.
"You cannot take it lightly and the matter must be addressed promptly," Abdullah, who is also the internal security minister, said.
In Batu Pahat yesterday, Koh said Malaysia has a good judicial system and legal framework that were well understood by foreign investors compared to other developing countries.
"This has become an advantage for the country to attract foreign investments. But once we lose credibility, it is going to affect our ability to woo investors," he told reporters after opening the Johor Gerakan delegates conference.
Updated: 02:25PM Mon, 24 Sep 2007
Local News
Llew-Ann Phang
newsdesk@thesundaily.com
PETALING JAYA: The sexual assault and murder of eight-year-old Nurin Jazlin Jazimin is a grim reminder that much more needs to be done to tackle such crime.
While the police need to nab the person/s responsible and make the public space safer, there is also a need to educate children and adults on how to prevent and deal with such violence.
For non-governmental organisations such as the All Women’s Action Society (Awam) and Protect and Save the Children (PS the Children), this involves changing society’s attitude towards gender and violence, and teaching children to stand up to adults when something is not right.
Nurin went missing on Aug 20 after she went to the pasar malam on her own near her home in Wangsa Maju, Kuala Lumpur.
Her body was found in a bag left at a shoplot in Petaling Utama almost a month later last Monday. She was sexually assaulted and is believed to have died of a ruptured intestine.
Twenty years ago, following a similar case involving nine-year-old Ang Mee Hong, who was also sexually assaulted and murdered, Awam embarked on its Citizens Against Rape (CAR) campaign.
It held another CAR campaign in response to the Canny Ong case in 2004.
Ong was abducted from a shopping centre’s basement car park in Kuala Lumpur and her charred remains were later found in a culvert. She was raped, stabbed and strangled before being burnt.
"Since the campaigns, we have maintained our momentum in terms of continuing with our public education programme," Awam’s executive director Honey Tan Lay Ean, told theSun.
Awam has held programmes at schools, colleges and universities to talk about violence and safety issues, and how violence violates human rights to life, liberty and a person’s security.
It also organised the Walk &Wheel: Uniting for Safe Spaces project in June, which engaged students to come up with ideas to deal with the problem of violence, such as robbery, domestic violence, sexual harassment and rape.
"Some of the winning entries were designing a safer school, interacting with the police and the MP of the constituency to create a safer environment outside the school and tackling sexual harassment with one of the Light Rail Transit service providers," Tan said.
"Public programmes are important as they help bring out specific issues and begin the process of change, but they can be limiting because they reach out to a limited audience and are not ongoing."
She said another way to tackle the increase in such cases was to start dealing with the "endemic issues" of discrimination against women and gender equality.
"Women are valued less when they are discriminated against and this lower status enables violent acts against them, often without [the perpetrator] being punished," she said.
"One of the more effective ways to deal with gender-based violence issues is to change peoples’ values and mindset that boys and girls, and men and women, are to be valued equally; and violence is not the way to deal with issues which arise in our everyday lives."
Further, Tan said, boys and men faced the stereotype of having to be macho and aggressive, and that violence was deemed a solution to problems.
She said this disenabled them from showing a caring, loving and nurturing side for fear of being thought of as a "sissy" or "soft".
Tan said the women, men and youth whom Awam reached out to in its nationwide programmes have responded positively to the programmes.
Many later became volunteers and joined Awam’s pool of trainers to provide public education, especially to empower women by raising gender awareness and teaching basic self-defence skills.
PS the Children, set up in 2002, raises awareness through projects with students and teachers in kindergartens, primary and secondary schools in the Klang Valley.
Its operations director, Sonny Lim, said the first challenge in its personal safety programme was overcoming the taboo on sex and helping children learn the right vocabulary for their private parts, which was essential in lodging reports.
"The second part covers safe and unsafe touching and then comes personal safety rules like no one can touch my private parts unless it is to keep my body clean and healthy," he said.
The programme also increases the children’s self-esteem through awareness that the body is special and everybody must respect it, and they have a right to say "no".
"Telling skills are also important. We tell the children to say ‘no’, and run and tell and tell and tell, until someone believes them. Half the time, adults dismiss what the child says, so we teach them not to give up," he said.
Before dealing with children, Lim said, the trainers would explain the education process to the parents to prevent any misunderstanding.
He said the trainers were often approached by both children and adults with experience of abuse, and some were not aware that what they went through was tantamount to abuse before that.
