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Legal challenge to declare court order which barred Bersih activists and public from Monday Parliament null and void

I have filed an application in the Kuala Lumpur High Court to challenge the legality of the court order obtained by the police barring Bersih activists and the public from Parliament on Monday, 11th December 2007 as null and void.

Karpal Singh is assisted by M. Kulasegaran in preparing the writ of summons in the case Lim Kit Siang vs OCPD Sentul, Inspector-General of Police and the Malaysian Government. My statement of claim, filed with the Kuala Lumpur High Court yesterday, follows:

STATEMENT OF CLAIM

1. The plaintiff is a Malaysian citizen of age and at all material times, Opposition leader, Dewan Rakyat and Member of Parliament (Ipoh Timur).

2. The first defendant is the OCPD, Sentul.

3. The second defendant is the Inspector General of Police.

4. The third defendant is the Government of Malaysia and the plaintiff pleads that at all material times, the first and second defendants were the agents and/or servants of the third defendant which is vicariously liable for the acts and/or omissions of the first and second defendants.

5. The plaintiff pleads that at the commencement of the 11th Parliament in May 2004, the following motion was unanimously approved by the Dewan Rakyat:-

“Bahawa Majlis ini memerintahkan Ketua Polis Negara menjaga supaya selama Penggal Dewan Rakyat yang ada sekarang, jalan-jalan melalui lorong-lorong menuju ke Dewan ini hendaklah senantiasa terbuka dan boleh dilalui dan jangan ada apa-apa halangan menghalang ahli-ahli hendak pergi dan balik dari Dewan ini, jangan berlaku apa-apa kacau-bilau di jalan-jalan menuju ke Dewan ini, dan supaya jangan ada huru-hara di Bangunan Dewan ini dan berhampiran dengan bangunan ini; dan Setiausaha Dewan Rakyat hendaklah menyampaikan perintah ini kepada Ketua Polis Negara yang tersebut itu.” (‘the said directive of the Dewan Rakyat’)

6. The plaintiff pleads by the said directive of the Dewan Rakyat, the second defendant was required by law to ensure, inter alia, all police personnel in his command were prohibited from in any way causing a disturbance within the precincts of the Dewan Rakyat.

7. The ex-parte order obtained by the first defendant under section 98 of the Criminal Procedure Code vide Criminal Application No. 89-0293-07 at the Magistrates Court, Kuala Lumpur dated the 10th of December, 2007 (‘the said order’) purportedly prohibiting the respondents i.e. Dr. Syed Azman Bin Syed Ahmad, Mohamad Bin Sabu, Syed Shahrir Bin Syed Mohamud, Adnan Saad and ‘Mana-mana orang yang berkenaan’ is vague in import and substance and the said order to the best of the plaintiff’s knowledge, having been issued on the 10th of December, 2007 could not have been gazetted by the 11th of December, 2007 as required by section 90(2) of the Criminal Procedure Code which requires publication of the said order in the Gazette and a copy of same being posted at such place as may be fittest for conveying the information to the first, second, third and fourth respondents and anybody else connected therewith. A copy of the said order was posted along the road leading to the entrance of the Dewan Rakyat. The infringement of the provisions of section 90(2) of the Criminal Procedure Code renders the said order invalid. Further, the fifth respondent being designated as ‘mana-mana orang yang berkenaan’ is in the said order referred to as ‘mana-mana penyokong BERSIH’ which also renders the said order invalid and of no effect.

8. The plaintiff pleads one Dato’ Mustafa Ali together with the Democratic Action Party (‘DAP’) Member of Parliament for Seputeh, Theresa Kok and 6 other activists from BERSIH, a coalition for clean and fair elections, at a press conference in the lobby of Parliament, distributed memorandum entitled ‘SAY NO TO THE “SAVE RASHID” AMENDMENT OF THE CONSTITUTION’ dated the 11th of December, 2007 to Members of Parliament including the plaintiff.

9. The said Dato’ Mustafa Ali and the 6 activists from BERSIH were lawfully at the lobby of Parliament after having been cleared at the police roadblock outside the road leading to the gate of Parliament.

10. The plaintiff pleads all the said 6 activists from BERSIH were detained at the Parliament car park and taken to the Kuala Lumpur Contingent Police Headquarters and released at 4 pm after having been held there for 2 hours. The said Dato’ Mustafa Ali was also arrested as he was leaving the entrance to Parliament House without being assigned any reason for having been arrested. All 6 activists from BERSIH and the said Dato’ Mustafa Ali were unconditionally released the same day.

