Can cops catch you for attending May Day protest? NO WAY, say legal experts

As the May Day protest approaches, police have ratcheted up their rhetoric, urging the public not to participate in the rally.

But can police really do anything to participants for merely attending the protest?

"No," said legal experts, more so after the Court of Appeal on Friday declared Section 9(5) of the Peaceful Assembly Act (PAA) 2012 to be unconstitutional.

"The police do not seem to realise that after the introduction of the PAA, there is nothing in the law to declare an assembly illegal," said N Surendran, who was part of the team that won the constitutional challenge at the Court of Appeal.

This fact was reiterated in the Court of Appeal ruling by a three-man panel led by Justice Mohd Ariff Mohd Yusof.

"Only organisers can be punished for failing to give notice and even that was declared unconstitutional last Friday," emphasised Surendran, who is also Padang Serai MP.

The Friday ruling was part of a unanimous decision to strike out the charge against Selangor deputy speaker Nik Nazmi Nik Ahmad under Section 9(5) of the PAA for his involvement in the Black 505 rally shortly after the 13th General Election.

'What can cops do?'

Prior to being declared unconstitutional, Section 9(5) of the PAA provides for a fine of up to RM10,000 if organisers failed to give a 10-day notice for an assembly.

Despite the ruling , Inspector-General of Police Khalid Abu Bakar (left) has insisted that the protest organisers must still give a 10-day notice as laid out in Section 9(1) of the PAA.

However, Surendran pointed out that in the absence of Section 9(5), the notice requirement is now only "advisory" in nature.

"If I don't give a 10-day notice, what are you going to do? There is no criminal punishment," he said.

The only punishment left, said Surendran, is Section 15(3) which provides for a fine of up to RM10,000 for failing to comply with rally conditions imposed by an OCPD as required under Section 15(1) of the PAA.

The conditions that can be imposed can relate to the date, time, duration and venue of an assembly.

However, Surendran is of the opinion that Section 15(3) is also unconstitutional based on the reasoning of Friday's ruling.

"The reasoning is very important, the court accepted in toto our argument that you cannot penalise the right to freedom of assembly by placing restrictions with criminal sanctions.

"The only reason Section 15(3) was not declared unconstitutional was because the case we took up was about Section 9(5)," he said.

Constitutionality of other penalities in question

Surendran said if police were to charge any of the organisers under Section 15(3) of the PAA for the coming protest on May 1, he is "100 percent" certain it will also be declared unconstitutional when it goes to court.

"The authorities should take cognisance of this fact and not threaten the people from attending rallies," he said.

Meanwhile lawyer Syahredzan Johan (left) concurred that police can no longer take criminal action against protest organisers for not providing a 10-day notice.

However, he said not filing notice can still be seen as an act of negligence if a civil suit is brought against organisers for rallies that turn unruly.

As such, he said even in the absence of punishment, organisers should still provide notice as part of their social responsibility.

"This is also for the police to help facilitate the rallies," said Syahredzan who was also part of Nik Nazmi's legal team which mounted the constitutional challenge.

Syahredzan said the availability of civil suits and other laws under the Penal Code to ensure peaceful rallies meant that there is no need for criminal punishment in the PAA.

-Malaysiakini