BN’s court of appeal at it again…

… over turning a decision made by the high court.

read ex-ISA detainee loses RM2.5 mil.  court award from malaysiakini.
(story CnP here below)

4 years back when i read about how abdul malek (picture) won and was awarded RM2.5 mil, i was very happy, thinking that justice had been served. malek had suffered so much while in ISA

then yesterday suddenly i was shocked to read that he lost the RM2.5 mil! because the govt appealed to the court of appeal… and we all know how the court of appeal works – leaning toward the government. look at the perak case – the MB vs MB case, look at the MACC questioning of witnesses time case (and coming herald vs govt on the use of allah case) – the high court made a decision but the court of appeal over-turned the decision in favour of the govt.

btw i have met abdul malek before when he was chairman of MAFREL. he seemed to be a nice person. very good talker with lots of humour.

*sigh* what the high court did yesterday had further diminish people’s trust in the judiciary. malaysian judiciary had gone to the dogs…………

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Ex-ISA detainee loses RM2.5 mil court award

Hafiz Yatim
Mar 25, 10
12:22pm

The Court of Appeal has today overturned a rare RM2.5 million award to former Internal Security Act detainee Abdul Malek Hussein following an appeal from the government.

Justice Md Raus Shariff leading a panel of three judges reversed the High Court decision and ruled that Abdul Malek’s detention was lawful and rejected his allegations of torture while in custody.

The other two judges who sat with Md Raus – who is now Federal Court judge – were justices Sulong Matjeraie and Ahmad Maarop.

The decision was unanimous.

Following the decision, Abdul Malek is not entitled to get any monetary award but was instead ordered by the appellate court to pay RM50,000 in costs.

Justice Md Raus in his 34-page judgment said the arresting officer need not inform Abdul Malek the grounds of the arrest in detail.

“It is our view the respondent was informed the grounds of his arrest. The officer gave sufficient particulars and thus did not make the arrest and detention unlawful.”

Commenting on the High Court judge’s decision, Md Raus ruled the judge exceeded his jurisdiction by expanding the meaning of section 73 (3) of the ISA, to include imposing a duty on police officers to furnish particulars as a basis of extending the detention which parliament had never intended.

The court also viewed that with helding Abdul Malek’s right to a counsel, while under detention, as alleged a violation under Article 5(3) of the Federal Constitution, does not make the arrest and detention mala fide.

Questions raised on torture

Md Raus said while the High Court judge accepted Abdul Malek was assaulted, he noted the trial judge failed to appreciate the evidence adduced before him.

“It is our view that on the evidence adduced, the High Court judge’s findings of facts were clearly against the weight of evidence as Abdul Malek did not make the police report on the alleged torture immediately after his release but three and a half months after that.”

“The delay raises doubt as to the credibility of the alleged assault. The respondent (Abdul Malek) had explained the delay but in our view, his explanation was not credible and should have been rejected by the High Court judge,” he said.

Furthermore, the judge said the photographs taken did not indicate any injury consistent with a continuous and violent assaults as alleged by the detainee.

Md Raus also noted that the doctor who examined Abdul Malek, four days after the alleged assault had told her (the doctor) that he had fell and complained of pain over his pelvis and right eye.

“In her evidence, Abdul Malek did not complain of any assault or torture by the police to her,” he said.

Hence, Md Raus said the High Court judge’s presumption that Abdul Malek was in fact assaulted was completely misplaced, when the Deputy public prosecutor was unwilling to prosecute the former detainee for loding a false report.

“The court noted that police had recommeded action but the DPP directed the police to take no further action.

“We are of the view the unwillingess of the DPP to charge for making false report cannot be used to infer the DPP and police were trying to cover-up the case.”

“In our judgment, the findings of facts by the High Court judge that Abdul Malek had been assaulted or tortured is not supported by evidence. The finding were perverse and cannot be upheld. It must be set-aside,” he said.

In an immediate reaction, Abdul Malek said he planned to go to the Federal Court.

His lawyer, Sivarasa Rasiah, said the reversal has set the country backwards at a time when the government was in the midst of amending the draconian law, which allows for detention without trial.