Updated: 02:13PM Mon, 24 Sep 2007
Soon Li Tsin
Aug 10, 07 4:48pm
A transsexual arrested by Malacca Religious Affairs Department (Jaim) enforcement officers on July 31 claimed that she was treated like a serious criminal.
Previously, malaysiakini reported how Ramli Mohd Noor, 44, had to be sent to the hospital for an operation after she was allegedly assaulted by Jaim officials. Ramli, who is known as Ayu, said she was out with her friends along Jalan Tun Ali, Malacca, when two men sporting motorcycle helmets started hitting her.
“Without saying a word, they started hitting me. The gripped my neck, punched my face and my stomach.
“They pinned me down and handcuffed me before saying they were Jaim officers. Then they dragged me to a van with three other officers inside,” she said when contacted today.
Ayu was arrested under Section 72 of the Malacca Syariah Offences Enactment for being a ‘man dressing up as women in a public space’, which is punishable with a RM1,000 fine, a six-month jail sentence or both.
'I was in pain'
Ayu said she felt sharp abdominal pains when she was taken to the police station before being brought to the Jaim office to give up her belongings.
“I kept telling the officers that I was in immense pain and that I had hernia but all they did was laugh and make fun of me. They didn’t believe me.
“By then, I was already crouching and holding my stomach. I couldn’t take it any longer so I pulled my skirt down and showed them the swelling,” she related. Ayu, who hails from Kuala Lumpur, was then taken to the Malacca General Hospital and had an emergency abdominal hernia operation the next day.
“They had dragged me to the hospital while I was still cuffed and everybody was looking at me. It was so humiliating,” she explained.
It has been 10 days since her hernia operation and Ayu is now back in Kuala Lumpur. She has lodged a police report against Jaim and contacted PT, an NGO that works with transsexuals.
Expressing her relief, she said: “I am thankful this is all over. I am glad I had friends who alerted Nisha (a transsexual social worker with PT) about the incident and she had taken care of all the relevant procedures back in Malacca.”
However, life had yet to resume back to normal for Ayu who said she has difficulty getting up from bed and has trouble sleeping.
“Things are not the same. I haven’t been sleeping well. The incident has caused me a lot of anxiety and I’m scared that the religious officers will come after me again,” she said.
Legal action
According to Ayu - who is contemplating legal action against Jaim - she has not been charged and is currently out on police bail. She added that during her arrest, she had asked the enforcement officers why they had no identified themselves before arresting her.
“The officer said that if she identified herself (as a Jaim officer), I would’ve run away. How can he assume that I would run away? They should not be treating people this way,” he asserted.
Contacted after the incident last week, Jaim enforcement chief Rahimin Bani had denied the assault claims and said Ayu was sent to the hospital because “she was sick.”
He then countered Nisha’s allegation by asking her to produce the photos and to make a police report.
There are estimated 20,000 to 30,000 transsexuals in Malaysia.
Sep 9, 07 2:50pm
Opposition parties PAS and PKR are claiming that the police used unprecedented violence - including firing live bullets - to disperse a ceramah in Pantai Batu Buruk, Terengganu, late last night.
Party sources told malaysiakini that two individuals have been seriously injured as a result of being shot.
Terengganu police chief Ayub Yaakob, in a specially arranged press conference this afternoon, confirmed that one live bullet was fired by one of his officers.
Ayub said the officer, who is from the Federal Reserve Unit, was set upon by a group of men in the vicinity of the ceramah.
"At about 11.45pm last night, the officer Azmi Hussein, 29, was doing his duty near the Permai Inn car park when he was surrounded by 20 men who proceeded to threaten and assault him," Ayub was reported as saying by Bernama.
He said that the FRU personnel was pushed to the ground and attacked by the crowd, leaving the FRU officer with no choice but to draw his weapon and fire a shot to defend himself.
Ayub said that the crowd dispersed soon after the shot was fired, allowing the FRU personnel to escape from the area.
The state police chief added that as a result of the single shot, two men from the group were hurt - one in his shoulder and another in his neck.
They are currently undergoing treatment at the Kuala Terengganu Hospital.
Four police personnel were also injured after being attacked by the crowd, claimed Ayub.
However, several eyewitnesses told malaysiakini that more than one shot was fired at the crowd last night.
They also claimed that several members of the public also suffered injuries as a result of police violence. At least 23 opposition supporters have been arrested.
Makeshift stage torn down
The stand-off between the police and the crowd of 500 people started following the refusal by the authorities to ban a ceramah organised by polls watchdog Bersih.
The police said that the organizers had no permit to conduct the ceramah. Among those who were to address the crowd were PKR treasurer Khalid Ibrahim and PAS vice-president Mohamad Sabu.
