KUALA LUMPUR, Sept 21 ― Former journalist Sidek Kamiso can sue the police for unlawfully arresting him and trespassing into his house in the wee hours of the morning over an alleged Twitter insult, lawyers have said.
Civil liberties lawyer Syahredzan Johan said Sidek could file a civil lawsuit against the police for breaching his constitutional rights by arresting him without a warrant for an alleged breach of the Communications and Multimedia Act (CMA) 1998.
“When we talk about unlawful arrest, it means your personal liberty has been violated, your freedom has been denied ― that's the consequence of unlawful arrest,” he told Malay Mail Online when contacted yesterday.
He pointed out that Section 258 of the CMA says that a police officer may arrest with a warrant for offences under the same law, further highlighting that it appears that no investigation has been conducted by internet regulator, the Malaysian Communications and Multimedia Commission (MCMC), first before the police arrest as required.
Syahredzan was hesitant to describe the arrest as amounting to an abuse of power that can be challenged through a misfeasance lawsuit, but said the police's actions in Sidek's case fall outside of their powers under the CMA.
“If they can show there is an abuse of power, if there's proof of that, maybe misfeasance of power but of course it would be difficult to prove. When you talk about abuse, you have to show deliberate intent, it must not be like a honest mistake,” he said.
Even with the police's general powers to make arrests without warrants, they can only do so for offences that are listed as seizable offences in the Criminal Procedure Code, namely those where the maximum jail sentence is three years and above.
But for offences like the commonly-used Section 233 of the CMA with a maximum jail term of one year, the police need a warrant when making arrests, he said.
Two other lawyers similarly pointed out the same provision, with New Sin Yew saying that the arrest without warrant was clearly unlawful.
“I think that arresting Sidek and searching his house at 4am in the morning without warrant over a tweet is harassment. Police powers being used to harass is an abuse of power. Sidek can and should sue,” he said.
As for lawyer Fahri Azzat, he said Sidek can file for judicial review, or alternatively a civil suit to sue the police for their breach of statutory duty and possibly negligence over the unlawful arrest.
“I would say their failure to obtain a warrant is, without more, difficult to say an 'abuse of power'; it is a breach of their statutory duty.
“Carrying out the arrest in breach of that statutory responsibility renders the arrest and detention under it illegal. I think Sidek should definitely sue them for the arrest,” he told Malay Mail Online.
All three lawyers highlighted that Section 247 of the CMA generally requires a search warrant, while Section 248 allows for the search and seizure to be carried out without a warrant if a police officer with at least the rank of an inspector has “reasonable cause to believe” that delay caused by the obtaining of a warrant would adversely affect investigations or result in tampering, removal or destruction of evidence.
But all three were sceptical of the pressing need to secure evidence over the alleged online remark through the early morning search and arrest.
According to Fahri, if the police are unable to prove that the conditions required under Section 248 exists for them to conduct the search without a warrant, “then he should sue for trespass, unlawful search and seizure and the damages arising from that which he suffered”.
“I don't know enough of the facts to say whether their search without a warrant was unlawful but given the nature of the offence, I don't see how there is any urgency or likelihood of evidence tampering.
“What did they have to search for really? It was a tweet! To me the search has an element of harassment and intimidation,” he said.
On Monday, Sidek’s wife Norlin Wan Musa said that several plainclothes officers had entered their Petaling Jaya house at 4.30am to arrest her husband without explaining why he was arrested, later learning that he was taken to Johor for a police probe.
Inspector-General of Police Tan Sri Khalid Abu Bakar said on Monday that Sidek was being probed for allegedly abusing social media through a tweet on the death of PAS spiritual leader Datuk Dr Haron Din, claiming then that no arrest warrant or search warrants are required for such offences.