BY V. ANBALAGAN AND EILEEN NG
The Malaysian Insider
April 26, 2014
The public can now assemble without fear following a Court of Appeal ruling yesterday that a breach of a provision in the Peaceful Assembly Act (PAA) does not amount to an offence, human rights lawyers and lawmakers said.
They said the unanimous decision of the three-man bench led by judge Datuk Mohamad Ariff Md Yusof upheld a fundamental right under the Federal Constitution, which is the right to assemble peacefully.
This means the upcoming May Day anti-GST (goods and services tax) rally will no longer be deemed “illegal” and the public need not worry about the any action being taken against them unless they destroyed properties or committed criminal offences.
The lawyers also saluted the judges who were prepared to uphold the supreme law of the land instead of allowing a basic right that should be enjoyed by citizens to be a mere illusion.
The judgment also said those who went against public order could only be charged under the Penal Code, the Road Transport Act or local government by-laws.
In declaring the punishment provided under the PAA as unconstitutional because it violated the right to assemble peacefully, the appellate court also struck out the charge against Selangor legislative assembly deputy speaker Nik Nazmi Nik Ahmad for failing to give 10 days notice under the Act before organising the May 5 Blackout Rally last year.
Nik Nazmi, who is Seri Setia assemblyman, was facing the possibility of being disqualified from public office, as the offence under section 9 (5) of the PAA 2012 carried a fine of up to RM10,000.
The rally was held to protest the alleged widespread electoral fraud during the 2013 general election which returned the Barisan Nasional coalition to power.
Lawyers for Liberty executive director Eric Paulsen said with the judgment, other provisions in the PAA to punish offenders would appear to be unconstitutional.
“Those charged with offences under other provisions are now very likely to be acquitted as the underlying principle of the judgment is that the state cannot punish anyone under the PAA,” he said.
PKR vice-president N. Surendran, in hailing the judgment as historic, said this was the first time in the nation’s 57 years of independence that the freedom to assemble was given full effect in Malaysia.
“This is a ray of light amidst the murk and gloom of authoritarianism. The judges had defended the right of the people to gather peacefully,” said the Padang Serai MP and lawyer.
Klang MP Charles Santiago said the judgment also meant that it was the responsibility of organisers to inform the police of their intention to hold gatherings instead of seeking permission.
“It redefines what people should do in relation to informing the authorities,” he said.
Santiago said the ruling which had far-reaching implications struck at the heart of the PAA, pointing out that it would open up more space for civil society to assemble.
Lawyer and PAS leader Mohamed Hanipa Maidin said the ruling was sound as punishment for organising or attending an assembly was against a person’s fundamental right to assemble.
“You can provide for laws to regulate assemblies but if you make it an offence, it is no longer freedom to assemble,” he said.
The Sepang MP hoped Putrajaya would abide by the court decision and not rush to Parliament and make amendments to suit the BN government.
“The PAA was enacted to recognise peaceful assemblies. This means the police have a role to play by assisting,” he added.
Former Bar Council chairman Lim Chee Wee, who was present in court when judgment was delivered, said it was one of the proudest moments for the judiciary.
“I salute the judges for living up to their oath of office in upholding and protecting the constitution as we can now enjoy the freedom of assembly without arbitrary restriction,” he said.
Lim said he now looked forward to the Federal Court to affirm this outstanding decision.
Nik Nazmi, who dedicated his hard-fought victory to the late Karpal Singh, said one must never give up the fight for rights that are already entrenched in the constitution.
“Like Karpal, I came to the courts to test the limit of the constitution and I’m glad all three judges gave well-reasoned grounds,” he added. – April 26, 2014.