Friday, October 2, 2015

Conflicting judgment on rally organisers baffles lawyers

Hafiz Yatim

Yesterday’s Appeals Court judgment against R Yuneswaran, which found the fine against the organiser of the 505 rally in Johor Baru to be ‘constitutional’, poses a huge question mark on future cases.
Lawyers say the conflicting decisions - from a court of the same stature, ruling on the constitutionality of the same section under the same law - will only befuddle the outcome of other cases of similar nature.
The about-turn by the Court of Appeal has also made history of sorts.
“This is probably the first time the same court has ruled contradictorily on the same section,” lawyer New Sin Yew told Malaysiakini.
When contacted, New said the Court of Appeal should be bound by its earlier decision.
“As a general rule, the Court of Appeal is bound by its own decisions. It’s curious that the Court of Appeal chose to depart from its previous decision in the Nik Nazmi Nik Ahmad's case,” he said.
Lawyer Sivarasa Rasiah, who represented Yuneswaran, said yesterday that only the Federal Court should have the power to overturn the precedent set in Nik Nazmi’s case.
“It is an unsatisfactory state of the law and against the normal judicial conventions, where you have one Court of Appeal basically overruling another Court of Appeal,” he told reporters yesterday.
‘10-days notice enforceable’
In its judgement yesterday, Court of Appeal president justice Md Raus Sharif, ruled that Section 9(5) of the Peaceful Assembly Act 2012 (PAA) which criminalises the failure to give 10 days’ notice for a rally, to be “constitutional, valid, and enforceable”.
New (left) said lawyers would now have to wait for the written grounds to analyse the judgment in detail.
Justice Md Raus, who is the number two in the judiciary, ruled: “The imposition of criminal sanction under Section 9(5) of the PAA for the breach of the requirement to give notice is not ultra vires to Article 10(2)(b) of the federal constitution.
“Section 9(5) is entirely constitutional, valid, and enforceable.”
With yesterday's decision, the Court of Appeal also upheld the RM6,000 fine imposed on Yuneswaran, which the Johor PKR executive secretary settled.
The judgment is in contrast to the Nik Nazmi case ruled by the Court of Appeal last year in a landmark decision.
In the earlier decision, the panel declared the same Section 9(5) of the PAA 2012, which punishes those who do not give 10 days' notice before holding an assembly, to be ‘unconstitutional’.
The judges ruled that the punishment where the organiser faces a RM10,000 fine for failure to give 10 days’ notice for a rally as null and void. The appellate judges also struck out the charge against Nik Nazmi.
Three judgments on ‘unconstitutionality’
Lawyers for Liberty executive director Eric Paulsen told Malaysiakini that the NGO is disappointed with the Court of Appeal’s decision yesterday.
“Nik Nazmi's case was a landmark in the protection of fundamental rights in Malaysia.
“That decision by the previous bench is a very strong and progressive decision with three separate judgments,” he said when contacted.
Paulsen pointed out that because there are two conflicting decisions at the Court of Appeal, it would now be open for the lower courts to choose which decision they will adhere to when deciding on future cases for those charged under the same section.
Not only that, the decision today will have an impact on ongoing PAA cases related to Section 9(5), where the organiser fails to give proper notice.
The Nik Nazmi case was decided by Court of Appeal judges justice Mohamad Ariff Md Yusof, Mah Weng Kwai and also Hamid Sultan Abu Backer.
Justice Mah, in his written judgment, declared both Section 9(1) that requires the 10 days' notice and Section 9(5), which is the punishment for notice not given, as ‘unconstitutional’.
‘Punishing peaceful assembly unconstitutional’
However, justice Ariff and justice Hamid, in their separate judgments, declared that only Section 9(5) was unconstitutional.
“The Section 9(1) requirement of 10 days' notice under the PAA is constitutional, but Section 9(5) that punishes peaceful assembly is unconstitutional,” said justice Ariff.
“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 written judgment.
“Section 9(5) makes a mockery of the right to freedom of assembly,” said justice Mah, adding that freedom of assembly outweighs any inconvenience that might be caused by problems following a protest, such as traffic jams.
Justice Ariff and justice Mah retired earlier this year.

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