The prosecution in the Peaceful Assembly Act charge against Opposition Leader Anwar Ibrahim told the sessions court in Kuala Lumpur today that his challenge to the magistrate's order barring Bersih 3.0 supporters from Dataran Merdeka on April 28 was not sustainable.
DPP Mohd Hanafiah Zakaria said Anwar should have challenged magistrate Zaki Asyraf Zubir's order dated April 26 within seven days of it being issued, and only in a magistrate's court.
The application can only be heard by Zaki or by another magistrate.
"The sessions court cannot review a magistrate's order as it does not have the inherent jurisdiction to hear an appeal or judicial review. The applicant also did not cite the provision under which this court can hear and decide on this application.
"The proper forum for this should be the High Court. Following this, the application should be struck out," Hanafiah argued.
With Hanafiah was the head of the prosecution division at the Attorney-General's Chambers, Abdul Wahab Mohamad.
Hanafiah also said it was not proper to make a criminal application because the matter concerned a summons charge.
The prosecution was submitting on its preliminary objection to one of Anwar's two applications on the Bersih charge.
Anwar has also filed another application, in the High Court, questioning the legality of the charge on grounds that Section 4(1)(c) of the PA Act is unconstitutional as it violates freedom of assembly and association. This application will be heard by the High Court on Nov 23.
DPP Mohd Hanafiah Zakaria said Anwar should have challenged magistrate Zaki Asyraf Zubir's order dated April 26 within seven days of it being issued, and only in a magistrate's court.
The application can only be heard by Zaki or by another magistrate.
"The sessions court cannot review a magistrate's order as it does not have the inherent jurisdiction to hear an appeal or judicial review. The applicant also did not cite the provision under which this court can hear and decide on this application.
"The proper forum for this should be the High Court. Following this, the application should be struck out," Hanafiah argued.
With Hanafiah was the head of the prosecution division at the Attorney-General's Chambers, Abdul Wahab Mohamad.
Hanafiah also said it was not proper to make a criminal application because the matter concerned a summons charge.
The prosecution was submitting on its preliminary objection to one of Anwar's two applications on the Bersih charge.
Anwar has also filed another application, in the High Court, questioning the legality of the charge on grounds that Section 4(1)(c) of the PA Act is unconstitutional as it violates freedom of assembly and association. This application will be heard by the High Court on Nov 23.
The charges
Anwar, PKR deputy president Azmin Ali and former PKR supreme council member Badrul Hisham Shahrin are charged with violating Section 4(2)(c) of the PA Act by taking part in the Bersih 3.0 rally between 2.30pm and 3pm on April 28, thereby violating the court order issued by magistrate Zaki.
If found guilty on this charge, they are liable to a maximum fine of RM10,000 each.
They also face a second charge, under Section 188 of the Penal Code, of breaching the magistrate's order by conspiring with Rasah PKR division deputy head R Tangam, lawyer G Rajesh Kumar and van driver Farhan Ibrahim @ Alias by inciting them to breach the barricades surrounding Dataran Merdeka, which ‘could have caused a riot or clashes'.
If convicted under this section, Anwar, Azmin and Badrul Hisham will each face a maximum jail term of one month or a fine of RM2,000 or both.
The third charge against the three is on abetting in rioting under Section 147 of the Penal Code, by inciting the others to break the barricades at Dataran Merdeka.
The punishment upon conviction under this section is a two-year jail term or a fine or both.
Appearing for Anwar, Ramkarpal Singh sought more time to reply to Hanafiah's submission and sessions judge Mahmud Abdullah fixed Nov 21 for hearing to continue.
Anwar, who is Permatang Pauh MP, was initially present with his wife and PKR president Dr Wan Azizah Wan Ismail, but he later sought to excuse himself to attend to a parliamentary debate.
If found guilty on this charge, they are liable to a maximum fine of RM10,000 each.
They also face a second charge, under Section 188 of the Penal Code, of breaching the magistrate's order by conspiring with Rasah PKR division deputy head R Tangam, lawyer G Rajesh Kumar and van driver Farhan Ibrahim @ Alias by inciting them to breach the barricades surrounding Dataran Merdeka, which ‘could have caused a riot or clashes'.
If convicted under this section, Anwar, Azmin and Badrul Hisham will each face a maximum jail term of one month or a fine of RM2,000 or both.
The third charge against the three is on abetting in rioting under Section 147 of the Penal Code, by inciting the others to break the barricades at Dataran Merdeka.
The punishment upon conviction under this section is a two-year jail term or a fine or both.
Appearing for Anwar, Ramkarpal Singh sought more time to reply to Hanafiah's submission and sessions judge Mahmud Abdullah fixed Nov 21 for hearing to continue.
Anwar, who is Permatang Pauh MP, was initially present with his wife and PKR president Dr Wan Azizah Wan Ismail, but he later sought to excuse himself to attend to a parliamentary debate.
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