Putrajaya loses appeal against Bersih 2.0 over 2012 property damage suit


Source: The Malay Mail Online

Participants shout slogans during a rally organised by pro-democracy group Bersih 2.0 near Dataran Merdeka in Kuala Lumpur. — Reuters pic

Participants shout slogans during a rally organised by pro-democracy group Bersih 2.0 near Dataran Merdeka in Kuala Lumpur. — Reuters pic

PUTRAJAYA, Aug 23 ― The Court of Appeal unanimously today ruled that the federal government is not entitled to sue electoral reform group Bersih 2.0 for property damages during a 2012 rally.

Justice Datuk Rohana Yusuf, who chaired the three-judge panel, dismissed the government’s appeal on its main claim for over RM110,000 in compensation from Bersih 2.0.

“We do not find any provision in the Peaceful Assembly Act 2012 that clearly stipulates the right to claim by the government,” she said when reading the summary of the panel’s decision.

Rohana said the panel found that Section 6(2) of the PAA did not create a statutory duty which would otherwise have created “a right of civil claim by the government” if the duty was breached, adding that the federal government was similarly not given the right to sue for negligence under another law.

“We also find Section 3 of the Government Proceedings Act read together with Section 39 of the same Act does not entitle the government to sue for negligence or for a claim of damages under common law.

“We further find that even if there was a right of claim in common law for negligence in this case, we have no reason to interfere with the findings of the learned trial judge who found that the appellant had failed to prove its case of negligence against the respondents based on the facts before him,” she said when upholding the High Court’s previous ruling in favour of Bersih 2.0.

However, Rohana said the panel is allowing part of the government’s appeal on the counterclaim by former Bersih committee member Dr Wong Chin Huat.

The ruling means that the government does not need to pay RM6,000 out of the RM21,000 in damages previously awarded to Wong.

“We agree with the Senior Federal Counsel that no case of unlawful arrest and detention has been made out because the police in this case were lawfully exercising its powers under the Criminal Procedure Code read together with the Police Act,” she said.

She said the Court of Appeal upheld the remaining portion of the RM21,000 damages that the government has to pay to Wong, namely RM5,000 for pain and suffering and RM10,000 in aggravated damages.

The two other judges on the panel today are Datuk Varghese George Varughese and Datuk Mary Lim Thiam Suan.

The judges have written three separate judgments that touch on three different areas of the law for their unanimous ruling on this court case.

Last January 30, the Kuala Lumpur High Court ruled that Bersih 2.0 was not liable for property damage during its sit-in protest on April 28, 2012, dismissing the government’s claim for RM110,543.27 in property damages.

Among other things, High Court judge Datuk John Louis O’Hara had noted that the police’s own actions and omissions contributed and resulted in the damage, also saying then that the damages occurred after the rally was called off and that it was not proven satisfactorily that legitimate rally participants had caused the damage.

On May 23, 2012, the government sued Bersih 2.0 under Section 6 (2)(g) of the Peaceful Assembly Act (PAA) 2012, claiming compensation for alleged damages to property — including 15 police vehicles — during the rally.

The government had sought for special damages amounting to RM110,543.27 from the then Bersih 2.0’s co-chairs Datuk Ambiga Sreenevasan and Datuk A. Samad Said and 13 other committee members.