The authorities must refrain from arresting and charging organisers of the May 1 anti-Goods and Services tax rally, in light of the landmark Court of Appeal decision on Friday that declared the punishment under Section 9 (5), is unconstitutional.
Bar Council president Christopher Leong said the attorney general should not proffer any charges on the organisers due to the appellate court’s decision, or keep the charge in abeyance.
He said this is because the Court of Appeal’s decision is now considered the law.
“The AG Chambers would have to appeal the Court of Appeal's decision and wait for the outcome before charging anyone,” he emphasised, when asked on the position of the law in light of Friday's appellate court decision and tomorrow's expected rally against the implementation of the GST.
Quizzed on whether the organisers can be charged after the appeal, Leong said the AG can, if it is successful.
Tomorrow is Labour Day, a public holiday, and it is reported that trade unions and opposition parties are ready to rally in Kuala Lumpur in opposition of the government's implementation of the Goods and Services Tax on April 1, next year.
They claimed police have approved the rally, to be held at Jalan Raja.
'AG can be cited for contempt'
Lawyer Ranjit Singh said the Appeal Court’s decision on Friday was right.
"It is preferable that the organisers inform the authorities for security and safety purposes. However, it is wrong to punish the organiser of a peaceful rally for not giving notice, as the right to freedom of assembly is enshrined in the constitution," he said.
Another lawyer, Razlan Hadri Zulkifli (left), opined that if the AG decides to go ahead and charge any person under the section which has now been deemed unconstitutional, he could be cited for contempt in disrespecting the Court of Appeal judgment.
On Friday it was reported that the three-member panel led by Justice Mohd Ariff Mohd Yusof, declared Section 9 (5), that punishes those who failed to give notice to the authorities with a RM10,000 fine, was unconstitutional and against Article 10 regarding freedom of expression.
Justice Mah Weng Kwai, the second member in the panel, said both Section 9 (1) that requires the 10 days' notice and Section 9 (5), (which is the punishment for notice not given), is unconstitutional.
However, Justice Ariff and Justice Hamid, in their separate judgments, declared that only Section 9(5) was unconstitutional.
“The right to peaceful assembly is guaranteed under Article 10(1) (b) of the Federal Constitution and hence, it cannot be criminalised,” Justice Hamid said in his decision.
“Section 9(5) makes a mockery of the right to freedom of assembly,” added Justice Mah in his judgment.
He said further that freedom of assembly outweighs any inconvenience that might be caused by problems following a protest, such as traffic jams.
Despite Friday's appellate court decision, it was reportedon Monday that the Ipoh Sessions Court judge had refused an application to grant a discharge to Perak PKR secretary Mohammad Anuar Zakaria, who faces a charge under Section 9(1) of the PAA.
However the Kuala Lumpur Sessions Court had granted a discharge to Solidarity Anak Muda Malaysia (SAMM) leader Badrul Hisham Shahrin (right) on a similar charge.
The Attorney-General’s Chambers has indicated they are appealing against Friday's Court of Appeal decision at the Federal Court.