KUALA LUMPUR, July 1: The Federal Court’s decision this morning that Section 9(5) of the Peaceful Assembly Act (PAA) is unconstitutional has been welcomed by Member of Parliament for Bangi, Syahredzan Johan.
Free Malaysia Today reported the court’s ruling that it is unconstitutional to criminalise the failure to notify the police five days in advance of holding a peaceful assembly.
Chief Justice Tengku Maimun Tuan Mat, delivering the unanimous decision of a five-member panel, said Section 9(5) of the Peaceful Assembly Act 2012 imposes a punishment that exceeds the limits permitted under Article 10(1)(b) of the Federal Constitution, which guarantees the freedom of speech, assembly, and association.
She said the section was “a disproportionate intervention” and amounted to a prohibition rather than a restriction of that right.
In his statement, Syahredzan said the decision has provided clarity after two conflicting Court of Appeal decisions on Section 9(5) of the PAA in the Nik Nazmi Nik Ahmad versus Public Prosecutor (PP) and PP versus R Yuneswaran in 2014 and 2015.
“I was one of the lawyers on record for Nik Nazmi’s case in 2014 when we argued and succeeded at the Court of Appeal. The Court of Appeal then held that Section 9(5) PAA was unconstitutional as it was ultra vires Art 10 of the Federal Constitution.
“However, a few months later a different Court of Appeal panel decided differently and found that 9(5) was constitutional in the PP v R Yuneswaran.”
Hence, there had been two conflicting Court of Appeal decisions on the constitutionality of Section 9(5) PAA and until today’s decision, there was no conclusive determination by the Federal Court on this issue.
Earlier this year, the Government through the announcement by Prime Minister Datuk Seri Anwar Ibrahim had stated that the Peaceful Assembly Act will be amended, and at the time, he stated that the amendment would be tabled at the next sitting (this month), Syahredzan said.
With the decision by the Federal Court, the Government should also take cue from the grounds of judgment and explore amendments to make sure that the law is in line with constitutional principles when it comes to providing notice to the authorities.
Additionally, all pending investigations into non-notification of assemblies under Section 9(5) should be dropped immediately, and the Public Prosecutor should also withdraw all pending charges in Court to any persons under the particular section.
A law which is unconstitutional should not be enforced by any branch or arm of the State, Syahredzan added.
–WE