Bar Council wins 'rights' judgment against DBKL

Six years ago, Kuala Lumpur City Hall (DBKL) enforcement officers brought down three banners at the Bar Council headquarters that were put up for its Human Rights Day celebration.

Recently, the High Court in Kuala Lumpur entered judgment against the KL City mayor for the DBKL action. It ruled that the banners on human rights do not fall within the realm of ‘advertisement' that requires a licence from DBKL.

Judicial Commissioner SM Komathy Suppiah also awarded the Bar Council general damages of RM12,000 and RM320 as special damages for the banners. 

The incident also saw then Bar Council Human Rights committee chairperson Edmund Bon (above) arrested and charged.

However, Bon was later acquitted and discharged after the prosecution discontinued its action.

Komathy's grounds of judgment on the issue were highlighted in the Loyar Burok blog yesterday.

The decision against the KL mayor, dated Oct 8, is seen as victory for human rights, with Human Rights Day being celebrated around the world on Dec 10 every year

On July 10 this year, six human rights defenders, who were arrested by the police during the Human Rights Walk on the same day the banners were pulled down, also won their case for wrongful arrest and detention and KL High Court judge John Louis O'Hara awarded them RM10,000 in damages.

The six who were arrested by the Dang Wangi police in 2007 were Sivarasa Rasiah (now Subang MP), N Surendran (Padang Serai MP), lawyers Amer Hamzah Arshad, Latheefa Koya, Eric Paulsen and activists Johny Andu @ Abu Bakar Adnan and Nooraza Othman.

Action filed in 2009

The Bar Council in 2009 filed its action on the 2007 tearing down of the banners put up at its premises to celebrate Human Rights Day, arguing that DBKL's action was unconstitutional and violated the freedom of expression.

The three banners stated ‘Stop the Patronage, Stop the Rot', ‘As I Believe? Freedom of Expression through Art, Music, Culture and Conscience...' and ‘Rakyat Hakim Negara' (People are the nation's judge).

City Hall men came about noon and ordered that the banners be taken down, arguing that they were advertisements within the meaning of a by-law and hence a licence was required to put them up. 

The Bar Council was told that since it did not have a licence for the banners, City Hall could remove them. The enforcement officers then took down the banners while Bon was arrested for trying to stop them.

Judicial Commissioner Komathy in her 21-page judgment said the requirement for a licence for a banner only applied for a commercial product or service.

Using the example of the gigantic banner with the immortal words of former Chief Justice Abdul Hamid Mohamad, ‘Buat kerja' (Perform your work), Komathy asked if the court required a licence for the banner that was to motivate the staff or to state the ethics of judiciary.

"The banner was displayed for 12 to 15 months or so... Was the banner said to be running foul of the by-law as it was put up without a licence? I think not. There is no compelling reason to give the phrase a wider meaning (like advertisement) as sought by the defendant," she ruled.

Liberal meaning would bring absurd results

Komathy agreed with the submission of the Bar Council's lawyers, led by Ranjit Singh, Razlan Hadri Zulkifli and Jamie Wong, that if a literal meaning was adopted in terms of advertisement, it would lead to absurd results as even advertisements that merely expressed ideas, opinions, principles and values would then require a licence. 

"I agree with the plaintiff that a liberal interpretation would produce absurd results, as pointed out in their submissions.

"It would certainly not promote good order and governance within the jurisdiction of the City Hall and stifle the rights of ordinary citizens to put up banners that are not commercial in nature.

"If the draftsman had intended to include private,  non-commercial advertisements in the definition, it is reasonable to expect that this would have been easily stated, clearly and expressly. On any footing, that has not been done," she ruled.

She noted that if an exhaustive approach was adopted, then banners wishing people during festivals such as Deepavali, or a simple happy birthday message put up at the house, would require a licence and this, Komathy said, should not be the case.

"By-laws do not apply to non-commercial advertisements," she said in awarding costs to the Bar Council.

The KL mayor was represented by Thangaraj Balasundram and Nalani Murugiah.