by Joseph Sipalan
The Malay Mail Online
March 25, 2015

KUALA LUMPUR, March 25 – The police are acting beyond their legal means by relying on a law provision that has been declared unconstitutional to arrest people for participating in public shows of dissent, lawyers said.

They argued that the authorities cannot continue to detain individuals using disputed laws when the courts have clearly ruled against the admissibility of such legislation, even if an appeal is still pending.

“This is a worrying development. The authorities seem to take the position that just because an appeal is filed, it means there is no finality to the interpretation of the impugned provision,” said civil liberties lawyer Syahredzan Johan.

“This is a deliberate misapprehension of the law,” he added when contacted by Malay Mail Online.

Over the past few weeks, the police have detained a string of opposition politicians, lawyers and social activists in connection with public criticism of the conviction and five-year jail sentence of opposition leader Datuk Seri Anwar Ibrahim.

Aside from the Sedition Act 1948, authorities have also invoked Section 9(5) of the Peaceful Assembly Act (PAA) 2012, among other legal provisions to detain alleged offenders.

Among others, the police have begun investigations under the Act against politicians Saifullah Zulkifli and Rafizi Ramli, as well as activist S. Jayathas, over their roles in the March 7 #KitaLawan rally in support of Anwar.

But lawyers pointed out that Section 9(5) of the assembly law had been ruled unconstitutional last year by the Court of Appeal, a decision that has yet to be reversed by the Federal Court.

Last April, the Court of Appeal ruled it unconstitutional to criminalise spontaneous public assemblies in breach of a 10-day notice required under Section 9(1) of the PAA, and also ordered that Section 9(5) — which imposes a maximum RM10,000 fine for non-compliance — be struck out for running counter to the Federal Constitution.

The Attorney-General’s Chambers (AGC) is currently pursuing an appeal against the decision at the Federal Court.

Syahredzan stressed that until a court ruling is overturned by a higher court, that particular decision will remain as the prevailing interpretation of the law.

“So long as the court has declared a provision as unconstitutional, and so long as that decision is not overturned, then it is a good law.

“It is binding on you, me, the state and it is certainly binding on the police. The police cannot ignore a court decision; it would be contemptuous on their part to do so,” he said.

Human rights lawyer Andrew Khoo said it becomes the responsibility of the AGC to advise the police on whether the enforcement agency can use laws that have had their constitutionality challenged.

The courts, at the same time, must also uphold the correct interpretation of the law such as by refusing remand if an arrest was made based on a provision of law that has been declared unconstitutional, he added.

Khoo said the seizure of Christian hymn books in Johor last December was a clear example of the police relying on a law “that had been declared unconstitutional in the context in which it had been used”.

“And when the police overreach themselves on the law and then don’t apologise for mistakes, it tends to undermine public confidence in the police,” he said.

Civil liberties lawyer New Sin Yew said the ongoing crackdown is symptomatic of “abuse of power or gross negligence” by the police in using “void laws which have been declared unconstitutional” to carry out arrests or detention.

“The police should cease and desist period. The law and court decisions are crystal clear. Comments and criticisms are not an offence under the law,” he said.