Peaceful assembly law ‘inconsistent’ with Constitution, court told

Anwar (centre) and other opposition leaders make their way toward the Bersih rally in Kuala Lumpur, April 28, 2012. — File pic

KUALA LUMPUR, Nov 23 ― A law that allows rallies as long as they are static violates the country’s supreme law that guarantees the right to assemble freely and must be ruled unconstitutional, the High Court was told today.

Lawyer Karpal Singh made the argument today in defence of Opposition Leader Datuk Seri Anwar Ibrahim who is charged with taking part in an illegal rally ― a case that has cast the spotlight on the Peaceful Assembly Act (PAA) that took effect just days before the April 28 Bersih electoral rally here and which has been heavily criticised as a tool to suppress dissent.

“It can be seen at once that the right to assembly by way of a street protest is completely prohibited, with regards to Section 4(1)(c) and the definition of ‘assembly’ and ‘street protest’ in Section 3,” the lawyer said, referring to the provisions of the PAA that were used against Anwar.

“It is not restriction that is created but a prohibition and, therefore, Section 4(1)(c) is ultra vires [beyond the powers of] Article 10(2)(b),” he added, the latter provision referring to the fundamental liberties expressly dealing with freedom of assembly that is stated in the Federal Constitution.

Karpal argued that the PAA had attempted to restrict the definition of an assembly in order to make moving assemblies illegal.

“The right to organise an assembly or participate in an assembly peaceably and without arms under this Act shall not extend to a street protest,” he said, highlighting that such a provision was inconsistent with the Federal Constitution and therefore unlawful.

Section 3 of the PAA defines a rally as “an intentional and temporary assembly of a number of persons in a public place, whether or not the assembly is at a particular place or moving”.

A street protest ― which is illegal according to the PAA ― is defined as an open air assembly that begins with a meeting at a specified place and consists of walking in a mass march or rally for the purpose of objecting to or advancing a particular cause or causes, the lawyer pointed out.

“It is submitted, under the circumstances, the answer to the question posed should be in the positive,” he said, referring to the constitutional question the court must answer.

On September 3, Anwar had filed an application to refer a point of law to the High Court in a bid to strike out the illegal assembly charges against him.

Anwar wanted the court to decide whether Sections 4(1)(c) and 4(2)(c) of the PAA were in accordance with the Federal Constitution.

High Court judge Kamardin Hashim adjourned the hearing to next Friday at 3pm to hear the prosecution’s arguments on the point of law.

The 64-year-old Permatang Pauh MP was charged last May 22 with taking part in an illegal rally and breaching Section 4(2)(c) of the PAA, less than a month after the new law aimed at allowing public gatherings “in accordance with international norms” was enforced.

Also claiming trial were PKR deputy president Azmin Ali and Rembau PKR chief Badrul Hisham Shaharin, who were slapped with similar charges.

The three were also hit on May 28 with two additional charges — the first with abetting to incite three PKR members, named as Tangam Raju, Rajesh Kumar Gejinder and Farhan Ibrahim @ Alias, to open the police barricade enclosing Dataran Merdeka during the April 28 Bersih 3.0 rally for electoral reforms.

The other charge is under Section 109 of the Penal Code with abetting Tangam Raju, Rajesh Kumar and Farhan to oppose a court order barring the use of Dataran Merdeka for the April 28 sit-in rally for electoral reform.

Prime Minister Datuk Seri Najib Razak had said when tabling the Peaceful Assembly Act in Parliament last year that it would be “revolutionary” and allow Malaysians to participate in public gatherings “in accordance with international norms.”