Putrajaya loses final bid to claim compensation from Bersih over damages

A Federal Court panel today reportedly dismissed Putrajaya’'s application for leave to appeal a previous ruling by the Court of Appeal in Bersih 2.0's favour. — Picture by Saw Siow Feng
A Federal Court panel today reportedly dismissed Putrajaya’'s application for leave to appeal a previous ruling by the Court of Appeal in Bersih 2.0's favour. — Picture by Saw Siow Feng

KUALA LUMPUR, Jan 19 — The federal government today lost its final bid to sue electoral reform group Bersih 2.0 for property damages during the latter's third mega rally in 2012.

A Federal Court panel today dismissed Putrajaya’s application for leave to appeal a previous ruling by the Court of Appeal in Bersih 2.0's favour and did not give an order on costs.

The panel was chaired by Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum and also composed of judges Tan Sri Hasan Lah and Datuk Seri Abu Samah Nordin.

“We won the Bersih 3 case, for the third time. Judge threw out the application, no more appeals. Done and dusted,” the group said on its official Twitter account.

When contacted, Bersih 2.0 chairman Maria Chin Abdullah said the significance of today's decision is that government bodies cannot sue for costs and damages from peaceful assembly organisers.

"I hope that the government will learn from this case which started since 2012 . What the government must recognise is that public assemblies reflect the pulse of civil societies and the political health of the country in the pursuit of democracy.

"Tolerance and broadmindedness must be fully understood and harnessed in order that we have an operating and vibrant country. So don't penalise or suppress speech, thinking and ideas but see them as enhancing their work as well," she told Malay Mail Online.

Honey Tan, a lawyer who represented Maria and two others who were among the 15 sued by the government, said the Federal Court judges did not provide their reason for the decision but believed that they were in agreement with Bersih 2.0's argument that the Government of Malaysia is not a "person who has interests" under Section 3 of the Peaceful Assembly Act (PAA) 2012.

Section 3 defines "person who has interest" as a person who lives, works or carries on business or owning residential or commercial property near or at the place of assembly.

"The most important impact of this decision is that the government may not sue organisers of peaceful assemblies for any damage to properties belonging to it. S3 is clear that the government is not a "person who has interests".

"In the concept of human rights, people are rights holders, and the government is the duty bearer. It is nonsensical for a duty bearer to sue rights holders," she told Malay Mail Online when contacted.

The federal government had sought leave to appeal both the Court of Appeal's decision to reject its compensation claim and to maintain a RM15,000 portion to be paid out to former Bersih 2.0 committee member Dr Wong Chin Huat for various things, including his pain and suffering.

In its leave to appeal bid, the government had asked the Federal Court today if Section 6(2)(g) of the PAA imposes a statutory liability for the payment to the Malaysian government of any damages or expenses that arose from a breach of obligations.

Section 6 of the same law touches on the responsibilities of assembly organisers, with Section 6(2)(g) specifically saying that rally organisers shall ensure that the assembly will not endanger health or cause damage to property or the environment.

Last August 23, the Court of Appeal unanimously ruled that the federal government was not entitled in law to sue Bersih 2.0 for the 2012 property damages, dismissing the government’s appeal on its main claim for over RM110,000 in compensation.

The Court of Appeal had also then allowed part of the government's appeal on the counterclaim by Wong, ruling that it did not need to pay RM6,000 out of the RM21,000 in damages previously awarded to him.

On January 30, 2015, the High Court similarly ruled in Bersih 2.0's favour and said the group was not liable for property damage during its sit-in protest on April 28, 2012, dismissing the government’s claim for RM110,543.27 in property damages.

Among other things, High Court judge Datuk John Louis O’Hara had noted that the police’s own actions and omissions contributed and resulted in the damage, also saying then that the damages occurred after the rally was called off and that it was not proven satisfactorily that legitimate rally participants had caused the damage.

On May 23, 2012, the government sued Bersih 2.0 under Section 6 (2)(g) of the Peaceful Assembly Act (PAA) 2012, claiming compensation for alleged damages to property — including 15 police vehicles — during the rally.

The government had sought for special damages amounting to RM110,543.27 from the then Bersih 2.0’s co-chairs Datuk Ambiga Sreenevasan and Datuk A. Samad Said and 13 other committee members.

This is the first-ever case where the government had used the Peaceful Assembly Act to sue rally organisers for property damage allegedly occurring during rallies.

The PAA came into effect on April 23, 2012, just days away from the Bersih 3 rally.

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