Court decision frees Nik Nazmi to contest GE14

PKR Youth chief and Seri Setia assemblyperson Nik Nazmi Nik Ahmad will be able to contest the coming general election, with the Court of Appeal today dismissing a bid by the government to disqualify him.

A three-member panel of the court, led by Justice Mohtarudin Baki, this morning dismissed the prosecution's appeal to increase a fine of RM1,500 imposed on him by the High Court in Shah Alam on a charge under the Peaceful Assembly Act 2012.

"We find that the prosecution's appeal has no merit and is not manifestly inadequate," the panel ruled.

The other judges were Justice Yaacob Mohd Sam and Justice Abdul Karim Abdul Jalil.

Justice Mohtarudin in the unanimous decision also reminded Nik Nazmi that despite being an elected representative, he is not above the law.

Met outside the courtroom, Nik Nazmi said he hoped there would be no further appeal by the prosecution, to the Federal Court. His lawyer Syahredzan Johan (photo) also hoped there was no appeal but is prepared to face such eventuality.

Nik Nazmi had pleaded guilty in December 2016 to not giving the required 10-day notice to the authorities before organising the mammoth Black 505 rally in Kelana Jaya, a few days after the 13th general election in 2013.

A person charged under Section 9 of PAA is liable to face a maximum fine of RM10,000.

Deputy public prosecutor K Mangai had appealed for his fine to be increased to RM5,000 which would result in him not being able to contest in the next general election.

She said that the fine was inadequate as Nik Nazmi had only pleaded guilty after he was charged for the third time and when the trial had already commenced.

“The fine of RM1,500 would not serve as a deterrent as being an elected representative, he should set an example for others. Here he gave the notice to have the event on the same day. A fine of RM5,000 is sufficient,” she said.

Mangai cited the case of PKR Johor organising secretary R Yuneswaran (left in photo) where he failed to give notice and the court imposed a RM6,000 fine.

Election Commission rules disqualify those who have been fined RM2,000 and above or jailed for a year or more from being elected representatives.

Nik Nazmi retained the state assembly seat of Seri Setia in the last election with a majority of 4,663 votes.

Challenges and civil suit
Syahredzan told the panel that the fine imposed should be maintained or not higher than RM2,000 as any larger figure would result in his client losing his seat.

“Here there are public interests also as a fine in excess of RM2,000 would result in his constituency to be deprived of an elected representative. The High Court judge (Justice Ghazali Cha) also noted this in his judgment,” he said.

Syahredzan said that in this case while his client had gone on to challenge the constitutionality of the charge, which was eventually set-aside by Yuneswaran's case, the trial had only begun for a few hours on the first day and a representation was submitted.

“Hence, fining my client in excess of RM2,000 would be wrong as in the case of Rafizi Ramli and three others (they) had also pleaded guilty and (were) fined RM1,950,” he said.

It was previously reported in 2014 that Nik Nazmi had managed to set-aside the charge at the Court of Appeal when it declared Section 9 (5) of the PAA (the requirement to give 10 days notice) as unconstitutional and the punishment imposed on it also as unconstitutional.

Despite having the charge set-aside, Nik Nazmi was charged for a second and then a third time for the same offence.

However, another bench at the Court of Appeal led by its then president Justice Md Raus Sharif (now Chief justice) ruled in the Yuneswaran case that the requirement to give ten days notice under PAA is constitutional.

As a result of Nik Nazmi being charged for the second and third time, the elected representative filed a legal action for malicious prosecution. Last month, the Kuala Lumpur High Court has ordered former Attorney General Abdul Gani Patail and the Malaysian government to pay RM230,000 in total damages and RM10,000 costs.- Mkini