KUALA LUMPUR – Criminal punishment for assembly organisers who fail to give notice has been deemed unconstitutional by the Court of Appeal in 2014, said Lawyers for Liberty (LFL) amid police investigations into the Perikatan Nasional-led Save Malaysia gathering.
According to LFL director Zaid Malek today, the appellate court in 2014 struck down Section 9(5) of the Peaceful Assembly Act 2012 (PAA) for being unconstitutional in the case of Nik Nazmi Nik Ahmad v public prosecutor (PP).
“The decision of the Court of Appeal in this case still stands and has not been overturned by a higher court. In 2015, another appellate bench in PP v Yuneswaran gave an opinion that Section 9(5) (of the PAA) is constitutional and disagreed with the Nik Nazmi decision.
“However, the 2015 court could not overrule the earlier decision as both courts are of the same level. Only the Federal Court, which is a higher court, could have overruled the Nik Nazmi decision. This has never happened, and the decision remains valid and enforceable until now.”
With this, Zaid is calling for an immediate halt to police investigations under Section 9(5) of the PAA and pending investigations or prosecutions since 2014 to be suspended, with the matter referred for disposal to the attorney-general.
This comes after Kuala Lumpur police chief Datuk Allaudeen Abdul Majid said last Saturday that the rally was unlawful as it did not comply with the Peaceful Assembly Act 2012 (PAA).
Zaid said even if there was a breach of the PAA as alleged, this in itself “does not allow the police to declare an assembly unlawful”.
“The right to assemble peacefully is a constitutional guarantee enshrined in Article 10(1)(b) of the federal constitution. It is unlawful for the police to make such declarations.”
He added that the government must not allow the police to run rampant by instituting unlawful investigations, and remaining silent is an endorsement of extra-legal acts by the authorities.
“We do not live in a police state; they cannot enforce what is not law. It is also shocking that the Attorney-General’s Chambers has allowed these types of investigations and prosecutions to be carried out despite the court’s decision in 2014.”
Yesterday, Deputy Inspector-General of Police Datuk Seri Ayob Khan Mydin Pitchay said the authorities had identified 25 individuals believed to be involved in last Saturday’s gathering.
He added that 22 of them have been contacted, and six will be giving their statements at the Dang Wangi district police headquarters today. – September 18, 2023