Rayuan k’jaan ditolak, bekas tahanan ISA dapat RM5.16 juta

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http://hakam.org.my/wp/2016/06/29/rayuan-kjaan-ditolak-bekas-tahanan-isa-dapat-rm5-16-juta/
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Sumber: Malaysiakini

The Palace of Justice in Putrajaya - File pix

The Palace of Justice in Putrajaya – File pix

Mahkamah Persekutuan hari ini menolak rayuan oleh polis dan kerajaan terhadap kuantum ganti rugi am diarahkan supaya dibayarkan kepada lima bekas tahanan Akta Keselamatan Dalam Negeri semasa era Reformasi pada tahun 2001.

Mahkamah tertinggi negara itu juga mengekalkan pampasan RM10,000 sehari yang diberikan kepada lima mereka sepanjang tempoh penahanan mereka yang menyalahi undang-undang.

Setiap mereka dikurung dari 41 hingga 53 hari, iaitu ketika dalam jagaan polis sebelum dipindahkan ke pusat tahanan Kamunting.

Mereka adalah Ahli Parlimen Batu Chua Tian Chang atau Tian Chua, ADUN Hulu Klang Saari Sungib, aktivis Hishamuddin Rais, bekas Ahli Majlis Tertinggi PKR Badrul Amin Baharom dan Badaruddin Ismail, yang lebih dikenali sebagai Pak Din.

Pampasan itu bagaimanapun tidak meliputi tempoh dua tahun ketika mereka ditahan di kem Kamunting untuk tahanan ISA, selepas dilabel sebagai pengganas pada masa itu oleh Ketua Polis Negara, Tan Sri Norian Mai.

“Kami menolak rayuan,” kata Hakim Besar Sabah dan Sarawak Tan Sri Richard Malanjum, yang mempengerusikan panel lima anggota Mahkamah Persekutuan.

“Keputusan oleh Mahkamah Rayuan dikekalkan,” katanya.

Mahkamah juga menganugerahkan kos RM30,000 kepada kelima-lima mereka selepas menolak rayuan itu.

Hakim lain yang bersidang sama adalah Mahkamah Persekutuan Tan Sri Ahmad Ma’arop, Tan Sri Abu Samah Nordin, Tan Sri Ramly Ali dan Tan Sri Zaharah Ibrahim.

Dengan keputusan hari ini, jumlah keseluruhan yang kerajaan perlu bayar kepada lima tahanan itu dijangka berjumlah RM5.16 juta.

 

Court dismisses appeal over amount awarded in unlawful detention case
Source: The Star Online

PUTRAJAYA: The Federal Court dismissed an appeal by the Government and two others to decide on the specific method of calculation over the award of general damages in unlawful detention cases.

This ruling will enable five former ISA detainees to enjoy over RM5mil in total damages, costs and interests within a year, said their lawyer Ho Kok Yew.

The five are Batu MP Tian Chua, PAS Hulu Klang assemblyman Saari Sungib, activist Hishamuddin Rais, Badaruddin Ismail and former PKR supreme council member Dr Badrulamin Bahron.

Yesterday, Chief Judge of Sabah and Sarawak Justice Richard Malanjum, who chaired a five-man panel, made the ruling after hearing submissions by parties.

“We dismiss it (the appeal),” said Justice Malanjum, who allowed RM30,000 in total costs.

The Government and two others had on Oct 21 last year been allowed to challenge the RM2.78mil award given to the five over false imprisonment and defamation.

At the outset, Senior Federal Counsel Kamal Azira Hassan argued that it would serve as a guidance to lower courts if the question of law on “whether the determination of quantum for a long period of unlawful detention is based on the progressive reducing scale or flat scale” is answered by the apex court.

Currently, he said, the trend for the determination of quantum for unlawful detention or false imprisonment cases is based on a flat scale which was excessive as there were courts which had awarded up to RM1mil in damages to such detainees.

SFC Kamal argued that it would be best if the assessment for award of general damages for a long period of unlawful detention to be calculated on “progressively reducing scale” to get a fair, adequate and reasonable compensation.

“We do no want to enrich the claimants. They must be compensated but adequately,” he argued.

However, Ranjit Singh, lead counsel for the five detainees, argued that the matter should be decided by the trial judges after considering the length and condition of detention of those affected persons.

“The issue of quantum of damages is best left to the trial court having the audio-visual advantage, will also be able to develop a “feel” of the case.

“It should be up to the judges to decide whether to award damages on a global lump sum basis or if they wish to break it down into a daily basis,” he said.

Ranjit said there was no need to reduce the RM10,000 per day award in general damages given to his clients in the civil claim and that it reflected fair compensation for their treatment and circumstances involved in the case.

A High Court has awarded the former detainees RM4.05mil in damages over unlawful detention under the Internal Security Act (ISA) in 2001 and defamation.

Justice Lau Bee Lan had on Oct 2 ,2012 ruled that the detention of Tian Chua, Saari, Hishamuddin, Badaruddin and Dr Badrulamin under Section 73 of the Internal Security Act 1960 was unlawful.

The five had filed their suit against former Inspector-General of Police Tan Sri Norian Mai, the Home Minister and the Government in April 2004 for unlawful arrest and detention under the ISA as well as defamation.

Among others, they succeeded at the High Court to get an award of RM15,000 in general damages for each day they were detained.

They were each detained between 41 and 54 days. The court also granted RM30,000 each in aggravated damages. The judge also awarded a total of RM100,000 for four plaintiffs for defamation. She also allowed RM200,000 in costs.

In her ruling, Justice Lau said the court found words uttered by Norian in April 2001 during a press conference in relation to the detention were defamatory.

She held that the detention was not based on national security but more towards political considerations.

Court of Appeal judge Justice Abdul Wahab Patail, who chaired a three-man panel, had on Dec 11, 2014 reduced the general damages to RM10,000 per day for false imprisonment.

Justice Abdul Wahab dismissed the appeal by Norian and two others on the defence of qualified privilege for defamation.

Justice Abdul Wahab also dismissed the appeal by the former detainees on the quantum of damages for defamation.