Punishment for 10 days' notice 'unconstitutional'
Hafiz YatimPublished: Apr 25, 2014 2:46 AM | Updated: Apr 25, 2014 7:12 AM
The nation's second highest court in a landmark decision today ruled Section 9(5) of the Peaceful Assembly Act 2012 (PAA), which punishes those who do not give 10 days' notice before holding an assembly, to be unconstitutional.
The nation's second highest court in a landmark decision today ruled Section 9(5) of the Peaceful Assembly Act 2012 (PAA), which punishes those who do not give 10 days' notice before holding an assembly, to be unconstitutional.
With this, the punishment where the organiser stands to face a fine of RM10,000 is null and void, ruled the Court of Appeal.
In a unanimous decision to strike out the charge against Selangor assembly deputy speaker Nik Nazmi Nik Ahmad, the three-member panel also declared as acquitted the PKR Youth chief aspirant, who was charged under the PAA.
Nik Nazmi was charged in relation to the Black 505 rally after the last general election in 2013.
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 others on the bench were former Malaysian Bar president Mah Weng Kwai and Hamid Sultan Abu Backer.
Justice Mah, in his written judgment, declared both Section 9 (1) that requires the 10 days' notice and Section 9, ( which is the punishment for notice not given), as unconstitutional.
However, Justice Ariff and Justice Hamid, in their separate judgments, declared that only Section 9(5) was unconstitutional.
“The Section 9(1) requirement of 10 days' notice under the PAA is constitutional, but Section 9(5) that punishes peaceful assembly is unconstitutional,” said Justice Ariff.
“The right to peaceful assembly is guaranteed under Article 10(1) (b) of the Federal Constitution and hence, it cannot be criminalised,” Justice Hamid said in his decision.
“Section 9(5) makes a mockery of the right to freedom of assembly,” said Justice Mah, adding that freedom of assembly outweighs any inconvenience that might be caused by problems following a protest, such as traffic jams.
“There is no rational nexus of giving 10 days' notice with requirement of security, public order and others,.”
Justice Hamid also said that the court is duty-bound to protect fundamental rights and uphold judicial oath.
Other laws sufficient
Justice Mah ruled that there are sufficient laws to punish offenders who violate or destroy property during a public gathering.
“If there are any problems arising from the assembly, it can be dealt with by other laws,” he said.
“Section 9(5) inconsistently penalises organisers while participants are able to assemble peacefully. Freedoms can only be reasonably restricted but not prohibited,” the judge added.
Nik Nazmi (left), who is also Seri Setia assemblyperson, was represented by N Surendran, Latheefa Koya and Eric Paulsen.
Surendran said never before in the country's 57 years of independence have the courts ruled and upheld the freedom of assembly.
He said the effect of the judgment was that it is illegal for the courts or authorities to impose punishment for not giving the 10 days' notice required by the Act.
“What it means is that it is not a requirement to inform, but the organiser or the people involved can choose to do so.”
“If there is damage to property, there are existing laws in the country to punish the offenders. This is certainly a landmark decision as the courts accepted our submission that Section 9(5) is unconstitutional,” Surandran added.
The judgment will have a telling effect on others facing the similar charge under Section 9(1) nationwide, especially those who had been charged with organising sBlack 505 rallies in the other states.
With this, the punishment where the organiser stands to face a fine of RM10,000 is null and void, ruled the Court of Appeal.
In a unanimous decision to strike out the charge against Selangor assembly deputy speaker Nik Nazmi Nik Ahmad, the three-member panel also declared as acquitted the PKR Youth chief aspirant, who was charged under the PAA.
Nik Nazmi was charged in relation to the Black 505 rally after the last general election in 2013.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 others on the bench were former Malaysian Bar president Mah Weng Kwai and Hamid Sultan Abu Backer.
Justice Mah, in his written judgment, declared both Section 9 (1) that requires the 10 days' notice and Section 9, ( which is the punishment for notice not given), as unconstitutional.
However, Justice Ariff and Justice Hamid, in their separate judgments, declared that only Section 9(5) was unconstitutional.
“The Section 9(1) requirement of 10 days' notice under the PAA is constitutional, but Section 9(5) that punishes peaceful assembly is unconstitutional,” said Justice Ariff.
“The right to peaceful assembly is guaranteed under Article 10(1) (b) of the Federal Constitution and hence, it cannot be criminalised,” Justice Hamid said in his decision.
“Section 9(5) makes a mockery of the right to freedom of assembly,” said Justice Mah, adding that freedom of assembly outweighs any inconvenience that might be caused by problems following a protest, such as traffic jams.
“There is no rational nexus of giving 10 days' notice with requirement of security, public order and others,.”
Justice Hamid also said that the court is duty-bound to protect fundamental rights and uphold judicial oath.
Other laws sufficient
Justice Mah ruled that there are sufficient laws to punish offenders who violate or destroy property during a public gathering.
“If there are any problems arising from the assembly, it can be dealt with by other laws,” he said.
“Section 9(5) inconsistently penalises organisers while participants are able to assemble peacefully. Freedoms can only be reasonably restricted but not prohibited,” the judge added.
Nik Nazmi (left), who is also Seri Setia assemblyperson, was represented by N Surendran, Latheefa Koya and Eric Paulsen.Surendran said never before in the country's 57 years of independence have the courts ruled and upheld the freedom of assembly.
He said the effect of the judgment was that it is illegal for the courts or authorities to impose punishment for not giving the 10 days' notice required by the Act.
“What it means is that it is not a requirement to inform, but the organiser or the people involved can choose to do so.”
“If there is damage to property, there are existing laws in the country to punish the offenders. This is certainly a landmark decision as the courts accepted our submission that Section 9(5) is unconstitutional,” Surandran added.
The judgment will have a telling effect on others facing the similar charge under Section 9(1) nationwide, especially those who had been charged with organising sBlack 505 rallies in the other states.
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