The Court of Appeal in a landmark decision today affirmed that the government and police have no right to institute a claim under the Peaceful Assembly Act 2012 for damages allegedly incurred in the 2012 Bersih 3 rally.
In upholding the Kuala Lumpur High Court decision, the three-member bench dismissed the appeal by the government and police against the Bersih steering committee members, including its then co-chairperson Ambiga Sreenevasan.
In an unanimous decision, Justice Rohana Yusof said the PAA cannot be used to institute a claim.
According to the judge, Section 6(2) of the PAA did not state the government's right to a civil action claim. Section 6 covers the responsibilities of organisers in having the rally.
"We are of the considered view that Section 6(2) of the PAA does not create a statutory duty, which if violated would necessarily create a right of civil action by the government.
"We find no reason to intervene with the findings of the trial judge (at the High Court), where the appellants have failed to prove their case.
"The trial judge having better advantage of (listening and perusing) the evidence (ruled that) the appellants failed to prove negligence by the respondents," she said.
Justice Rohana also said Section 3 and Section 39 of the Government Proceedings Act, when read together, does not entitle the government to sue for negligence or claim damages under the common law.
Section 3 deals with government's right to sue while Section 39 is about application to the government of certain statutory provisions.
Last year, High Court judge John Louis O'Hara ruled the PAA as constitutional but dismissed the claim by the government.
Justice Rohana sat with Justice Varghese George Varughese and Justice Mary Lim.
Each of the judges wrote separate judgments in the verdict, but Justice Rohana, who led the panel, read out the brief decision.
On the counter-claim by the sixth respondent, Wong Chin Huat, Justice Rohana allowed the government's appeal in part.
The appellate court affirmed the award of RM10,000 in aggravated damages and another RM5,000 for pain and suffering for Wong, who claimed that the police officers had assaulted him during arrest.
The court however allowed the government's appeal that Wong's arrest and detention were lawful and hence, removed the RM6,000 awarded to him by the High Court.
Landmark verdict hailed
Ambiga, who hailed the landmark verdict, said: "We are very pleased with the judgment and we are also pleased that each of the judges wrote separate judgments on different areas of the law.
"We are pleased that the court has taken the case seriously and came to a conclusion that the High Court judgment was correct."
Ambiga said the decision simply means that the government can't sue for damages under PAA.
"The court held that the government had failed to prove their case in any event," said the former Malaysian Bar president.
Quizzed whether the decision meant that the government can't file a suit under PAA, Ambiga said it appeared to be so.
Meanwhile, Bersih chairperson Maria Chin Abdullah expressed her delight with the decision which she said will have an impact on future rallies.
"The government can't sue for damages and under the PAA, the right to assembly is now protected and maintained.
"This is also an encouragement for Bersih 5 and Saturday's rally to arrest Malaysian Official 1. It's a big encouragement for the right to a peaceful assembly," she said.
Bersih 3 was held on April 28, 2012, and the rally calling for clean and fair elections was considered one of the biggest public assembly which attracted at least 150,000 people.
However, it was marred by violence allegedly carried out after Ambiga announced the end of the rally, where tear gas and water cannons were fired at protesters.
Following damages to police vehicles which amounted to RM122,000, a suit was filed by the police and government.
Initially Ambiga and Bersih were sued but the other steering committee members later made applications to be interveners.
An inquiry report by the Malaysian Human Rights Commission (Suhakam) released in 2013 said police had taken "unreasonable measures" which were not justified when trying to control the crowd during the rally.
The 80-page Suhakam report also said the police had acted in "bad faith" in the handling the rally.
Bersih and its steering committee members were represented by a team of lawyers including Tommy Thomas, Honey Tan, S Ravindran, Firdaus Husni and Lim Yee Chong.
Senior federal counsel Kamal Azira Hassan and SFC Normastura Ayob appeared for the appellants.
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