11. The plaintiff pleads as Opposition leader, he was duty-bound in the public interest to ensure Dato’ Mustafa Ali and the said 6 activists who had been given clearance to enter Parliament House were not in any way subjected to arrest while leaving the precincts of Parliament in keeping with said directive of the Dewan Rakyat.

12. The plaintiff pleads he together with the opposition DAP members of Parliament met up with the Speaker of the Dewan Rakyat, Tan Sri Ramli Ngah Talib, in his chambers to protest the arrests made which reflected adversely on the sanctity of Parliament. The said Speaker promised to take up the matter with the second defendant.

13. As a result of the acts of the first and second defendants, the said directive of the Dewan Rakyat has been contravened.

14. WHEREFORE, the plaintiff prays for the following orders:-

(i) a declaration that the said order under the hand of Azniza Binti Mohd Ali, Magistrate, Kuala Lumpur in Criminal Application No. 89-0293-07 is null and void and of no effect;

(ii) a declaration that the second defendant has through the acts of police personnel under his command contravened the said directive of the Dewan Rakyat;

(iii) costs; and

(iv) any other and/or further relief deemed fit and proper by this Honourable Court.

Dated this 12th day of December, 2007.

41 Replies to “Legal challenge to declare court order which barred Bersih activists and public from Monday Parliament null and void”

  2. It would be ‘nicer’ if UMNO /BARISAN NASIONAL can be made liable for their ‘unconstitutional action’ action using the government as the vehicle to fulfill the party’s agenda… UMNO leaders being ‘directing mind’ of the government should be made liable – piercing the veil of ‘separate legal entity’.

    and /or

    RAKYAT SHOULD HAVE RIGHTS OF SUBROGATION AGAINST UMNO/BARISAN when the government lose in this kind of legal case and made to pay for damages by courts to the affected parties – how can the UMNO LEADER MADE STUPID DECISION/MISTAKE-BEYOND THE MANDATE OF RAKYAT AND THE RAKYAT HAVE TO PAY FOR IT(THROUGH TAX PAYERS’ MONEY)?

  3. That’s the way to go! No matter which way the case is going to turn out the court challenge will be recorded as a historical legal case. This BN regime has no shame but the shame will be upon their grand children and great grand children.

  5. You should also file action against AAB, NAR, Nazri, Kerismudin, et al for inciting racial tension through misinforming the public.

    And also sue TV1,2,3 NTV7 NST and Star for misinforming the public with intent to stir up racial tensions.

  6. A declaration has been sought that the order given under the hand of Azniza Binti Mohd Ali, Magistrate, Kuala Lumpur in Criminal Application No. 89-0293-07 is null and void and of no effect. Paragraph 13 of your Statement of Claim – “As a result of the acts of the first and second defendants, the said directive of the Dewan Rakyat has been contravened.”

    The fundamental question : will breach of directive of the Dewan Rakyat impugn (as in rendering null and void) section 98 of the Criminal Procedure Code on basis of which the magistrate (Azniza Binti Mohd Ali)’s order was first made?

    I stand corrected if wrong, but I doubt so. The reason is because section 98 of the Criminal Procedure Code was made – and hence sanctioned – by Parliament itself.
    This being the case, Parliament cannot strike down a magistrate’s order issued pursuant to the very Act of Parliament – section 98 of the Criminal Procedure Code – that was promulgated by itself. Otherwise it would be like slapping one’s own face with one’s own hand.

    The magistrate’s order based on section 98 would technically be struck down as null and void only it conflicts with any provision of the Supreme law of the land, the Federal Constitution by virtue of Article 4 which states, “this Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”. It cannot be struck down for contravening Parliament’s directive when the law on the basis of which the order was issued was itself passed and sanctioned by Parliament.

    When a directive of the Dewan Rakyat had been deliberately flouted by the authorities, an act of contempt of Parliament had been committed and technically the proper course of action to take is to apply to Parliament to commit the parties flouting it to be punished for contempt of Parliament than to seek a court’s order declaring the magistrate’s order null and void.

    This is only to weigh which is the proper course to take. It is not to preempt the result of the course taken. In either courses, whether to Court or Parliament, we are realistic to know that the chances of succeeding are infinitesimal. :)

  8. Jefferey,

    very long and technical explanation indeed. Can’t really understand all your arguments but your conclusion might have made up your point : “we are realistic to know that the chances of succeeding are infinitesimal.”

    To succeed or not is another topic. It might also take several years for this case to be heard. But if only this legal challenge could send a clear message to all Malaysians that peaceful assembly is our fundamental rights. then this challenge will serve its purpose.

