KUALA LUMPUR: The Malaysian Government has lost its claim against the Bersih 2.0 steering committee for damages to public property during the Bersih 3 rally on April 28, 2012.
This is the first time the Government had filed a civil suit against the organiser of a rally under the Peaceful Assembly Act (PAA) 2012. Former Bersih 2.0 co-chairman S. Ambiga and 14 fellow committee members were named as defendants.
On Friday, the Government failed to get a declaration that the steering committee, as the rally’s organiser, had violated Section 6(2)(g) of the PAA (a provision on the responsibility of the organiser to ensure that the assembly will not endanger health or cause damage to property or the environment).
High Court judge Justice John Louis O’Hara said he found that the Government’s claim could not be proved based on the evidence adduced during the full trial.
“It is clear to this court that the damage which had occurred, only happened after the first defendant, had called off the rally.
“Moreover, it was not shown to the satisfaction of the court that the damage which occurred was actually caused by the legitimate participants of the rally or by independent agents,” he said in his judgment on Friday.
Justice O’Hara held that vicarious liability does not attach to the organiser based upon the facts and evidence in this case.
“There was also the issue of the acts and omissions of the police that invariably contributed to the damage for which the plaintiff now claims,” he said.
Therefore, he said, to hold the organiser liable would not only be to go beyond the scope ambit and intention of the Section 6(2)(g) of the Act, but also be against the evidence tendered in court.
“Moreover, there is Section 7(a)(v) of the PAA (a participant shall refrain from causing damage to property) which the plaintiff ought to utilise against the actual perpetrators of the damage caused and loss incurred,” he said.
He also held that Section 6 of PAA was constitutional and did not find the provision was inconsistent with various Articles in the Federal Constitution, in rejecting the counter-claims by other Bersih committee members.
“The defendants, who challenged the constitutionality of the Act, did not show how their rights were affected by the Act,” he said.
However, he ordered the Government to pay RM30,000 in costs to committee member Dr Wong Chin Huat while the others had to bear their own costs.
Justice O’Hara also ordered the Government to pay Dr Wong RM21,000 in damages over his counter-claim for assault, breach of his constitutional right, unlawful arrest and detention as well as the manner he was arrested.
Ambiga told the media later that it was a vindication of Bersih and of the people’s right to assemble.
In the statement of claim filed on May 15, 2012, the Government claimed that the rally resulted in damage to public property including police vehicles.
It also sought for RM110,543 in special damages to repair the vehicles damaged during the incident.
In her counter-claim filed on June 8, Ambiga said she was entitled to damages for grave violation of her fundamental liberties and/or by reason of the abuse of power by the Government and its agencies.-The Star