Court of Appeal judges Datuk Seri Mohamad Apandi Ali and Datuk Linton Albert were in the majority. Apandi also said the Police Act was not unconstitutional.
“The restriction to participate in an assembly is regulatory and not prohibitory,” he said at the Palace of Justice in Putrajaya today.All the five were fined RM3,900 in a magistrate's court in 2005 and they had paid the fine.
Judge Datuk Hamid Sultan Abu Backer who dissented said the requirement to obtain a police permit was unreasonable.
Apandi, in his 50-page judgment, said there was no merit to the appeal as the Police Act did not prohibit the right to a peaceful assembly and police were duty-bound to maintain security and public order.
Hamid said the primary role of the court was to preserve, protect and defend the constitution and judges were guardians of the supreme law.
He said the constitution did not permit Parliament to arm the executive and a public authority with uncivilised power or discretion which may usurp the spirit and intention of the supreme law.
Hamid said in this case there was a requirement under Section 27 of the Police Act to obtain a licence but in that process the police could not refuse to grant the licence.
"They can only place terms to regulate the assembly and licence has to be issued to all without any form of subjective discrimination failing which it will violate article 8(1) of the Constitution (equality before the law)," he said in his 77-page written grounds.
He said freedom to assemble was a right recognised under the Constitution and did not permit any legislation to compromise on that right, except to regulate.
On June 8, 2001, a group of university students was involved in a protest against the use of the now repealed Internal Security Act on a number of human rights activists.
The five were charged with participating without a police permit. They were subsequently expelled from their universities.
Initially, the trial court acquitted them without their defence being called.
However, the public prosecutor appealed to the High Court and they were ordered to enter their defence.
They were found guilty and fined RM3,900 each.
The High Court in 2011 also dismissed their appeal and maintained the conviction.
Lawyer Edmund Bon said the outcome was disappointing but there was a consolation because Hamid had provided a strong dissenting judgment.
"Hopefully constitutional lawyers can pursue this matter before the Federal Court in future cases," he said. - September 4, 2013.
~ The Malaysian Insider