PKR leaders want question on street protests referred to apex court

Three PKR leaders want the High Court in Kuala Lumpur to refer a question on the constitutionality of street protests to the Federal Court. 

This came in the case of Teja assemblyperson Chang Lih Kang, Semambu assemblyperson Lee Chean Chung and Rozan Azen Mat Rasip, the former political secretary to PKR vice-president Tian Chua, who are charged under the Peaceful Assembly Act (PAA) for taking part in the 2015 Kita Lawan rally.

Today, their lawyer Eric Paulsen cited last year's Federal Court ruling when he told Justice Azman Abdullah that such a constitutional question should be referred, since the magistrate's court had ruled there is a prima facie case. 

It was reported that then Chief Justice Arifin Zakaria, who chaired a five-member bench, held that the apex court does not want to "answer an academic question" until a decision has been made on whether those charged did indeed take part in the street protest.

Paulsen said since his clients had been ordered to enter their defence three months ago, this court should allow for the question to be referred to the apex court. 

Although Justice Azman agreed with the argument, DPPs Jaizah Jaafar Sidek and Nadia Zulkefli said they have received instructions to object to the referral.

Jaizah added that they are also objecting to a stay of the proceedings, since this is a 2015 case.

The three PKR leaders are making the application under Section 84 and Section 30 of the Courts of Judicature Act 1964, to refer the question to the Federal Court.

They want to pose the question on whether Sections 4(1)(c), 4(2)(c), and 4(3) of PAA are inconsistent with Articles 8, 9, and 10 of the Federal Constitution.

Section 4(1)(c) is on the right to assemble without arms that do not extend to street protest, while 4(2)(c) makes it an offence for a person to organise or participate in a street protest.

Section 4(3) concerns the punishment of committing an offence under PAA, for which a maximum fine of RM10,000 can be imposed.

Article 8 pertains to equality rights, Article 9 is on freedom of movement and Article 10 concerns freedom of speech, assembly, and association.

Chang (photo), Lee and Rozan were ordered to enter their defence by magistrate Mahyudin Mohamad Som on Aug 9 for participating in the Kita Lawan street protest in Kuala Lumpur in March 2015.

Justice Azman said he would read the submissions filed by both parties on the application and make a decision on Dec 12.

The judge also ordered for a temporary freeze on the proceedings in the magistrate's court until he delivers the decision.

If allowed, Paulsen said, this will be the first time the apex court would decide on the constitutionality of a street protest.

Previously, the courts had made decisions on the requirement of 10 days notice before a demonstration is held.- Mkini