Kit Siang challenges rare court order

Beh Lih Yi | Dec 12, 07 3:18pm

Opposition leader Lim Kit Siang filed an application to challenge the restraining order granted by the Kuala Lumpur Magistrate’s Court preventing polls reform group Bersih members from gathering in the vicinity of Parliament House yesterday.

Critics have described the order as being “invalid and unconstitutional”.
In his writ of summons filed with the Kuala Lumpur High Court this morning, Lim said the order contravened a Parliament directive and a provision in the Criminal Procedure Code (CPC).
“We are asking the court to declare the order as null and void,” the opposition leader, who was accompanied by DAP’s 11 parliamentarians, told reporters later.
The last time the veteran politician had gone to court over a public interest case was in 1988 when he challenged the granting of the North-South Expressway concession to Umno-linked company United Engineers Malaysia in 1988.
The restraining order was applied for by the Sentul police and granted by the magistrate’s court on Monday. This was the second such order issued by the court, with the first pertaining to the Nov 25 rally organised by the Hindu Rights Action Force.
Yesterday, the police arrested 26 people when a group of Bersih members went to Parliament House to submit a memorandum. Seven were arrested while leaving the building after handing over the memorandum to opposition members.
Following this, Lim had described the incident as the “blackest day” for Parliament in its 50-year history.
‘Vague wordings’
In his application, the opposition leader named the Sentul district police chief (who applied for the order), the inspector-general of police (IGP) and the government as defendants.
In his statement of claim, he argued that the police contravened a Parliament directive – adopted through a motion usually passed at the onset of each session – when arrests were made in the Parliament compound.
“(The IGP) is required by law to ensure, inter alia, all police personnel in his command are prohibited from in any way causing disturbance within the precincts of the Dewan Rakyat,” he said in reference to the parliamentary motion.
Apart from that, he also questioned the manner of the execution of the order which was obtained less than 24 hours before the rally and argued that it could not have been gazetted as required under Section 90 (2) of the CPC.
“The infringement of the provisions of Section 90 (2) of the CPC renders the said order invalid,” he said, adding that the wording of the order were also “vague”.
“As opposition leader, (I am) duty-bound in the public interest to ensure (PAS leader) Musafa Ali and the six activists who had been given clearance to enter Parliament House were not in any way subjected to arrest while leaving the Parliament precincts in keeping with the directive,” he said.
Lim’s counsel and DAP chairperson Karpal Singh stressed that those arrested in the Parliament compound were there “legitimately” as allowed by the police.
“What the police did was high-handed,” he said. Karpal, who is also MP for Bukit Gelugor, added that he is contemplating citing the police for contempt of Parliament through a motion in the Dewan Rakyat.
He said a certificate of urgency will also be filed to urge the court to expedite the hearing on this matter and that he hoped the “unhealthy precedent” would not be repeated.
Pending the disposal of the case, Karpal said the police should refrain from obtaining similar orders.
‘This is monstrous’
In a related development, constitutional expert Prof Dr Abdul Aziz Bari argued that the court order was unconstitutional as it overrode the Bersih petitioners’ constitutional right to freedom of assembly.
“I don’t see how the court in a country with a written constitution like ours can go on mysterious grounds (in granting the restraining order),” he told Malaysiakini.
“How can we place ordinary law above the Federal Constitution? This is monstrous!” said the International Islamic University Malaysia law lecturer.
He argued that the police, even under Section 27 of the Police Act which empowers it to act on an illegal assembly, do not have absolute power to stop rallies as they are required to assess the situation objectively.
“Of course, we have seen in many cases the police just bulldoze their way through,” he said, adding that he hoped the judiciary will protect the rights of citizens.
Bersih’s memorandum was in protest of a constitutional amendment to extend the retirement age for Election Commission staff.
The amendment was adopted unanimously yesterday after all opposition MPs in the House staged a walkout in protest of the arrests and the amendment.