On September 8, 2009, the Government of Malaysias appeal against the verdict by the Kuala Lumpur High Court Judge was heard at the Court of Appeal in Putrajaya.
In his judgment on October 18, 2007, Justice Datuk Mohd Hishamudin Mohd Yunus had granted ex-ISA detainee Abdul Malek Hussin an award of RM2.5 million in damages after ruling that Malek has succeeded in suing Defendant No.1 Assistant Superintendent of Police (ASP) Borhan bin Hj. Daud, a Police Officer with the Special Branch Dept., Police Headquarters (IPK), KL; Defendant No.2 the then Inspector General of Police (IGP) Tan Sri Abdul Rahim Noor; and Defendant No.3 the Government of Malaysia.
After about 3 hours of arguments, the Court of Appeal had reserved its judgment. The three judges said they needed more time to deliberate on the arguments put forward by the governments counsel and Sivarasa Rasiah, the counsel for Malek. The judges will inform both parties once they are ready to deliver their judgment.
Sivarasa, who is also the Member of Parliament for Subang, had asked the Court of Appeal to maintain the ruling of Justice Hishamudin, reiterating the various evidences and points that led to the said verdict.
Malek had originally sued the government in March 1999, demanding RM30 million in damages for human rights violations during his detention under the Internal Security Act, an act which allows the government to indefinitely detain people considered to be security threats.
In his judgment delivered on October 18, 2007, Justice Hishamudin had ruled that Maleks arrest and detention was unlawful, and that his allegations of assault were true, based on medical reports and contradictions in the testimony of police witnesses. The arrest and detention smacked of mala fide and was done for political purposes rather than for the sake of national security.
At the time of arrest, Abdul Malek, now 53, was a key activist of Reformasi, a movement that called for justice to be given to Anwar Ibrahim, the sacked Deputy Prime Minister who was himself subjected to ISA detention and brutal treatment while in police custody.
Malek was arrested in front of his house on the night of September 25, 1998. He was blindfolded, beaten, stripped naked, verbally abused, forced to drink urine, and physically and sexually assaulted. His penis was hit and an object pushed against his anus. He was held without trial. All in all, he was in police custody for 57 days until he was released on November 21, 1998.
Justice Hishamudin said the practice of torture of any kind was to be detested. He said that the Special Branch Department must not only be neutral but must also be seen to be neutral and non-partisan. It must be above politics. He said the despicable conduct of the then IGP was shameful and a disgrace. The IGP had shown an extremely bad example to the thousands of men under his charge. The judge stressed that the award of exemplary damages was necessary to show the abhorrence of the court of the gross abuse of an awesome power under the Internal Security Act. The practice of torturing detainees by the police can never and should never be condoned by the courts. The court must show its utmost disapproval.
The judge also said he believed Malek's story rather than that of the police officers because there were glaring discrepancies, as if it was being concocted to present some kind of chronology of events to cover up what had happened in the first four hours of Malek's detention.
The judge awarded RM1 million in general damages for false imprisonment, RM500,000 in general damages for the assault and ill-treatment and RM1 million in exemplary damages. He also awarded interest at the rate of 8 percent per annum on all the sums to run from the date of judgment until realization. He also ordered that all costs of the proceedings be paid by the defendants to the plaintiff.
Abdul Malek is currently the Parliamentary Affairs Coordinator in the office of the Opposition Leader. He was also previously the chairman of a non-governmental organization he helped form called Malaysians for Free and Fair Elections (MAFREL).
The court case was the first in Malaysia where a former ISA detainee had won millions in damages. On September 25, 1996, a former ISA detainee, Guracharan Singh Bachittar Singh @ Guru, a former air force sergeant, (whose original detention was under ISA for two years from Nov 3, 1989 to Oct 31, 1991) won an unlawful extended detention suit for losses suffered during his unjust extended detention from Oct 31, 1991 till Feb 5, 1993. The High Court awarded him nominal damages of RM1.00, yes that's right, Ringgit Malaysia One only.
Video by R. Vijay Kumar, Citizen Journalist
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Sivarasa Rasiah: You The Rakyat Be The Jury (Pt 1)by mediarakyat6,386 views
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