Mahkamah Rayuan membatalkan pertuduhan terhadap YB Nik Nazmi -
Timbalan Speaker DUN Selangor yang didakwa di bawah Akta Perhimpunan Aman kerana tidak memberikan notis 10 hari ketika menganjurkan Himpunan Blackout di Stadium Kelana Jaya pada Mei tahun lepas.
Panel 3 hakim diketuai Hakim Mohd Ariff Mohd Yusof memutuskan Seksyen 9 (1) Akta Perhimpunan Aman (PAA) yang memerlukan rakyat untuk memberikan 10 hari kepada pihak berkuasa sebelum protes sebagai tidak berperlembagaan.
Mahkamah Rayuan memutuskan, polis boleh mengenakan sekatan ke atas himpunan aman tetapi tidak boleh menghukum penganjur atau orang yang berhimpun kerana tidak mematuhinya.
PUTRAJAYA (April 25): In a landmark judgement today, the Court of Appeal Court ruled that it is unconstitutional to criminalise organisers of peaceful assemblies for failing to give notice of the event to the police.
The court ruled that that a provision of the Peaceful Assembly Act 2012 (PAA), which imposes a fine of up to RM 10,000 for breach of the 10-day notice required to hold a peaceful assembly, was against the Federal Constitution and should be removed from the Act.
The three-member bench, comprising Justices Datuk Mohamad Arif Md Yusof, Datuk Mah Weng Kwai and Datuk Dr Hamid Sultan Abu Backer, said this in their decision on the appeal by Selangor deputy speaker Nik Nazmi Nik Ahmad over a charge against him under the PAA.
Nik Nazmi was appealing the decision by the High Court on Nov 1 last year to dismiss his application to strike out the PAA charge against him at the Session's Court.
He was charged for not providing the 10-day notice to the Petaling Jaya police district chief to hold the Black505 rally on May 8 last year.
Nik Nazmi's appeal was based on the constitutionality of sections 9(1) and 9(5) of the PAA. Section 9(1) requires an organiser to provide a 10-day notification to the authorities before a rally takes place and section 9(5) provides that a maximum RM10,000 fine ne given if the organisers fail to adhere to section 9(1).
The second ground for appeal was that it was selective prosecution against an opposition elected representative as Nik Nazmi is the Seri Setia state assembly member and a staunch PKR member.
Justice Arif ruled that more evidence must be adduced to back this claim. However it will be redundant following the bench's decision on the first ground of appeal.
Considering the severity of the matter as it concerned the Federal Constitution, the judges decided to deliver three separate judgments.
They differed somewhat in their justifications as to why it was wrong to criminalise those involved in peaceful assembly.
However, they unanimously agreed that the holding of a peaceful assembly cannot be criminalised despite non-compliance of the notice period.
"That which is fundamentally lawful cannot be criminalised," Justice Arif said referring to his judgment.
Justice Mah in his judgment said that section 9(5) is "ultra vires" in regard to criminal breach and is unconstitutional.
In the same vein, Justice Hamid Sultan ruled that "if the assembly itself was peaceful, there was no point in penalising the organisers".
Slight disagreement over notification period
There was however some disagreement over the 10-day notification period.
Justices Arif and Hamid Sultan agreed that the 10-day period was more or less not a limitation to the freedom to assemble.
Justice Arif, however, noted that when the PAA bill was tabled in parliament and debated upon "extensively", the initially suggested notification period was reduced.
After a major outcry by opposition MPs and civil society members, amendments were made to the notification period in Nov 2011 and it was brought down from 30 days to 10 days.
However those opposed to the bill claimed that the amendments were merely cosmetic changes which did not change the then bill's restriction to assemble peacefully.
The opposition MPs staged a walkout and did not vote for the bill when it was passed in the Dewan Rakyat in 2011.
Justice Hamid Sultan in his judgment said that the organisers and participants had the "social obligation" to inform the police of any assembly.
However, Justice Mah in his judgement said that the notification period itself was not reasonable.
The full-written judgments of all three judges will be available on Monday, said Justice Arif.
'A ray of sunshine in bleak times'
Nik Nazmi was represented by lawyers, N Surendran, Latheefa Koya, Syahredzan Johan and Eric Paulsen.
Speaking to the the press later Surendran said that the landmark judgement was a "ray of sunshine" in bleak times.
"It is a historic moment in Malaysians’ battle to enforce their fundamental rights," he said.
Syahredzan said the decision seals the fact that there is no "unlawful" assembly under the PAA and that the police should stop curbing peaceful assemblies.
Surendran added that the people could now freely participate in the coming anti-GST May 1 rally.
Paulsen chimed in and said that a copy of the judgment would be sent to the police.
Paulsen added that this judgement would have major repercussions in the numerous other cases where people have been charged under the PAA.
"We will write in to the cases we are handling and demand not only that those charge be discharged but also acquitted," he said.
Latheefa said with the court's decision to strike out section 9(5), the PAA finally made more sense of facilitating peaceful assemblies.
The prosecution has 30 days to appeal. However there was no indication today as to whether they will do so.
The lawyers also dedicated their victory to the late Karpal Singh, the veteran constitutional and criminal lawyer who died in a road accident a week ago.
Foto hiasan
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