The Court of Appeal today upheld a lower court ruling that the detention of cartoonist Zulkiflee SM Anwar Ulhaque by the police in 2010 was lawful.
PUTRAJAYA: The Court of Appeal here today upheld a High Court’s ruling that the arrest and detention of political cartoonist Zulkiflee SM Anwar Ulhaque, popularly known as Zunar, by police in 2010 was lawful.
A three-member panel led by Abdul Aziz Abdul Rahim also upheld the decision of the High Court which had held that the seizure of 66 of the cartoonist’s books and a painting was unlawful and had ordered that damages be given to him (Zulkiflee), with the quantum to be assessed by the High Court.
Justice Abdul Aziz and two other Court of Appeal judges Mohamad Arif Md Yusof and David Wong Dak Wah unanimously dismissed Zulkiflee’s appeal to set aside the High Court’s decision on his arrest and detention.
The panel also dismissed the cross-appeal brought by ASP A Arikrishna, ASP Marina Hashim, the then Inspector-General of Police Ismail Omar, the Home Ministry and the Malaysian government against the High Court’s ruling that the seizure of the books and painting were unlawful.
Justice Abdul Aziz said the court unanimously found that there were no merits in Zulkiflee’s appeal as well as the police and government’s cross-appeal.
“Alam Mydin Meera’s (the High Court judge concerned) conclusion that Arikrishna was justified in his opinion that there was reasonable suspicion that Zulkiflee had contravened the provision of the Sedition Act 1948, notwithstanding that until today the relevant authority has not banned the book or that no charge for any offence under either the Sedition Act or the Printing Presses and Publications Act 1984 has been preferred.
“We do not think that there is anything wrong with the arresting officer i.e. the 1st respondent (Arikrishna) forming his opinion that the contents were seditious by flipping through the pages of the book Cartoon-o-phobia and by looking at the collage,” he said in his 37-page judgment.
Justice Abdul Aziz said the court found that the judicial commissioner was correct in his conclusion that there was no cogent evidence to indicate that Marina had taken him (Zulkiflee) for a ride to various police stations merely to thwart the launch of his books on the same day of his arrest.
“The fact that no charges were ever preferred against Zulkiflee in respect of the arrest and the publication of the books is in our view insufficient evidence to suggest that there was malice in the conduct of the defendants,” he said.
He said that Zulkiflee’s detention and further detention was lawful and that his (Zulkiflee’s) complaint that he was remanded unnecessarily by police for investigation was without merit.
No time limit
In his judgment, Justice Abdul Aziz said it was the court’s view that police investigation into any complaint or reported crime was entirely within the discretion of the police as to methodology or time taken as there were various factors to be considered.
“Whilst we agree that the law does not impose a time limit on the police to complete their investigation and that no law imposes any time frame on the Attorney-General to decide whether or not to prosecute the alleged offender once the investigation is complete, we are constrained to say that what is reasonablen in any circumstance depends on the facts and circumstances of each case,” he said.
He said the court also shared the view of the judicial commissioner that to further detain the books belonging to Zulkiflee without any further action to ban them for their obnoxious contents that affront the public or to keep them as material evidence by charging him in court for the alleged offence was to deny him his constitutional right to make a living under Article 5 of the Federal Constitution from the sale of those books.
On June 15, 2011, Zulkiflee and his company Sepakat Efektif Sdn Bhd filed a civil suit against Arikrishna, Marina, Ismail Omar, the Home Ministry and thengovernment for unlawful detention.
In his statement of claim, Zulkiflee said that a police team led by ASP Arikrishna raided his office on Sept 24, 2010 just hours before he was supposednto launch Cartoon-o-phobia, arrested him and seized 66 books titled ‘Cartoon-0-Phobia’ as well as a cartoon drawing.
Zulkiflee claimed that he was taken to several police stations within Kuala Lumpur and Selangor and remanded overnight at the KL International Airportmpolice station for alleged incitement.
He questioned the basis for his arrest, remand and seizure of his works, arguing that the actions were illegal and unconstitutional, and aimed at sabotaging the launch of his book.
Lawyer R Sivarasa said he would discuss with Zulkiflee on whether to bring the matter up to the Federal Court. Senior federal counsel Normastura Ayob appeared for the government and the police.
“How could the judges rule that my detention was legal but the confiscation of my book was illegal?
“Mind you, I am the author of the book. If the book is okay and not banned, why was I, the author, arrested and detained? What offence did I commit?” he asked in a statement.
He also questioned the judge’s finding that the police had cause for suspicion that the book was seditious.
“But shouldn’t that suspicion have a concrete basis? Under what logical ground did the police declare that my cartoon book is seditious, thus giving them the right to detain me?”
“At the time of my detention, Cartoon-O-Phobia was just about to be launched and not available in the open market yet. If the police thought there were any suspicious elements about the book, they could at least ask me for a few copies, inspect the contents, then declare the book illegal and charge me.
“That would be a fair and acceptable process to all parties. Instead, the police raided my office, seized the book and right there and then arrested me, before knowing the content of my book.
“This is clearly an abuse of power by the police,” he said.
He said the decision today meant the government has essentially classified drawing political cartoons in Malaysia as a crime.
“And, no surprises, the High Court Judge and the three Appeals Court judges confirmed it.
“I will give three copies of my latest cartoon book, The Pirates of the Carry-BN, to the three judges as a present and hope they will go through them to understand what political cartooning is all about,” he said.