Friday, April 25, 2014

Court of Appeal says '10 day pre-peaceful assembly notice' is unconstitutional ...a good courageous decision

Malaysia calls itself a democracy, but alas Malaysians' freedom of expression and peaceful assembly is just restricted by law. That new Peaceful Assembly Act (PAA) did in fact make it even more difficult for people to assemble peacefully and express themselves...Now, we have to give 10-days notice to the police, get the permission of the person who owns the property(even the Local Council and the government??) where people are going to be peacefully assembling...
The new law does not take into account that sometimes there are just no organizers.... people are just moved to come out and assemble expressing themselves.... 'Hello, let's gather here at this place and tell the world, Malaysians, Malaysian Government, MAS or some company, etc...) how we feel. 

Now, if our media is 'free' or is willing to play its role as also a communicator of different views, then maybe people may less likely come out to exercise the right of peaceful assembly... There are so many media statements, some even Joint Statements by a lot of groups...even 100 plus, ...but sadly the Malaysian media just do not carry...

The use of peaceful assembly is not just a means of expressing opinions and views, but more importantly also showing 'how many' or 'so many' are of this viewpoint.... (Of course, the numbers who turned up may have to be multiplied by 10...or 100...or 1,000 or even a million...because many although of similar position may be not come out to join a particular peaceful assembly for various reasons...fear included...). The other important object of a peaceful assembly is the creating of awareness of the issue and lobbying for greater support from members of the public - that is why these 'peaceful assemblies' must be in a public place - not hidden away in some hall, stadium or isolated 'padang'... 
Good news, is that the Court of Appeal has made some interesting and relevant points.... and hopefully the Malaysian government will listen and restore people their full and 'unrestricted' right to peaceful assembly. Police should only be there to help, protect people exercising their rights,...and maybe ensure traffic flow, etc... to ensure that nobody fights, etc... Police should not be RESTRICTING rights and freedom of peaceful assembly...

Court acquits PKR rep, rules 10-day notice in public assembly act ‘unconstitutional’
April 25, 2014
Latest Update: April 25, 2014 11:28 am
Nik Nazmi outside the Court of Appeal, today. – The Malaysian Insider pic by Najjua Zulkefli, April 25, 2014. 
Nik Nazmi outside the Court of Appeal, today. – The Malaysian Insider pic by Najjua Zulkefli, April 25, 2014.

The Court of Appeal today struck out the charge against Selangor's deputy speaker Nik Nazmi Nik Ahmad who was charged under the Peaceful Assembly Act for failing to give police a 10-day notice for a rally last year.

A three-man bench led by judge Datuk Mohamad Ariff bin Md Yusof also ruled in a unanimous decision today that Section 9 (1) of the Peaceful Assembly Act (PAA) requiring citizens to give 10 days' notice to the authorities before a protest as unconstitutional.

The court said that while the police can impose restriction on peaceful assembly, they cannot penalise organisers and participants for non-compliance.

Ariff said section 9 (5) of the Act presents “some conceptual difficulty” as it considers peaceful assemblies lawful regardless of compliance with the notice.

“That which is fundamentally lawful cannot be criminalised,” he said when reading out a section of his judgment today.

Nik Nazmi, the Seri Setia state assemblyman, was charged under the  Peaceful Assembly Act 2012 for not giving a 10-day notice to hold the Blackout Rally at the Kelana Jaya stadium last year, in the aftermath of the general election. – April 25, 2014. - Malaysian Insider

Punishment for 10 days' PAA notice '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 citizens who do not give 10 days' notice before they hold an assembly, to be unconstitutional.
With this, the punishment where the organiser stands to face a fine of RM10,000 is null and void, the Court of Appeal said.

In a unanimous decision to strike out the charge against Selangor assembly deputy speaker Nik Nazmi Nik Ahmad, the three-member panel also declared the PKR Youth chief aspirant, who was charged under the PAA, as acquitted and discharged.

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 other judges 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 one to give the 10 days' notice andSection 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) to be 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 over the right to freedom of assembly,” said Justice Mah, adding that freedom of assembly outweighs any inconvenience that might be caused by the problems following a protest, such as traffic jams.

“There are 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 in 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 under the Peaceful Assembly 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 similar charge under Section 9(1) nationwide, especially those who had been charged with organising similar Black 505 rallies in the other states.- Malaysiakini,

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