We now have 2 differing Court of Appeal decisions on a single issue
Conflicting judgment on rally organisers baffles lawyers
Yesterday’s Appeals Court judgment against R Yuneswaran, which found the fine against the organiser of the 505 rally in Johor Baru to be ‘constitutional’, poses a huge question mark on future cases.
Lawyers say the conflicting decisions – from a court of the same stature, ruling on the constitutionality of the same section under the same law – will only befuddle the outcome of other cases of similar nature.
The about-turn by the Court of Appeal has also made history of sorts.
“This is probably the first time the same court has ruled contradictorily on the same section,” lawyer New Sin Yew told Malaysiakini.
When contacted, New said the Court of Appeal should be bound by its earlier decision.
“As a general rule, the Court of Appeal is bound by its own decisions. It’s curious that the Court of Appeal chose to depart from its previous decision in the Nik Nazmi Nik Ahmad’s case,” he said.
Lawyer Sivarasa Rasiah, who represented Yuneswaran, said yesterday that only the Federal Court should have the power to overturn the precedent set in Nik Nazmi’s case.
“It is an unsatisfactory state of the law and against the normal judicial conventions, where you have one Court of Appeal basically overruling another Court of Appeal,” he told reporters yesterday.
Thursday October 1, 2015 MYT 11:51:14 PM
Court of Appeal rules Peaceful Assembly Act legal
PUTRAJAYA: The Court of Appeal on Thursday declared the Peaceful Assembly Act legal, a ruling that departs from an earlier ruling of another Appelate Court.
Court of Appeal president Justice Md Raus Sharif ruled that Section 9(1) of the Peaceful Assembly Act (PAA) 2012 was constitutional and that rally organisers could be fined for failing to give prior notice.
This diverged from another Court of Appeal panel’s landmark decision that struck out a similar charge faced by Seri Setia assemblyman Nik Nazmi Nik Ahmad, on grounds that criminalising the right to assemble was unconstitutional.
“We are of the firm opinion that Section 9(1) does not run contrary to Article 10(1)(b)… we depart from the opinion taken in the case of Nik Nazmi,” said Justice Md Raus.
Article 10(1)(b) of the Federal Constitution enshrines the right to assemble peacefully.
The three man bench, which included Justices Mohd Zawawi Salleh and Zamani A. Rahim, restored Johor PKR executive secretary R. Yuneswaran’s conviction and RM6,000 fine.
Yuneswaran’s lawyer R. Sivarasa told reporters that having differing Court of Appeal decisions on a single issue would confuse future similar cases.
“If you asked me now if rallying could be criminal, I’d have two answers for you,” he said.
Wednesday May 14, 2014 MYT 3:18:36 PM
Chegubard, two SAMM members recharged and discharged for organising Turun rally
KUALA LUMPUR: A Sessions Court here has given a discharge not amounting to an acquittal to Badrul Hisham Shaharin and two other Solidariti Anak Muda Malaysia (SAMM) members who were recharged under the Peaceful Assembly Act (PAA) 2012.
On Wednesday, Judge Ahmad Bache ruled that he was bound by the Court of Appeal decision, which declared Section 9(5) of the Act unconstitutional.
Earlier, Badrul Hashim, or popularly known as Chegubard, together with Mohamed Bukhairy and SAMM propaganda director Edy Nor Reduan were recharged under Section 9(1) of the PAA for failing to notify police 10 days before organising the Turun rally protesting the price increase of goods and the introduction of the Goods and Services Tax (GST).
On April 28, the three were given a discharge not amounting to an acquittal by the Sessions Court over their involvement in the rally.
Surendran argued that Nik Nazmi cannot be tried under Section 9(5) as the Appellate Court has ruled it to be unconstitutional, and thus the section is null and void law unless the Federal Court overturns the decision.
“How do you charge someone under a law that does not exist as of now?” he said.
4:00PM May 6, 2014
Court discharges Nik Nazmi from fresh charge
Seri Setia assemblyperson Nik Nazmi Nik Ahmad was today discharged from a fresh charge brought against him by the federal government under the Peaceful Assembly Act (PAA) 2012.