“It raises the key question how the ISA operates. Today’s decision is regressive in terms of the development of the ISA law as the appellate court did not use principles which were adopted …section 73 ISA detention, police must provide certain particulars to allow further detention.

“It is a sad day for human rights as instead of moving forward. We are moving backwards.

“We do not keep up with the modern world with this judgement where we should uphold democratic and citizen rights. This judgment is pro-executive.”

Sivarasa on commenting the alleged assaults on his client while in detention,the appellate court did not deal with the discrepancy in the police testimonies, and this was not addressed in the judgment where there were some blows to the head, chest and bruises to the body.

“Detainees are incommunicado with the doctor. I remember Anwar seeing the same doctor after he was assaulted, he did not tell the doctor he was assaulted.

“This court did not appreciate what a person under ISA detention feels like. These are the realities of the detention without trial.”

Sivarasa also said the right for someone to have lawyer was not properly addressed by the court as he felt this court had made an error, and this would be posed in the apex court.

Abdul Malek, who is now parliamentary affairs coordinator for the opposition leader, said the decision would not weaken him.

“The authorities would use all existing bodies the parliament, judiciary, legislature and the police to maintain ISA.

“We need to mobilise NGOs, opposition parties and the BN component parties which are opposed to the Act to pressure the government to repeal the Act.”

He said he was disappointed with today’s decision and described it as worrying.

“The assaults did take place but the appellate court simply rejected the High Court findings.”

“I cannot forget what had taken place the assault and torture which I faced. I had hoped the court as a channel to uphold the rule of law to seek a redress.

“However, the High Court decision has been set aside and this is truly disappointing and sad.”

As the government had proposed to amend the ISA so that is harmonious with current times, today’s decision may affect that move, he said.

Black day for rights movement

Suaram spokesperson E Nalini also described today’s decision as a black day for the human rights movement, which has campaign for the repeal of the Act.

In 2007, then Kuala Lumpur High Court judge Mohd Hishamudin Mohd Yunus, in a landmark decision ruled that Abdul Malek’s detention during the reformasi demonstrations in 1998, were made in bad faith under Article 5 of the Federal Constitution.

In ruling the arrest unlawful and affirming there indeed was assault while in custody, Hishamudin, who is now a Court of Appeal judge, also said the nature of Abdul Malek’s interrogation was clearly for a political purpose and had nothing to do with genuine concern for national security.

Abdul Malek, was arrested under the ISA on the night of Sept 25, 1998, after addressing a demonstration earlier that day in Masjid Negara following the sacking and arrest of Anwar Ibrahim, who was then deputy prime minister.

He was detained under the preventive security law for 57 days, and was later released without being charged.

Abdul Malek filed his suit civil suit in March 1999, naming special branch officer Borhan Daud, the then police chief Abdul Rahim Noor and the government as respondents.

During the High Court trial, the plaintiff testified he was stripped naked in an air-conditioned room, blindfolded during interrogation, and physically assaulted up to 60 times, beaten until he was unconscious, forced to drink urine and subjected to sexual abuse.

He also told the court he saw Rahim punching him in his chin in the interrogation room when his blindfold accidentally dropped.

Former IGP ticked off

On the assault and battery claims, Hishamudin said he was convinced that it took place after major contradictions were found in the defendants’ witnesses compared to Abdul Malek’s “consistent statements”.

He also opined that the public prosecutor’s refusal to prosecute Abdul Malek for making false claims against Rahim implied that there was some truth in his claims.

The High court also ruled that it was unconstitutional for Abdul Malek to be denied access to his lawyer.

When making his decision on the award of exemplary damages, Hishamudin made strong statements about Rahim’s conduct as inspector-general of police in dealing with Abdul Malek’s case.

“The despicable conduct of the then IGP Rahim Noor was shameful and a disgrace that shows a bad example to the department of men under his charge.

“The award of exemplary damages for the plaintiff is to show the abhorrence of the courts against the gross abuse of power by the police and the use of the ISA,” he asserted.

Rahim was later charged for assaulting Anwar Ibrahim in the infamous black eye incident when the former deputy premier was held under ISA on Sept 20, 1998 – five days before Abdul Malek was arrested