I have filed an application in the Kuala Lumpur High Court to challenge the legality of the court order obtained by the police barring Bersih activists and the public from Parliament on Monday, 11th December 2007 as null and void.
Karpal Singh is assisted by M. Kulasegaran in preparing the writ of summons in the case Lim Kit Siang vs OCPD Sentul, Inspector-General of Police and the Malaysian Government. My statement of claim, filed with the Kuala Lumpur High Court yesterday, follows:
STATEMENT OF CLAIM
1. The plaintiff is a Malaysian citizen of age and at all material times, Opposition leader, Dewan Rakyat and Member of Parliament (Ipoh Timur).
2. The first defendant is the OCPD, Sentul.
3. The second defendant is the Inspector General of Police.
4. The third defendant is the Government of Malaysia and the plaintiff pleads that at all material times, the first and second defendants were the agents and/or servants of the third defendant which is vicariously liable for the acts and/or omissions of the first and second defendants.
5. The plaintiff pleads that at the commencement of the 11th Parliament in May 2004, the following motion was unanimously approved by the Dewan Rakyat:-
“Bahawa Majlis ini memerintahkan Ketua Polis Negara menjaga supaya selama Penggal Dewan Rakyat yang ada sekarang, jalan-jalan melalui lorong-lorong menuju ke Dewan ini hendaklah senantiasa terbuka dan boleh dilalui dan jangan ada apa-apa halangan menghalang ahli-ahli hendak pergi dan balik dari Dewan ini, jangan berlaku apa-apa kacau-bilau di jalan-jalan menuju ke Dewan ini, dan supaya jangan ada huru-hara di Bangunan Dewan ini dan berhampiran dengan bangunan ini; dan Setiausaha Dewan Rakyat hendaklah menyampaikan perintah ini kepada Ketua Polis Negara yang tersebut itu.” (‘the said directive of the Dewan Rakyat’)
6. The plaintiff pleads by the said directive of the Dewan Rakyat, the second defendant was required by law to ensure, inter alia, all police personnel in his command were prohibited from in any way causing a disturbance within the precincts of the Dewan Rakyat.
7. The ex-parte order obtained by the first defendant under section 98 of the Criminal Procedure Code vide Criminal Application No. 89-0293-07 at the Magistrates Court, Kuala Lumpur dated the 10th of December, 2007 (‘the said order’) purportedly prohibiting the respondents i.e. Dr. Syed Azman Bin Syed Ahmad, Mohamad Bin Sabu, Syed Shahrir Bin Syed Mohamud, Adnan Saad and ‘Mana-mana orang yang berkenaan’ is vague in import and substance and the said order to the best of the plaintiff’s knowledge, having been issued on the 10th of December, 2007 could not have been gazetted by the 11th of December, 2007 as required by section 90(2) of the Criminal Procedure Code which requires publication of the said order in the Gazette and a copy of same being posted at such place as may be fittest for conveying the information to the first, second, third and fourth respondents and anybody else connected therewith. A copy of the said order was posted along the road leading to the entrance of the Dewan Rakyat. The infringement of the provisions of section 90(2) of the Criminal Procedure Code renders the said order invalid. Further, the fifth respondent being designated as ‘mana-mana orang yang berkenaan’ is in the said order referred to as ‘mana-mana penyokong BERSIH’ which also renders the said order invalid and of no effect.
8. The plaintiff pleads one Dato’ Mustafa Ali together with the Democratic Action Party (‘DAP’) Member of Parliament for Seputeh, Theresa Kok and 6 other activists from BERSIH, a coalition for clean and fair elections, at a press conference in the lobby of Parliament, distributed memorandum entitled ‘SAY NO TO THE “SAVE RASHID” AMENDMENT OF THE CONSTITUTION’ dated the 11th of December, 2007 to Members of Parliament including the plaintiff.
9. The said Dato’ Mustafa Ali and the 6 activists from BERSIH were lawfully at the lobby of Parliament after having been cleared at the police roadblock outside the road leading to the gate of Parliament.
10. The plaintiff pleads all the said 6 activists from BERSIH were detained at the Parliament car park and taken to the Kuala Lumpur Contingent Police Headquarters and released at 4 pm after having been held there for 2 hours. The said Dato’ Mustafa Ali was also arrested as he was leaving the entrance to Parliament House without being assigned any reason for having been arrested. All 6 activists from BERSIH and the said Dato’ Mustafa Ali were unconditionally released the same day.
11. The plaintiff pleads as Opposition leader, he was duty-bound in the public interest to ensure Dato’ Mustafa Ali and the said 6 activists who had been given clearance to enter Parliament House were not in any way subjected to arrest while leaving the precincts of Parliament in keeping with said directive of the Dewan Rakyat.
12. The plaintiff pleads he together with the opposition DAP members of Parliament met up with the Speaker of the Dewan Rakyat, Tan Sri Ramli Ngah Talib, in his chambers to protest the arrests made which reflected adversely on the sanctity of Parliament. The said Speaker promised to take up the matter with the second defendant.
13. As a result of the acts of the first and second defendants, the said directive of the Dewan Rakyat has been contravened.
14. WHEREFORE, the plaintiff prays for the following orders:-
(i) a declaration that the said order under the hand of Azniza Binti Mohd Ali, Magistrate, Kuala Lumpur in Criminal Application No. 89-0293-07 is null and void and of no effect;
(ii) a declaration that the second defendant has through the acts of police personnel under his command contravened the said directive of the Dewan Rakyat;
(iii) costs; and
(iv) any other and/or further relief deemed fit and proper by this Honourable Court.
Dated this 12th day of December, 2007.