Maria had organised the Bersih 4 rally on Aug 29 and 30 last year, before the Court of Appeal had ruled in Yuneswaran’s case that Section 9(5) was constitutional.
On Nov 3, 2015, Maria was charged under Section 9(5) of PAA for failing to give police a 10-day notice for Bersih 4.
She then sought to strike out the charge in High Court on the ground that Section 9(5) of PAA was still declared as invalid by another appellate court when Bersih 4 rally was organised.
7 September 2016
The Court of Appeal in Putrajaya today has struck out the charge brought against Bersih chairperson Maria Chin Abdullah under the Peaceful Assembly Act (PAA) for failing to notify the police on the holding of Bersih 4 rally last year.
The three-member bench unanimously overturned a High Court verdict that dismissed Maria’s bid to strike out the charge.
Justice Tengku Maimum Tuan Mat who led the bench ruled that the appellate court’s Oct 2015 decision on Johor PKR executive secretary R Yuneswaran cannot be retrospectively applied as enshrined in Article 7(1) of the Federal Constitution.
Other presiding judges were Justices Ahmadi Asnawi and Kamardin Hashim.
In Yuneswaran’s case, the Court of Appeal, the nation’s second highest court, then ruled that the provision that criminalises the failure to give the notice to be “constitutional, valid, and enforceable”.
But five months earlier, the same court had ruled differently in a landmark judgment involving PKR lawmaker Nik Nazmi Nik Ahmad.
It had declared Section 9(5) which provides the penalty for Section 9(1) of the Peaceful Assembly Act that requires rally organisers to notify police, null, void and unconstitutional.
The parties – senior lawyers M Puravelan and Ambiga Sreenevasan representing Maria, and DPPs Suhaimi Ibrahim and Hamdan Hamzah for the government – argued which decision of the Court of Appeal should be binding on Maria’s case.
In her ruling, Justice Maimum said: “When the two decisions (Nik Nazmi and Yuneswaran) compete with each other, the later decision prevails.”
While the general rule states it should take effect retrospectively, it must equally be in line with Article 7(1) of the Federal Constitution, she added.
“The High Court failed to consider the effect of Article 7(1). Therefore, we find merit in the appeal and the appeal is allowed,” Justice Maimum ruled.
Article 7(1) stipulates the protection against retrospective criminal laws, meaning a person cannot be punished for something which at the time when it was done, was not an offence.
11 July 2016
High Court Kuching allows appln by MP’s to refer question of constitutionality of S4(1)(c) of PAA to Federal Court.
10 July 2016
MPs say illegal assembly charge unconstitutional
Chong Chieng Jen and Julian Tan of DAP Sarawak, who were charged for attending a Bersih 4 rally last year, have applied for their cases to be referred to the Federal Court.
KUCHING: DAP lawmakers Chong Chieng Jen and Julian Tan, who were charged last year under the Peaceful Assembly Act (PAA) 2012 for taking part in the Bersih 4 protest here, have applied for their cases to be referred to the Federal Court on grounds that their arrests were unconstitutional.
Serving as leading counsel, Gobind Singh Deo told reporters here today that the application to refer the matter, in regard to the constitutionality of the arrests, would be heard in the Kuching High Court on Monday.
Also present at today’s press conference were Chong and Tan themselves as well as Chong’s father, Chong Siew Chiang, who is also serving as legal counsel along with Tan Kee Heng.
Last December Chong and Tan, who are Bandar Kuching and Stampin MPs respectively, were charged in the Sessions Court under section 4(2)(c) of the PAA.
The case has yet to be heard. DAP said it has filed an application to the High Court to refer certain questions of law to the Federal Court for determination.
“We believe Section 4(2)(c) of the Peaceful Assembly Act is against Article 10 of the Federal Constitution, and therefore is illegal, and (should) be made null and void. We hope that this provision would be declared illegal,” Gobind said.
“If the learned judge agrees with us, then of course he has the power to refer the matter to the higher court for determination. The judge will decide whether a constitutional conflict arises, and would then refer to the Federal Court. His duty tomorrow is to decide whether there is an issue,” he added.
Judge Stephen Chung is expected to be presiding over the case.
Chong and Tan were charged for contravening Section 4(2)(c) of the Act for participating in the Bersih 4 rally, which started at the Kuching Hilton and ended at the Song Kheng Hai rugby grounds on August 29.