    When hindraf first started the trillion lawsuit against the British Government, noone would believe they will succeed. but this has gathered tremendous support among the indians than one could imagine! You really think that all those that went on street are so ignorant that they believe Hindrad would turn them a millionaire??

  10. What you are arguing for is that something needs to be done, never mind the chances of its final result.

    I would agree with that.

    That being so, the choice of a legal suit of such a nature to challenge section 98 of the Criminal Procedure Code is not, in my assessment, likely to be efficacious in relation to the objective for which it was intended ie to maximize publicity and exert pressure.

    This is not only because such a suit is (again, in my personal opinion that others are entitled to disagree) not grounded on solid logical premises but mainly because even if it were, such legal suits would, after the initial impact, be lost in the judicial wood work as just one of the many cases awaiting to be heard several years down the road.

    One cannot, by scale and proportion, compare such a suit to the Hindraf’s legal suit against the British Crown. Though frivolous in legal content, Hindraf’s legal suit reverberates with international effect and political implications.

    I would be the first to agree that the suggested alternative – ie. trying to commit the law enforcement personnel to Contempt of Parliament – would, in all likelihood, also come to nothing in a Parliament dominated by BN but at least in terms of maximizing publicity and exerting pressure, it has the advantage of pitching one set of institutional structure controlled by them against another equally controlled by them so that it may be seen how they would reconcile that conflict, which is something our YB Kit has shown adroitness in identifying many an occasions to put them in awkward position.

    For ilustration : Parliament is controlled by the BN’s constituted Executive; so are the police.

    Now if BN controlled police flouted directive from BN controlled Parliament, which, it may be asked, is more important and should prevail?

    If police actions prevailed, then BN Parliament would lose its prestige for having its directive overridden roughshod over but if BN Parliament’s directive prevailed, as it should, in line with supremacy of parliament, then the detention of Dato’ Mustafa Ali and the 6 activists from BERSIH should attract punishment for those who committed Contempt of Parliament by ignoring its directive.……

  11. STAR :

    “Speaker defends arrests at Parliament

    KUALA LUMPUR: Parliament is a restricted area and police can arrest those who pose a security threat, said Dewan Rakyat Speaker Tan Sri Ramli Ngah Talib. ”

    originally posted by ENDANGERED HORNBILL on another thread.
    Seems that the Speaker had chosen for the police action to prevail.

    So do we still move the contempt of parliament motion?

  13. A court that would allow ‘attempted murder’ charge against Hindraf supporters would never interpret the constitution to its original intention and hear this case.

    How many want to bet it woud not be heard?

  14. Off course the other part “the plaintiff pleads as Opposition leader, he was duty-bound in the public interest to ensure Dato’ Mustafa Ali and the said 6 activists…were not in any way subjected to arrest…” would be strenously objected to and argued against based on the Opposition Leader had no legal standing to plead on behalf of Dato’ Mustafa Ali and the said 6 activists, and as regards the other part whether ‘public interest’ would be compromised by Parliament’s directive being flouted by the arrests, well this is contentious as it would be argued that the activists’ coming to Parliament to distribute a memorandum entitled ‘SAY NO TO THE “SAVE RASHID” AMENDMENT OF THE CONSTITUTION’ would be calculated to disrupt orderly conduct of parliamentary proceedings.

  17. Yes, Parliament is a restricted area and police can arrest those who pose a security threat but Dato’ Mustafa Ali and the 6 activists from BERSIH were already “lawfully at the lobby of Parliament after having been cleared at the police roadblock outside the road leading to the gate of Parliament”, so why were they cleared if they were security threat? They were not arrested for security threat – they were arrested whilst leaving the entrance to Parliament House for violating the restraining order issued by magistrate under section 98 of the Criminal Procedure Code. They were allegedly guilty of contempt of court.

    However if YB were right that Dewan Rakyat’s directive had been contravened by the arrestors, then the arrestors enforcing the court order would arguably be guilty of Contempt of Parliament.

    So which overrides – magistrate court order or Parliamentary directive ; which is more supreme, in a conflict, Parliament or Courts? I think our Constitution favours Parliament being supreme.

  19. Dato’ Mustafa Ali and the 6 activists from BERSIH were already “lawfully at the lobby of Parliament after having been cleared at the police roadblock outside the road leading to the gate of Parliament”

    Good point raised. but are you sure you want to dwell on how they managed to enter the parliament? opposition MPs might get the blame for hitchiking them.

