Today I lost my suit on my ISA detention in 2008 against the Police and Malaysian government at the high court. I was ordered to pay cost of RM50K to the government. The judge of my case is Yg Arif Datuk Su Geok Yam.
I am disappointed with the decision of the court. I have been arrested and detained by the police based on rumors that accused me for opposing azan of a mosque at Bandar Kinrara 5, Puchong.
The nazir of the mosque, Abdul Rahman also testified that I had nothing to do with the allegation. Besides, I have never ordered the azan in the mosque of Kota Damansara to be lowered as the mosque loud speaker was faulty.
I filed this suit in 2009 and only now I got the decision. In fact this decision was postponed 4 times before.
The ground given by the judge was that the high court is bound by its immediate superior court of appeal’s decision in the case of Borhan (March 2010) which followed the Federal Court’s decision in the case of Kam Teck Soon (2002), wherein it was decided that the police powers to arrest and detain under ISA is not questionable in the court of law.
It must be noted as argued by my counsel SN Nair, Kam Teck Soon was in the opinion of Yg Arif Datuk Lau Bee Lan to be erroneous as stated in her judgement in the case of Mohd Ezam, which was not accepted by the judge in my case.
My counsel SN Nair has also argued that high court ought to have followed the Federal Court’s decision in Darma Suria (October 2010) decided after Kam Teck Soon overruling the latter – wherein the objective test is to be applied by court to test the decision of the police to arrest and detain under the ISA.
However the judge dismissed my counsel’s argument on the basis that Darma Suria deals with POPO and not the ISA, unlike the case of Borhan.
In fact a thorough reading of Darma Suria’s case shows that the objective test must be used across the board whenever an act of Parliament confers subjective discretion to any authority including the police in respect of ISA. This was again overlooked by the judge in my case today.
My fear is that the judgement today will set a bad precedent for cases charged under POTA and The amended Sedition Act that was passed by Parliament lately, where in the court will be shut from questioning the arbitrary powers of police in conducting arrest and detention.
Further, the cost of RM50K awarded against me is manifestly excessive and unjust, as it bars other civilians and opposition leaders like me from bringing action against police for arbitrary arrest and conduct.
I am upset with the court decision today, but I am not defeated. I have instructed my counsel to file an appeal to the Court of Appeal.
Ironically today I am a victim of an unjust arrest and an unjust decision of court.
#Lawan Tetap Lawan!!!