The High Court has ruled that the Peaceful Assembly Act 2012 (PAA) is constitutional but dismissed the government’s claim for damage allegedly incurred during a Bersih rally three years ago.

The court sitting in Kuala Lumpur decided this in the government's claim against former Bersih chairperson Ambiga Sreenevasan and 14 other steering committee members of the electoral reform movement.

The government had filed a claim seeking costs for alleged damage totalling RM122,000 for repairing police vehicles destroyed during the rally, other costs, interests and other relief deemed fit by the court.

 

Each Bersih steering committee member also filed a counter-claim to challenge the constitutionality of Section 6(2)(g) of the Act.

 

The provision is on the responsibility of organisers in ensuring the assembly will not endanger the health or cause damage to property or the environment.

 

This is the second constitutional challenge on various provisions in the Act, following the landmark Appeals Court decision on former Selangor deputy speaker Nik Nazmi Nik Ahmad’s case that sought to declare Section 9 (5) of the Act unconstitutional.

Section 9(5) is the punishment given for not giving the 10 days' notice before a rally is held. That section has since been declared unconstitutional.

 

On the challenge against the constitutionality of Section 6(2)(g) of the PAA, Justice John Louis O’Hara ruled it does not violate Article 5(1), Article 8(1) and Article 10(1) of the Federal Constitution, and is the responsibility of the rally organisers.

 

“As such the court finds PAA 2012 as constitutional,” he ruled.

 

Article 5(1) says no person shall be deprived of life and liberty, while Article 10(1) affirms the right to freedom of expression and assembly, all in accordance with the law.

Article 8(1) affirms that all persons are equal before the law and require equal protection under the law.

Organiser not vicariously liable

 

Despite maintaining the constitutionality of the PAA, Justice O’Hara, basing his decision on the facts and evidence presented, held the rally organiser not vicariously liable for the damages.

 

“It is clear to this court that the damages that occurred only happened after Ambiga had called off the rally.

 

“Moreover, it was not shown, to the satisfaction of the court, that the damages that occurred were actually caused by the legitimate participants (the people in the rally) or by independent agents.

 

“Hence, I find the plaintiff's claim cannot be proved, on the evidence,” the judge said.

 

He said that to therefore hold the organiser liable would go beyond the scope, ambit and intention of Sec 6 (2)(g) of the PAA, and also against the evidence tendered.

 

Moreover, Justice O’Hara said under Section 7(a)(v) of the PAA, the government ought to sue the actual perpetrators who caused the damages.

 

He granted RM21,000 in total damages to former steering committee member Wong Chin Huat ( right ) for his unlawful arrest, unlawful detention, and the assault he suffered.

 

In addition, he awarded RM30,000 as costs to Wong.

 

This follows that Wong was wrongfully arrested as the police did not state the grounds for his arrest and he was also assaulted by the police.

An inquiry report by the Malaysian Human Rights Commission (Suhakam), released in 2013, said police had taken “unreasonable measures” that were not justified in trying to control the crowd during the rally.

 

The 80-page Suhakam report also said the police force had acted in "bad faith" in the handling of the Bersih 3.0 rally.

 

The historic rally calling for clean and fair elections on April 28, 2012, was the biggest public assembly in Malaysia.

 

It attracted at least 150,000 people, but was marred by violence, allegedly carried out by police personnel, against journalists who were covering the protest as well.