  20. “the only thing necessary for evil to propagate is for good men to do nothing”

    We support the efforts of the Bar Council, BERSIH and HINDRAF as well as the many bloggers who have made us aware of the shit that is being served up to us by the ruling govt.

    …sentiments of about 200 office workers!

  21. I see that we are talking legal stuff with people who really do not respect law. I see that we are talking legal actions when the administration of justice can be so arbitrarily applied. I see that we are talking about law when prosecution can be so selective and applicable charges so dubious. Yes, we can create some publicity but frankly does the Government really care.

    The recent arrests and charges are political decisions, not legal ones. In response, our actions too must be political although I agree that in the interim we need to go to court to seek whatever redress that is still available to us.

    How our country could degenerate to this stage is mind-boggling. Why is it that every facet of our institutions is collapsing? The problem is not ABB. The problem is the system ABB represents. We can change the BN leadership, we can even bring oppositions to power, but unless and until the institutions are put right, transparency and checks and balance restored, it is an adventure story over and over again. I urge right minded opposition leaders to bring changes not just to leadership, but to work earnestly to restore every facet of our institutions of government.

  23. “The recent arrests and charges are political decisions, not legal ones.” lilmkamput

    You are right. The decisions to have them arrested were politically motivated. But even they will need to have warrants of arrests in hand and execute the arrest warrants in accordance with the law.

  24. I could see they were trying to prevent Mustapha Ali from entering the Parliament building. They still have respect for the law. They are well aware of the consequences of contempt of Parliament.

    We have laws. They cannot ignore it much as they want to do so. They may stretch it but they cannot ignore it.

  25. Jeffrey QC: “….but Dato’ Mustafa Ali and the 6 activists from BERSIH were already “lawfully at the lobby of Parliament …”

    Yes, but they have yet to enter the Parliament Building. Does being in the compound or at the doors of the building constitute being “in Parliament?”

  26. Limkamput says victory finally lies in the electoral booths and not in a court of law.

    He is right. But we cannot ignore the role law plays in that victory. Otherwise why do we need the Election Act which defines what these offenses are. Ask the anointed head of the judiciary who is the undisputed expert when it comes to declaring electoral results which go against UMNO void. UMNO electoral losses can be converted to victories in a court of law.

  29. Motion approved reads:

    “…all roads and pathways leading to the House of Parliament are to remain open and available for use and free from obstructions of any kind , and so as to allow free movement to and from the House of Parliament by MPs, to ensure that there is no disturbance of any kind along these roads and pathways leading to the Parliament Building, and so that there is no disturbance of any kind in the Parliament Building and the area adjacent to the Building…. “

    ISSUE

    The only issue would appear to be whether the Order obtained ex-parte by the OCPD Sentul under section 98 of the Criminal Procedure Code was “vague in import and substance” as claimed by YB Kit, and whether the order was gazetted as required by section 90(2) of the Criminal Procedure Code on the date in question.

    I do not have a copy of the Criminal Procedure Code. So no can comment.

    But assuming the Order was properly published (and the motion need not be gazetted for the Order to be obtained), and is legally valid the arrests within the compound of the Parliament Building appear to be lawful.

    Sorry guys. Law may be an ass but it still is law. It can come back and kick you in the ass.

  30. Undergrad2 said: “Limkamput says victory finally lies in the electoral booths and not in a court of law.”

    I think I said more than this. Electoral booths can only be relied on provided elections are carried out free and fair. Electoral booths can only be relied on provided constituencies are fairly and drawn. Electoral booths can only be relied on if all parties contesting have equal access to information and media. Otherwise we are just legitimising the so-called duly elected government which in actual fact is illegitimate – a pariah in fact but going around the round boosting for being a pedigree.

    What I am trying to say is getting a free and fair election, getting constituencies properly and fairly drawn up, getting equal access to information and media require struggle that goes beyond the legal process and court of law. How can we ever depend on the legal process when almost every institution of government is subjected to manoeuvring and peddling? I think I mentioned in the earlier blog that HINDRAF leaders’ remedy lies elsewhere and not in court, and in the light of event unfolding today, may be I am right.

  31. Motion:

    “to ensure that there is no disturbance of any kind along these roads and pathways leading to the Parliament Building, and so that there is no disturbance of any kind in the Parliament Building and the area adjacent to the Building…. “

    – But Mustafa Ali did not pose any disturbances. He went to Parliament as a guest of an MP. It was the Police that caused the disturbance, caught on video.

