Court acquits PKR rep, rules not a crime to assemble peacefully

Nik Nazmi outside the Court of Appeal, today. – The Malaysian Insider pic by Najjua Zulkefli, April 25, 2014.The Court of Appeal today struck out the charge against Selangor's deputy speaker Nik Nazmi Nik Ahmad who was charged under the Peaceful Assembly Act for failing to give police a 10-day notice for a rally last year.

A three-man bench led by judge Datuk Mohamad Ariff bin Md Yusof also ruled in a unanimous decision today that Section 9 (5) of the Peaceful Assembly Act (PAA), which provides for punishment for failure to give 10 days' notice to the authorities before a protest, as unconstitutional.

The court said that while the police can impose restriction on peaceful assembly, they cannot penalise organisers and participants for non-compliance.

Ariff said section 9 (5) of the Act presents “some conceptual difficulty” as it considers peaceful assemblies lawful regardless of compliance with the notice.

“That which is fundamentally lawful cannot be criminalised,” he said when reading out a section of his judgement today.

Nik Nazmi, the Seri Setia state assemblyman, was charged under the PAA for not giving a 10-day notice to hold the Blackout Rally at the Kelana Jaya stadium last year, in the aftermath of the general election.

Ariff  said if an assembly was lawful, one could not at the same time declare it illegal.

He said section 9 (5) of the PAA was intended to impose a restriction as allowed under Article 10 (2) (b) of the Federal Constitution.

"Section 9 (5) is unconstitutional as it made no sense to charge the organisers when the assembly was peaceful," he said.

However, he said the requirement for an organiser to give the police a 10-day notice under section 9 (1) of the PAA was constitutional.

He said this was a law which was debated in Parliament and the court cannot substitute the views of the legislature.

Following this landmark decision, the bench acquitted Nik Nazmi of the charge of failing to give police sufficient notice before organising the rally.

Nik Nazmi had challenged the constitutionality of provisions in the PAA.

Putrajaya had taken the position that the restriction under sections 9 (1) and 9 (5) of the PAA was constitutional as Article 10 sanctioned it.

On May 17 last year, Nik Nazmi, who was then PKR's communications director, was charged in the Sessions Court for failure to give the police sufficient notice before organising the rally at the Kelana Jaya stadium on May 8.

The rally was held to protest the alleged widespread electoral fraud during the May 5, 2013 general election which returned the ruling Barisan Nasional coalition to power.

Nik Nazmi failed last November to get the Shah Alam High Court to quash the charge against him on grounds that sections 9 (1) and 9 (5) of the PAA were unconstitutional.

High Court judge Noor Azian Shaari said the two clauses of the PAA, which were the basis of the charge against Nik Nazmi, were reasonable and did not go against Article 10 of the constitution on grounds of national security.

Nik Nazmi ran the risk of being fined up to RM10,000 and if convicted, faced the prospect of being disqualified from public office.

Datuk Mah Weng Kwai, the second judge on the bench, said in his judgement that section 9 (5) made a mockery of the constitutional right for peaceful assembly and freedom of speech.

The judge declared that the requirement to give police the 10-day notice under section 9 (1) was unconstitutional.

He said there was nothing to suggest the gathering threatened public order and national security.

"It was a static assembly and not a street procession. People came voluntarily and nobody complained of traffic congestion," he said.

He said the assemblers should take precedent over road users.

The third judge, Datuk Hamid Sultan Abu Backer, in his judgement said that the nation must be administered by rule of law or else there would be interference in domestic affairs like what has happened in other parts of the world.

"All fundamental rights must also be consistent with international norms and practices," he added.

He said the court must give a purposive interpretation to the PAA or else it would erode confidence in the judiciary and invite anarchy.

Hamid Sultan said it was also the social responsibility of the police to provide security during a peaceful gathering.

"In this case, the police can only regulate the gathering and there cannot be penal sanctions against organisers and assemblers," he said.

However, he said the police could act against anyone for breaching the law as provided under the Penal Code as the PAA did not allow for aggressive or violent protest. – April 25, 2014.