The 'unlawful arrest' case filed by lawyer P Uthayakumar against the government and police resumed at the Kuala Lumpur High Court today and saw a magistrate filing his affidavit, much to the displeasure of the plaintiff.

Uthayakumar's lawyer M Manoharan ( right ) said magistrate Mohd Khairi Hamdan, who in September issued an arrest warrant against his client, should not interfere or show favour in the current case.

"The magistrate should not have gotten involved in the current case as it suggests that he is taking the DPP's (deputy public prosecutor) side. He shouldn't interfere in a dispute between two parties especially since he is not presiding over the case.

"Furthermore, this will set a bad precent and therefore the affidavit should be excluded from the case. We have made an objection against it to the High Court judge," he added when contacted.

The current case, which was filed after Uthayakumar's four-hour arrest for failing to cooperate with the police, is being heard by High Court judge Abdul Kadir Musa.

The magistrate's affidavit was submitted by DPP Mohamad Hanafiah Zakariah, who also made a second preliminary objection to the case's veracity.

"The magistrate is not a respondent in this case. We have not named him when applying for the case. We have however filed action against the attorney-general, the police and government for breaching the law ," said Manoharan.

Contradictory claims

The affidavit, which contains the magistrate's submission that he had allowed Uthayakumar to be heard when brought to his chambers upon his arrest on Sept 9, contradicted the latter's claims.

Uthayakumar had claimed that he was not given a chance to be heard - before the arrest warrant was issued - despite numerous communications to the police suggesting that it be done.

Earlier, Manoharan said the DPP filed another objection asserting that the case should be heard as a civil matter and not as a criminal proceeding.

When the case was first heard in October , the DPP had failed in his attempts to have the case dismissed from the criminal court.

However, Manoharan was adamant that the case be heard as a criminal proceeding. He is also seeking to declare the arrest warrant null and void.

The warrant was issued after Uthayakumar had failed to comply with the calls from the police to have his statement recorded over his alleged assault last May.

The lawyer, who specialises in championing cases involving police abuse, claimed that his assailants were police personnel, an accusation which has been denied.

Uthayakumar, who sought temporary asylum in the United Kingdom after the incident, said he refused to give a statement because he had no confidence in the police.

This morning's hearing was postponed after a 30-minute session and will resume on March 28.