Petaling Jaya Sessions Court judge Yasmin Abdul Razak said Nik Nazmi had already been discharged and acquitted on the same charge by the Court of Appeal merely 11 days ago.
Yasmin ordered a discharge not amounting to an acquittal.
She said the prosecution should instead appeal the Court of Appeal decision with the Federal Court and not attempt to re-file the case in the Sessions Court.
The charge was identical to the one he faced in the same sessions court in May last year, following the rally that was held on May 8.
“I have to accept that I am the Sessions Court judge. You have placed me with a daunting task here,” Yasmin told the prosecution team after spending an hour listening to submissions from Nik Nazmi’s lead counsel N Surendran and deputy public prosecutor Shaharuddin Wan Ladin.
Surendran, who stood up to ask for a bar in trial even before a plea could be recorded from Nik Nazmi, said that the act of the prosecution was in contempt of the Court of Appeal’s decision and a clear contravention of Article 7(2) of the federal constitution, which says that a person who has been acquitted or convicted cannot be charged again under the same offence.
“It’s outrageous and it doesn’t make any sense when the Court of Appeal had ruled that the provision (he was charged under) is unconstitutional,” Latheefa said.
YAHOO! NEWS MALAYSIA
KUALA LUMPUR, May 5 — Selangor legislative assembly deputy Speaker Nik Nazmi Nik Ahmad, who was acquitted by the Court of Appeal ten days ago, is expected to be charged with the same offence tomorrow.
Nik Nazmi, also Seri Setia assemblyman, was charged under Section 9(1) of the PAA on May 17 last year for failing to notify police 10 days prior to the Blackout 505 rally at the Kelana Jaya Stadium on May 8. He was acquitted by the Court of Appeal on April 25.
The police called to inform the Nik Nazmi that he would be “recharged” under Section 9(5) of the Peaceful Assembly Act (PAA) 2012 tomorrow, his lawyer Latheefa Koya told Malay Mail Online.
ASP Lim from the Petaling Jaya district police headquarters told Malay Mail Online that he is not at liberty to release information regarding the matter.
Surendran was the lawyer who led the challenge against the Peaceful Assembly Act (PAA), which led to the Court of Appeal ruling on April 25 that Section 9 (5) of the Peaceful Assembly Act (PAA) providing for punishment for failure to give 10 days’ notice to the authorities before a protest was unconstitutional.
Lawyer gives A-G 48 hours to file contempt of court against top cop
Lawyer N. Surendran has given 48 hours, from tomorrow, to Attorney-General Tan Sri Abdul Gani Patail to file a contempt of court against the country’s top cop for ignoring the Court of Appeal decision that allows Malaysians to assemble without fear.
He said the statement by Inspector-General of Police (IGP) Tan Sri Khalid Abu Bakar had put the administration of justice in disrepute and that itself was an act of contempt.
According to national news agency Bernama, Khalid had said police had begun probing into Thursday’s anti-GST rally in Kuala Lumpur for allegedly violating several conditions of the Peaceful Assembly Act (PAA), including failure to give 10-day notice before holding the assembly and bringing smoke bombs, flares and weapons to the gathering.
“I will write to the A-G on Monday to institute contempt proceedings against the IGP as his statement is a blatant disregard and a flagrant flouting of the Court of Appeal decision.
“I will give him 48 hours due to the urgency of the matter, failing which I will do so myself,” he told The Malaysian Insider.
4:41PM May 3, 2014
10-day assembly notice stays, says top cop
The requirement for organisers to furnish police with a 10-day advance notice before a rally, as stipulated under the Peaceful Assembly Act 2012 (PAA), is still in effect despite a recent Court of Appeal ruling declaring it unconstitutional to punish those who do not comply.
According to Inspector-General of Police Khalid Abu Bakar, this is due to the fact the Attorney-General Chamber’s is appealing the April 25 ruling.
Hence, Khalid said this renders Section 9(1) of the PAA “still relevant” and “still good”.
