Malaysian Bar, office-bearers awarded RM59,499 after winning part of appeal over 2022 independence march

PUTRAJAYA, Oct 21 —The Court of Appeal today partly allowed the Malaysian Bar’s appeal over its 2022 Walk for Judicial Independence, awarding RM59,499 in damages to the Bar and four of its office-bearers for violating their constitutional rights in connection with the march.

A three-member panel led by Justice Datuk Dr Choo Kah Sing ordered the government to pay RM19,499 in special damages to the Bar and RM10,000 each to Karen Cheah Yee Lynn, Mohamad Ezri Abdul Wahab, B. Anand Raj and Murshidah Mustafa, all office-bearers of the Bar when the suit was filed.

The march was held on June 17, 2022, to protest the Malaysian Anti-Corruption Commission’s (MACC) public announcement of an investigation into then Court of Appeal judge Datuk Mohd Nazlan Mohd Ghazali, now a Federal Court judge.

The Bar regarded the announcement as interference with judicial independence and a breach of the separation of powers.

On March 20 last year, the Kuala Lumpur High Court held that the police had acted ultra vires (beyond their powers) by imposing conditions prohibiting the march, but awarded the Bar only RM1 in nominal damages, a sum proposed by the Bar’s counsel.

The suit was filed on Oct 20, 2022, against six defendants, including former Dang Wangi police chief ACP Noor Dellhan Yahaya, the Inspector-General of Police, the Home Minister and the government, over alleged violations of the plaintiffs’ rights under the Peaceful Assembly Act 2012.

The plaintiffs claimed they were prevented from marching with about 500 members and interns from Padang Merbok to Parliament to submit a memorandum to then prime minister Datuk Seri Ismail Sabri Yaakob or his representative.

Delivering the judgment, Justice Choo, sitting with Justice Datuk Faizah Jamaludin and Justice Datuk Dr Lim Hock Leng, also set aside the High Court’s finding that Kuala Lumpur City Hall’s (DBKL) consent was required for the assembly at Padang Merbok.

The court held that the Bar’s notification to police under Section 9 of the Peaceful Assembly Act 2012 was valid.

“A letter from the Dang Wangi district police chief imposing conditions on the march had been issued out of time and was invalid.

“The Bar had notified police on June 3, 2022, but received the response only on June 16, less than 24 hours before the assembly. Under Section 14 of the Act, police must respond with any conditions within three days,” he said. 

However, the bench upheld the High Court’s dismissal of the false imprisonment claim, finding that the participants had not been totally deprived of their liberty.

“While participants were prohibited from marching to Parliament House, they were not physically restrained from leaving the area,” Justice Choo said.

The court also upheld the finding that the police were not liable for misfeasance in public office and dismissed the claim for misconduct in public office, as it failed to meet the high subjective threshold required.

The bench further declined to award general, aggravated and exemplary damages. It ordered interest at five per cent per annum on the sums awarded, from the date of the High Court’s judgment until full settlement, with no order as to costs.

The plaintiffs had sought special damages amounting to RM19,449, general damages and aggravated and exemplary costs, in addition to a declaration that their rights had been violated and a declaration that their detention was illegal and wrongful in law. — Bernama