Federal Court: Judges must act when rights of detainees are breached

A five-man bench, in dismissing the government's appeal for false imprisonment, says it is the duty of judges to uphold the Federal Constitution.

Lawyer J Amardas (left) says today’s ruling allows detainees to file suits without having to first set aside remand orders. With him is lawyer Salim Bashir.

PUTRAJAYA: A Federal Court bench today held that the courts must interfere when the freedom of individuals is affected by unlawful detention on the part of law enforcement agencies.

Justice Balia Yusof Wahi said as custodians of justice, the courts must give effect to the constitutional rights of detained persons.

Balia, who delivered the landmark ruling, said assault in custody must be abhorred and the police cannot be allowed to abuse their power.

“It is the solemn duty of judges to uphold the constitution when there is a dispute between the state and individuals,” he said in dismissing the government’s appeal against the 2016 Court of Appeal ruling which awarded damages for false imprisonment.

Carpenter Mohd Hady Yaakop was awarded RM50,000 for false imprisonment and another RM50,000 in exemplary damages by the Court of Appeal.

However, the apex court, chaired by Chief Judge of Sabah and Sarawak Richard Malanjum, raised the exemplary damages to RM100,000.

This means the total awarded to the carpenter was RM150,000.

The court also awarded Hady, who was represented by lawyer J Amardas, another RM30,000 in costs.

Other members of the bench were Hasan Lah, Aziah Ali and Jeffrey Tan Kok Hwa.

Hady had earlier in the High Court won RM160,000 in damages for assault. The government did not appeal this ruling.

Balia said magistrates, Sessions Court judges and registrars who issued remand orders under Section 117 of the Criminal Procedure Code should also strictly follow the law and court circulars.

A remand order of up to 14 days is given to law enforcement agencies to complete their criminal investigations without any interference.

“The object of the Section 117 remand order is to protect the subject and must be strictly complied with. It is subject to judicial scrutiny,” he said.

Balia said the onus was on the police, adding that there must be reasonable grounds to detain a suspect for involvement in a crime.

“The remand order must not be taken as a mere formality,” he added.

In Hady’s case, Balia said the remand order was issued but the police did not know the purpose of its application.

He said in this case, the order was not complied with as there had been a dereliction of duty by two policemen and suppression of facts from the magistrate when the order was made.

Balia added that Hady was abused for the extraction of information.

“We agree with the Court of Appeal that there was a transgression of Hady’s right under Article 5 of the constitution, and he must be allowed to bring an action,” Balia said.

Hady had sought a declaration that his maximum 14-day detention by police, from Nov 22, 2008, was unlawful and in breach of his constitutional rights.

He further alleged that he had been assaulted during detention and suffered injuries for which he was hospitalised.

Hady named five policemen, the Melaka police chief and the government as parties to his suit in 2011.

On Nov 22, at 4.15am, Hady had accompanied his friend, Abdul Manan Hassan, to the Melaka police headquarters in Bukit Beruang regarding an assault on a policeman at Restoran Zubaidah at MITC, Melaka.

Hady said he was waiting at the guardhouse. About 30 minutes later, a plainclothes policeman came and took him away.

He said he was taken to a room, blindfolded, stripped and assaulted despite denying any involvement in the fight at the restaurant.

He was produced before a magistrate and an application for a remand order was made by Inspector R Manimaran.

Hady was subsequently taken to Melaka Hospital as he had sustained injuries while in the lock-up.

On Nov 28, while still in hospital, his remand was extended for another seven days.

Hady said he was not informed of his right to a lawyer, neither was his family informed of his detention.

Amardas said today’s ruling was a departure from previous court judgments that a detainee must first set aside the Section 117 detention order, either by appeal or revision, before filing a suit.

“The bench has made a forward-looking judgment and has given effect to the constitutional rights of detained persons,” he said.

The Bar Council’s Salim Bashir, who appeared as a friend of the court, said every law enforcement officer and court official involved in issuing remand orders must read the judgment.

“It has set the law clear on procedures to be adopted on remand proceedings,” he added. - FMT