Putrajaya loses bid to claim damages from Bersih over 2012 rally

Malay Mail
by PATHMA SUBRAMANIAM

KUALA LUMPUR, Jan 30 — The Malaysian government today lost in its civil suit against electoral reform group Bersih 2.0, as the High Court ruled that the latter was not liable for property damage during the group’s sit-in protest on April 28, 2012.

High Court judge Datuk John Louis O’ Hara, in his decision today, said that although the Peaceful Assembly Act is constitutional the Bersih 2.0 steering committee,  is not responsible for the damages caused.

Justice O’Hara also dismissed the government’s claim for RM110,543.27 in property damages as the “acts and omissions of the cops invariably contributed and resulted in the damage.”

“I find the plaintiff’s (the government) claim not to be proved on the evidence and I dismiss the plaintiff’s claim for a declaration, special damages and interest.

“It’s clear to this court that the damages that occurred only happened after the first defendant had called off the rally,” said O’Hara, referring to Bersih 2.0’s former chairman Datuk Ambiga Sreenevasan.

“Moreover, it was not shown to the satisfaction of the court that the damages that occurred were actually caused by the legitimate participants of the rally or by an independent agent,” he added.

Justice O’Hara noted that the government should use Section 7(a)(v) of the Act — which states a participant shall refrain from causing damage to property — against the “actual perpetrators of the damage”.

“Vicarious liability does not affect the organiser based upon the facts and evidence in this case,” he added.

But the judge rejected Ambiga’s counter claim that Section 6(2)(g) was unconstitutional, saying that the former Bar Council president, who challenged the constitutionality of the section did not manage to show how their rights were affected.

Section 6(2)(g) states that organisers are responsible to ensure that “the assembly will not endanger health or cause damage to property or the environment”.

O’Hara denied the defendants claims for cost except the group’s former steering committee member, Dr Wong Chin Huat, who was awarded RM21,000 in damages — partly for unlawful arrest, detention and assault during the April 2012 rally.

The judge also awarded Wong another RM30,000 in costs.

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 of RM110,543.27 from the then Bersih 2.0’s co-chairs Ambiga and A. Samad Said and 13 other committee members.

A total of 52 witnesses were called for this case, with 33 testifying for the government and 19 testifying for Bersih 2.0.