  32. Wasn’t Mustafa an MP?? So that explains a little more. Since he is not an MP there to discharge his duty as a Member of Parliament, what was he doing there? Maybe the police knew something we don’t?

    “It was the Police that caused the disturbance, caught on video.” Jong

    Let me play Devil’s Advocate for a second.

    I watched. And this is what I saw. I saw the police trying to arrest someone whose behavior ranged from being uncooperative to later becoming moderately hostile as he resisted arrest.

    The police were incompetent when effecting arrest, and failed to show the warrant of arrest signed by a judge as the law requires – perhaps not on their persons as they went about arresting but they must have it and a copy of the arrest warrant must later be shown perhaps to counsel.

    That was what I saw and heard.

    All the police is required to do when effecting an arrest is to inform the person to be arrested the fact that he is under arrest, and the reason why and then putting him under restraint by placing their hands on him and cuffing him if necessary.

    The “disturbance” you referred to on the part of the police is the ‘disturbance’ one would expect to see as the police tried to arrest an individual who was resisting arrest.

  33. .
    Limkamput,

    Yes, you’re right! Nobody has said anything to contradict you. So why are you having an argument with yourself?

    The way to change a government in a country that claims to be democratic is through the electoral process. But when the electoral process is weighed heavily against the interest of the electorate, then as free citizens who go to the polls every five years to elect which party is to run the next government, we have no choice but to take it to the streets. Why should free citizens looking for equality and justice not take to the streets just because there is a law requiring a police permit and which permit is more often refused than granted?

    When the media is controlled by a political party in power, when government apparatus including the police, is being used as an organ of the political party running it, and the country is being ruled by a political party that has long lost its political legitimacy to rule, then the continued dependence on the government to provide support for ‘change’ does not make sense.

    It is common knowledge that the Electoral Commission (EC) has been guilty of showing partisan support when it allowed electoral constituencies to be drawn dividing the electorate along racial lines, artificially splitting communities and in many instances in such a way as to allow one race to dominate. This is nothing new. It has been happening for decades since the time of the Tunku. The civil service has long lost its neutrality since. We must work to pressure the government to regain its lost civil service neutrality. It goes way beyond the issue of the drawing and re-drawing of electoral constituencies to suit the changing demographics.

    You refer to issues of transparency, accountability and good governance and the matter of checks and balances all of which are prerequisites to a functioning democracy. Aren’t these just different aspects of a democratic government?

    The institutions you refer to are supported and protected by laws.

    We have laws requiring that elections be held in a fair and transparent manner. Parliament, for example, has passed the Election Act which governs how elections are to be run. The Act defines what acts constitute electoral offenses and the purpose is to punish offenders and to declare electoral victories void if there is evidence of such offenses having been committed and then to hold fresh elections.

    High court judges have been pro-UMNO and Zaki would win all his cases. But this merely points to a judiciary which has lost its independence – and not for the need to do away with the law since according you it is the “law as interpreted by UMNO.” The fact that we have been facing endemic corruption in the country’s civil service for years cannot be made a basis for an argument for doing away with the Prevention of Corruption Act.

  34. Undergrad2,

    Yep Mustafa Ali is a former MP(Trengganu) and past VP of PAS. Your guess is as good as mine, we know why he was there and I’m sure the Police knew that too. Anyone who is not in the BN is ‘suspect’ on that day but that’s not the issue. The issue is they(Police) dragged him away when he was within the confines of Parliament building. Obviously he had earlier cleverly given security a slip.

  35. So you and I are fully awake. Good to be in different time zones! Either that or you’re having sleepless nights in Seattle.

    The Order albeit obtained ex parte – if valid – covers those within the compound of Parliament Building including those in Parliament building itself. Wonder why they bothered to block him from entering!

    Order valid or otherwise has served its purpose. Apparently the purpose was to detain them for a few hours perhaps with a warning of more to come! A taste of what is coming unless they behave?

  36. They blocked him because he was a “security threat” to the BN MPs inside Parliament, may even attempt a murder ! It was to harrass, to intimidate and instill fear that’s all. They have no solid grounds, real pok-kai!

    I’m back on homeground where the action is, will exercise my citizen’s right to vote, one for the Opposition!

  39. keselamatan rakyat adalah utama…tanpa rakyat, mana ada negara… ini pm pun tak faham, ..tiew…

    they don’t have enough evidence to charge them in court, that is why they use isa… simple.. those rapist and child killer can get fair trial…but if you go againts them.. isa pulak… you mean to say those rapist n murderer are not a treat to public????????tiew

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