“The behaviour of the defendants is inhumane, cruel and despicable, as the plaintiff was not just arrested and detained unlawfully for 57 days but was also subjected to a vile assault, unspeakable humiliation, prolonged physical and mental ill-treatment.”
NO HOLDS BARRED
Raja Petra Kamarudin
Ex-ISA detainee gets RM2.5mil in landmark decision
By Chelsea L.Y. Ng, The Star
19 October 2007
In an unprecedented move, the High Court awarded RM2.5mil in damages to an ex-ISA detainee for having been unlawfully arrested, detained and beaten up while in police custody in 1998.
High Court Judge Hishamudin Mohd Yunus granted the award after ruling that Abdul Malek Hussin had succeeded in suing former Inspector-General of Police Tan Sri Abdul Rahim Noor, a police officer and the Government for the misdeeds done to him during the detention.
“The behaviour of the defendants is inhumane, cruel and despicable, as the plaintiff was not just arrested and detained unlawfully for 57 days but was also subjected to a vile assault, unspeakable humiliation, prolonged physical and mental ill-treatment,” the judge said in his judgment yesterday.
SEE VIDEO: Malik Hussin reveals how he was tortured under ISA detention
SEE VIDEO ON YOUTUBE HERE (http://www.youtube.com/watch?v=pPc_V4_Htns )
He added that the arrest and detention were unlawful because Abdul Malek was not told of what he had done or intended to do that would pose a threat to national security.
Apart from ruling that the arrest and detention smacked of mala fide, the judge also said they were done for political purposes rather than for the sake of national security.
The case is the first where a former ISA detainee has won millions in damages.
In 1996, a former ISA detainee, Guracharan Singh, won his case for unlawful detention but was awarded nominal damages of RM1.
Yesterday, when Justice Hishamudin spoke of the inhumane acts, he was referring to Abdul Malek’s account of how Special Branch police officer Asst Supt Borhan Daud had slapped him thrice during the arrest at 10pm on Sept 25, 1998, blindfolded him and taken him to the police contingent headquarters here.
At the headquarters, Abdul Malek had told the court, he continued to be blindfolded and was led into an air-conditioned room before being stripped naked, verbally abused, hit in the face and body as well as having urine-like liquid poured into his mouth which was forced open.
He had testified that he knew Abdul Rahim was one of those who assaulted him in that room because at one point his blindfold slipped and he was able to see his assailants.
Justice Hishamudin said the practice of torture of any kind was to be detested.
“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 when awarding RM1mil in exemplary damages.
“The despicable conduct of the then IGP was shameful and a disgrace. He showed an extremely bad example to the thousands of men under his charge,” he said.
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.”
“Any gross abuse of this power, therefore, must be visited with an award of exemplary damages to ensure that the extent of abuse is kept to the most minimal, if not eliminated completely.
“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,” said Justice Hishamudin.
He said he believed Abdul 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 Abdul Malek's detention.
Apart from the exemplary damages, the judge also awarded general damages of RM1mil and RM500,000 for false imprisonment and the assault and ill-treatment, respectively.
Abdul Malek, 51, is now the chairman of a non-governmental organisation called Malaysians For Free and Fair Elections.
SEE VIDEO ON YOUTUBE HERE (http://www.youtube.com/watch?v=q4N137JI4w0 )
Dissent is democracy’s twin
THE Internal Security Act (ISA) is defended as a necessary evil for containing potential threats to national security. Under that broad objective, however, a whole range of civil liberties have been compromised ever since the law was promulgated in the early 1960s to contain the threat of communist terrorism.
Over the decades, the long list of ISA detainees have included opposition politicians, academicians, trade unionists, women’s rights leaders, environmental activists, social reformers and members of religious groups, among others. How these dissidents can be considered threats to national security is a question that has been posed time and time again, without being satisfactorily answered.
However, the scope for challenging the use of the ISA has been extremely constrained, since the police are empowered to detain anyone on the mere suspicion that he or she may be a threat to national security, the maintenance of essential services or to economic activity, as stated in Section 73(1) of the Act. Moreover, the minister is empowered to extend the detention order for up to two years, and in effect, indefinitely, without judicial review.
Last Thursday, a ray of hope emerged with the High Court decision to award RM2.5 million to former ISA detainee Abdul Malek Hussin for his detention for 57 days in 1998. Justice Mohd Hishamudin Mohd Yunus found that Abdul Malek’s arrest was unlawful because he was never told the grounds for his arrest, a right protected under Article 5(3) of the Federal Constitution. Furthermore, the judge found that Abdul Malek’s claim that he was never interrogated concerning any planned or actual violent act had been unchallenged. This made the use of the ISA unlawful, the judge said.
This judicial finding creates the space for peaceful dissent without fear of a reprisal from the state, a fundamental liberty that is the hallmark of developed democracies. It is time to recognise that the freedom to exercise basic human rights is integral to a maturing democratic tradition. And not until the people are free to express their views within the limits of a wholesome social order will we qualify to take our place among the nations whose opinions matter to the rest of the world.
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