Section 9 (1) stipulates the requirement for the 10 days’ notice while Section 9(5) punishes those who do not adhere to it.
“As long as the matter is under appeal, the legal requirement is still relevant and we (police) will enforce it,” he said.
7:39AM Apr 29, 2014
Ipoh judge ignores COA ruling on PAA
Two Sessions Court judges yesterday meted different rulings on the application of Section 9(5) of the Peaceful Assembly Act (PAA) 2012, which has been declared unconstitutional by the Court of Appeal last Friday.
Section 9(1) of the law stipulates that organisers of a public assembly must provide 10 days notice to the police, while Section 9(5) stipulates that violating Section 9(1) is an offence.
In Kuala Lumpur, Sessions judge Azman Mustapha granted a discharge not amounting to acquittal against Badrul Hisham Shaharin, Edy Nor Reduan and Mohamed Bukhairy Sofian. The trio were charged under Section 9(5).
But in Ipoh, Sessions judge Rushan Lutfi Mohamed refused to do the same for Mohammad Anuar Zakaria, who was charged under the same law.
His lawyer N Surendran had pleaded to the court to take heed of the Court of Appeal ruling but to no avail. The judge said that he would provide the grounds of the ruling on May 16.
Tuesday April 29, 2014 MYT 7:15:19 AM
Court: 10-day notice to hold peaceful assembly is irrational
PUTRAJAYA: The 10-day notice requirement in the Peaceful Assembly Act is an irrational demand that renders the freedom to assemble urgently, illusory.
The Court of Appeal, in a set of landmark written judgments released yesterday, ruled that the prohibitive Section 9 of the Act (PAA) was also unreasonable and unconstitutional.
Justice Mah Weng Kwai ruled in his judgment that the right to a peaceful assembly should only be restricted reasonably and not prohibited. He said the requirement for the notice far outweighed the relative “inconvenience” caused by the occasion of the assembly.
“I am of the considered view that the restriction imposed by Section 9(1) and Section 9(5) of PAA is not reasonable as it amounts to an effective prohibition against urgent and spontaneous assemblies.”
The restriction, Justice Mah added, meant that it would be impossible for an organiser to call for a spontaneous assembly without being threatened with prosecution.
He said further that the 10-day notice requirement has rendered the freedom to hold spontaneous and urgent assemblies illusory.
“A participant in a peaceful assembly held without the 10-day notice commits no wrong whereas the organiser will be held criminally liable under Section 9(5) for not having given the 10-day notice, notwithstanding that the impugned assembly was held peacefully and without arms,” he said.
Justice Hamid Sultan Abu Backer, in his 42-page judgment, said that restrictions imposed cannot be arbitrary or excessive.
“In my considered view, if the assembly itself was peaceful then a penal sanction against the organisers will not qualify for any intended protection having direct nexus or proximity to Article 10(2) of the Federal Constitution (which guarantees the freedom of speech, assembly and association).”
Free Malaysia Today
IGP told to stop being arrogant
PKR vice president N Surendran urges the Inspector General of Police Khalid Abu Bakar to respect court ruling that renders the need to inform police on public gatherings as unconstitutional.
PETALING JAYA: Stop being arrogant and respect the court’s ruling, said PKR vice president N Surendran to Inspector General of Police (IGP) Khalid Abu Bakar today.
The PKR leader said this after English daily New Straits Times reported Khalid as saying that the public were still obligated to inform the police if they want to hold public assemblies and to comply with Section 9 (5) of the Peaceful Assembly Act (PAA).
“Section 9 (5) states it is an offence when one does not give a minimum 10 days notification to the police when holding a gathering. With the section being struck down by the court, there is no legal obligation for the public to notify the police.
“In short, it is no longer an offence if the gathering group fails to do so. Khalid should stop being arrogant and irresponsible on the matter,” said Surendran.
10-day notice to cops still in force
KUALA LUMPUR: Those intending to hold rallies and assemblies have to inform the police, despite the Court of Appeal striking out Section 9(5) of the Peaceful Assembly Act 2012.
