A Federal Court judge today rebuked a senior federal counsel for submitting that a reduction in awards can be sought to avoid "unfair enrichment" of those detained under the Internal Security Act.
Kamal Azira Hassan, representing the police and government, had applied to reduce the general damages for five former ISA detainees.
The five - Tian Chua, Saari Sungib, Hishamuddin Rais, Badrul Amin Baharom, and Badaruddin Ismail - had been granted RM10,000 per day for the duration of their unlawful detention during the 2001 reformasi era.
Kamal Azira explained to the court that it was fine to award high damages for their first day, due to the shock of the arrest and detention, but said it should be lowered for the subsequent days.
This prompted the Chief Judge of Sabah and Sarawak, Richard Malanjum, to question how Kamal Azira was able to put a price on freedom.
"Do you mean people go to jail voluntarily to get rich?
“How do you put a lesser monetary value on a person's freedom. To me, it (liberty) is priceless. It is a breach of their constitutional right,” the judge said when hearing submissions from Kamal Azira.
Earlier, Kamal Azira said the court had to be very careful to ensure the award was reasonable.
He also cited a legal precedent through the Thompson case, in which damages were awarded on a declining rate.
"They should be compensated but we fear the amount is overly adequate and the compensation should not be on a flat rate scale," he said.
“Furthermore, there was no evidence that they were assaulted or tortured."
Inhumane conditions
However, lawyer Ranjit Singh, who appeared for the five with Razlan Hadri Zulkifli and Ho Kok Yew, said his clients were subjected to inhumane conditions when they were arrested.
He said they had been blindfolded, slept on a wooden board, were placed in a cell under police observation, and were forced to walk barefoot to the toilet despite the dirty surroundings.
“Furthermore, they had difficulty performing their prayers under such circumstances,” the lawyer said.
He also rebutted Kamal Azri's argument that a detainee should be paid less for every day spent in prison.
"Are we saying that for a person like Nelson Mandela, who was imprisoned for 27 years, their final years should be considered less than the earlier years?" he asked.
He added that the Thompson case did not apply to this case as it only involved detention for several hours.
He also told the apex bench that the Court of Appeal had already decided to reduce the amount from RM15,000 to RM10,000 a day, and that it was a global amount taking into consideration the facts of the case.
Ranjit said the Court of Appeal had stated in its judgment that the police must be seen to be fair, objective and independent.
He added that the appellate court had also said the award should be sufficient and must be substantial, and a message must be sent out to prevent unlawful detention.
“Looking at the total figure, it is reasonable, judging by the length of detention owing to the conditions of their detention,” he said, adding that they were not cross-appealing the RM10,000 daily award.
“As much as we look at the Thompson case, in the end and ultimately, I feel there should be no guideline. The issue is best left to the court as the trial court has the audio video advantage,” Ranjit added.
In the end, the five-member bench dismissed the government's appeal.
Commenting on today's decision, Razlan said the award should be a “tombstone” for the ISA detention.
Although the ISA has been repealed, it is now replaced with the Security Offences (Special Measures) Act 2012.- Mkini
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