Bersih, a coalition of opposition political parties and non-government organisations which campaigns for free and fair elections, is organising forums to raise awareness on the subject nationwide.
According to sources, the application for the permit to organise the forum had been sent to the police prior to the event and Bersih had assumed that the event would be given the green light and decided to proceed with it.
The situation turned unruly when the police and the local authorities prepared to tear down the makeshift stage at about 10pm.
Eyewitnesses also said that the police also shot tear gas and fired water cannons to disperse the crowd.
According to state police chief Ayub, his men had to use tear gas and water cannons after the crowd turned aggressive and started hurling stones at them.
The police also claimed that a Molotov cocktail was thrown at the Federal Reserve Unit personnel who were brought in to control the crowd.
'Permit originally granted'
In an immediate reaction, PKR information chief Tian Chua said that while the opposition has come "to expect such injustices from the current government, the sheer amount of violence is appalling".
He observed that such high-level of violence had not been used to break up a peaceful gathering in an "extremely long time".
"The shooting, gassing, beatings and arrests of scores of people whose only 'crime' was to seek alternative views and information clearly indicates that the BN government has reached the heights of desperation," said Chua.
"The extremely last-minute decision of the police to revoke the permit for the gathering which they had originally granted is not only unreasonable but also highly suspect, and points towards political meddling."
He called on the government to order an independent inquiry into the incident.
"We also call upon all Malaysians, who wish to preserve their rights to gather peacefully and seek alternative views, to voice up our unequivocal condemnation of police brutality."
Meanwhile, Deputy Prime Minister Najib Razak defended the police action, saying it was their duty to ensure law and order.
"This is within the jurisdiction of the police. The government did not give any instruction to the police," Bernama quoted him as saying.
Shot man in 'critical condition'
PAS leader Syed Azman Syed Ahmad one protestor who was shot was in hospital in a critical condition.
He said the violence erupted after police fired tear gas and used water canons to break up the peaceful gathering.
According to Syed Azman, the situation became tense when police refused to allow speakers to proceed.
"The police gave orders to arrest me and the other speakers. At this point, the police fired tear gas at a nearby group and used water canons to disperse the crowd," he said.
Of the 23 people arrested last night, 19 of them were freed on police bail by the Kuala Terengganu Sessions Court today. Four, however, have been remanded for further investigations.
Sep 11, 07 6:26pm
Prime Minister Abdullah Ahmad Badawi today blamed an opposition party for inciting a riot in Kuala Terengganu on Saturday night.
He said that the opposition could have prompted the riot after not being able to bring development to the state during the five years it was in power. 
While he did not name the opposition party, it was evident that he was referring to PAS which had ruled the state from 1999 to 2004 before it was wrestled back by the BN.
Abdullah claimed that the rioting was a deliberate tactic by the opposition party.
"This is proof of their irresponsibility and are devoid of ideas to develop the state," he was quoted as saying by Bernama in Kuching, Sarawak.
The prime minister was also reported as saying that the opposition party had purposely intended to smear the BN government with the riot because they had no chance to win in the next general election. 
Seven people were injured, two with gunshot wounds, in the riot which started following a police refusal for a ceramah to proceed.
The ceramah was organised by polls watchdog Bersih, which is a coalition made up opposition parties and NGOs to campaign for free and fair elections.
Opposition supporters openly clashed with police who were trying to disperse the gathering at Jalan Sultan Mahmud in Pantai Batu Buruk.
The riot was sparked when police ordered the crowd of 500 people to disperse peacefully.
The police claimed that they were verbally abused by the aggressive crowd, with stones, homemade bombs and Motolov cocktails being hurled at police.
Police have arrested 23 people in connection with the riot. The two men who were shot are still undergoing treatment in hospital.
The police have claimed that gunshots were fired in self-defence by a police personnel who was being attacked by a crowd.
No ISA for rioters
Abdullah, who is also Internal Security Minister, however, said police would not invoke the Internal Security Act against the rioters who have been detained but would deal with them under normal police procedures. 
He said the incident, which saw the burning of the national flag, showed the opposition had bad intentions probably after seeing the people happy and grateful to the government as they ushered in the 50th independence anniversary celebrations.
PAS however claimed that the violence which rocked the Kuala Terengganu ceramah was instigated by police agent provocateurs.
The opposition party also accused political secretary to Internal Security Minister Wan Mohd Farid Wan Salleh of having a hand in it.
However, Mohd Farid denied this when contacted later.
