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Wednesday, April 30, 2014

Court of Appeal: Section 9 (5) of PAA ‘unreasonable’

Section 9 (5) of the Peaceful Assembly Act (PAA) 2012 criminalises the organiser’s failure to give a 10-day notice before a gathering is therefore unreasonable, the Court of Appeal says in its written judgment which was released in Putrajaya yesterday.
That section amounted to an effective prohibition against urgent and spontaneous assemblies, Court of Appeal judge Mah Weng Kwai said in his 29-page judgment.
Justice Mah said the right to organise and assemble peacefully could only be restricted reasonably and not prohibited as defined in Article 10 (2) (b) of the Federal Constitution.
He said the section, as it currently stood, essentially prohibited spontaneous and urgent assemblies, and that the 10-day notice requirement has rendered the freedom to hold spontaneous and urgent assemblies illusory.
“For the PAA to require an organiser to give the 10-day notice would, to my mind, not be a reasonable nexus between the right to assemble peacefully, whether spontaneously or within a short period of time, and the requirement for a 10-day notice for purposes of security and good public order.
“The requirement for the 10-day notice far outweighs the relative inconvenience caused by the occasion of the assembly and should thus be deemed disproportionate,” he said.
Existing laws can deal with violations
Justice Mah said any traffic violations or dislocation to business activities that breached public safety and security could be adequately dealt with by the police and other law enforcement agencies under existing laws such as the Road Transport Act 1987 and the Penal Code.
Last Friday, a three-member Court of Appeal panel comprising Justice Mohd Ariff Mohd Yusof, Justice Hamid Sultan Abu Backer and Justice Mah in a landmark decision ruled that Section 9 (5) of the PAA to be unconstitutional.
That panel allowed an appeal brought by Seri Setia assemblyperson Nik Nazmi Nik Ahmad to (right) strike out a charge against him for organising the Black 505 rally at Stadium Kelana Jaya on May 8 last year.
All three judges have written separate judgments, which were made available to the media yesterday.
Justice Mah said one must be mindful of the purpose of an assembly, such as the one organised by Nik Nazmi, which was a platform for members of the public to gather and to express their right to free speech, a fundamental right provided for under the constitution.
A mockery of the right to freedom
“By criminalising and punishing an organiser under Section 9 (1) and 9 (5) of the PAA, it draws into sharp focus the inconsistency and inequality that it creates.
“The section makes a mockery of the right of the appellant (Nik Nazmi) to freedom of a peaceful assembly by criminalising the default in failing to give the necessary notice to the district police chief,” said Justice Mah.
Meanwhile,  Justice Ariff in his 26-page judgment said Section 9 (5) of the PAA was unconstitutional as any non-compliance on the part of the organiser would not attract a criminal penalty.
Justice Ariff said the PAA provisions do not per se render unlawful an assembly held without a prior 10 days’ notice or held within a shorter notice period.
“Thus, that which is fundamentally lawful cannot in the same breath result in an unlawful act on the part of the organiser by reason of an administrative failure or omission.
In his 42-page judgment, Justice Hamid said Malaysia, being a signatory to international conventions on the right to freedom of peaceful assembly, provisions to penalise or discourage peaceful assembly had to be readily struck down.

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