KUALA LUMPUR: The Court of Appeal has set aside a High Court ruling in favour of a former anti-crime activist who sued the government for false imprisonment and assault.
Justice Azimah Omar, who delivered the broad grounds of a three-member bench, said the High Court judge erred by relying on a Federal Court ruling handed down last year when deciding on R Sri Sanjeevan’s suit.
“The High Court judge misdirected himself in retrospectively applying the apex court ruling (M Nivesh Nair v Abdul Razak Musa) when he made his ruling on June 28 last year,” Azimah said.
She said the error warranted appellate intervention.
She also said it was manifestly unjust to condemn the police who applied for the remand order in 2016, and the magistrate who allowed the application, as it was valid and constitutional at the time.
Azimah said a retrospective ruling would be utterly “chaotic, problematic and will open the floodgates” for other challenges.
On April 25 last year, a five-member Federal Court chaired by Chief Justice Tengku Maimun Tuan Mat said Sections 4 and 15B of the Prevention of Crime Act (Poca) intrude into the judicial domain and, therefore, violate the doctrine of separation of powers.
Nivesh, along with four others, had been held under Poca and ordered to be detained without trial in Simpang Renggam and Bentong for two years.
They were freed immediately following the Federal Court ruling.
Section 4 lays down the procedure to be followed by magistrates when granting remand orders.
Meanwhile, Section 15B, which is an ouster clause, restricts judges from inquiring into the grounds for detention.
Azimah also said that Sanjeevan, the former Malaysian Crime Watch Task Force chairman, should have filed a separate claim for assault and battery.
The appeal was heard on June 21 before a panel chaired by Justice S Nantha Balan. Also hearing the appeal was Justice See Mee Chun.
The bench also awarded RM60,000 in costs to the government.
Sanjeevan was arrested for alleged involvement in criminal activities on July 10, 2016.
He was produced the following day before a magistrate who issued a 21-day remand order under Poca.
He filed a habeas corpus application for unlawful arrest before the expiry of the remand.
Another High Court judge ordered Sanjeevan’s release on July 26, 2016, because of a breach of a provision in Poca.
Sanjeevan filed the suit in 2018, seeking a declaration and damages.
He named investigating officer Poonam E Keling, the inspector-general of police and the government as defendants.
The government, in its defence, denied that the arrest was unlawful and said the assault did not take place.
Counsel S Preakas and V Satchi represented Sanjeevan, while senior federal counsel Norfuzani Nordin represented the government.