This is because Section 9(1) of the act, which says district police chiefs need to be informed at least 10 days prior to the gathering, still exists.
Inspector-General of Police Tan Sri Khalid Abu Bakar said yesterday he could not comment on the decision of the Court of Appeal, but the law still existed and people must follow it.
“The requirements of the law have to be obeyed because it is stated that 10 days’ notice has to be submitted (before conducting any assembly).”
Bar Council president Christopher Leong also welcomed the decision, saying the Bar maintained that Article 10 of the Federal Constitution guaranteed the right to peaceful assembly.
Leong said Section 9(1), however, was still in force, adding that the objective of the 10-day notice was to provide police with time to consider, plan and implement measures to facilitate a peaceful assembly.
“If there are particular national security or public order issues arising from such an occasion, the police can impose such conditions or restrictions as are necessary or expedient to ensure a safe and peaceful assembly.”
Leong, however, warned that the ruling did not apply to non-peaceful assemblies.
“The judgment today does not recognise non-peaceful assembly as a right and action may be taken with regard to non-peaceful assemblies under the Penal Code.”
Nik Nazmi, who is Seri Setia assemblyman, had filed the case stating the PAA violates the freedom of assembly which is guaranteed in the Federal Constitution.
He was charged under Section 9(1) of the PAA on May 17 last year for his failing to notify police 10 days prior to the Blackout 505 rally at the Kelana Jaya Stadium on May 8.
The Shah Alam High Court had on Nov 1, dismissed his application to strike out his charge, stating that the 10-day notice period under PAA was not unconstitutional.
Friday April 25, 2014 MYT 1:09:00 PM
Nik Nazmi discharged, criminalising failure to give 10-day notice under PAA declared unconstitutional
PUTRAJAYA: The Court of Appeal here has declared Section 9(5) of the Peaceful Assembly Act (PAA) 2012 – which criminalises the failure to give 10-day notice before a gathering – to be unconstitutional.
Justice Mohammad Ariff Md Yusof in presiding over Parti Keadilan Rakyat’s (PKR) former strategic director Nik Nazmi Nik Ahmad’s (pic) appeal to strike out a charge under the PAA, ruled Section 9(5) null and void.
“That which is fundamentally lawful cannot be criminalised,” he said.
“Thus the charge and prosecution is invalid and is set aside. The applicant (Nik Nazmi) is also acquitted and discharged,” ordered Justice Ariff.
Though the panel unanimously allowed the appeal, Justices Mah Weng Kwai and Hamid Sultan Abu Backer also read out their own judgements.
Justice Mah noted that the restriction placed by Section 9(1) – which required a 10-day notice be given – was disproportionate.
Justice Hamid Sultan found that the 10-day notice requirement was not excessive of Article 10(2) of the Federal Constitution which enshrines freedom of assembly, saying it was the organiser’s social responsibility to inform the police to ensure the assembly participants’ safety
The written judgements are expected to be available on Monday, said Justice Ariff.
Nik Nazmi had appealed against the Shah Alam High Court’s decision, which had dismissed his application to strike out the charge under the PAA.
10:46AM Apr 25, 2014
10 days notice under PAA declared unconstitutional
In a landmark decision by the second highest court in the country, the Court of Appeal has today ruled Section 9 (1) of the Peaceful Assembly Act (PAA) requiring citizens to give 10 days notice to the authorities before a protest as unconstitutional.
The court hence declared the punishment for this section 9(5) of a RM10,000 fine as also unconstitutional.
In a unanimous decision to strike out the charge on Selangor assembly deputy speaker Nik Nazmi Nik Ahmad, the three-member panel also declared the PKR Youth chief aspirant, who was charged under the PAA, as discharged and acquitted.
The panel was led by Justice Mohd Ariff Mohd Yusof who said there is nothing in the Act that allows the authorities to declare a peaceful assembly as illegal.
The other judges were former Malaysian Bar president Mah Weng Kwai and Hamid Sultan Abu Backer.