Bar praises judges for individual judgments in constitutional case

The Malaysian Bar has commended the three Court of Appeal judges for writing separate judgments in declaring a provision under the Peaceful Assembly Act (PAA) as unconstitutional yesterday.

Its president Christopher Leong (pic) said it was always important, particularly in constitutional issues, that each member of the Bench fully addressed his own minds to the issue and have his own articulation as to the reasoning for his decision.

"We look forward to reading the full text of their written judgments," Leong said in a statement.

The landmark ruling of Judges Datuk Mohd Arif Mohd Yusof, Datuk Mah Weng Kwai and Datuk Hamid Sultan Abu Backer will be made available on Monday.

All three were practising lawyers before they were elevated to the bench.

Members of the legal fraternity also praised the move by the three appellate court judges to deliver separate judgments.

Robert Lazar said separate judgments promoted the development of the law which is of public importance.

"In this case, they have come to the same conclusion but appear to have taken different approaches. The legal fraternity is eager to know what were the legal principles established," he said.

Lazar noted that it was common in matured judiciaries like in the United States, the United Kingdom and Australia for judges to write individual judgments.

Meanwhile, Andrew Khoo Chin Hock, who is also chairman of the Bar Council’s Human Rights Committee, said knowing how the judges arrived at a decision was as important as the decision itself.

"Such good practice should be encouraged as we will know what was in the mind of the judges," he added.

It is common practice for federal and appellate judges to deliver one written judgment if their decision is unanimous. Only if there is a dissenting judge in a case, would there be a separate judgment written by the dissenting judge.

One notable exception to the norm was the 1988 case in which Lim Kit Siang, who was then Parliamentary opposition leader, had challenged the government's plan to award the RM3.4 billion North-South highway to UEM, a company linked to Umno.

The then Supreme Court judges wrote separate grounds in a decisive 3-2 verdict in favour of the government. The bench dissolved Lim's earlier interim injunction obtained from the High Court on grounds he was a mere busybody and had no locus standi in the matter.

Yesterday, in acquitting the Selangor legislative assembly deputy speaker Nik Nazmi Nik Ahmad of a charge of not giving 10 days’ notice of a rally, the appellate court judges affirmed the fundamental right of citizens to assemble peacefully.

Nik Nazmi, who is also Seri Setia state assemblyman, was charged under the Peaceful Assembly Act for not giving notice to hold the Blackout Rally at the Stadium Kelana Jaya last year, in the aftermath of the general election.

He failed last November to get the Shah Alam High Court to strike out the charge against him on grounds that sections 9 (1) and 9 (5) of the PAA were unconstitutional.

High Court judge Noor Azian Shaari said the two clauses of the PAA, which were the basis of the charge against Nik Nazmi, were reasonable and did not go against Article 10 of the Constitution on grounds of national security.

Nik Nazmi ran the risk of being fined up to RM10,000 and if convicted, faced the prospect of being disqualified from public office.

The appellate court judges yesterday said it was ironic to declare a peaceful assembly illegal as this was not stated in the PAA.

Leong said the Bar agreed that section 9(5) of the PAA is unconstitutional as it made it an offence for failing to give a 10-day notice to the police before holding a meeting.

“We also agree that Section 9(1) of the PAA is constitutional as it required a rally organiser to give 10 days notice to the police.

Leong said the Bar had always maintained the position that Article 10 of the Federal Constitution guaranteed the rights of peaceful assembly and of expression.

"These rights must necessarily include the right to protest, whether at a fixed or designated place or by way of a procession.

“The proviso in Article 10(2)(b) cannot be construed or applied to defeat these fundamental rights," he added.

Leong said the proviso only allowed the authorities to impose such restrictions as necessary or expedient in the interests of national security.

He said the authorities would take measures to facilitate all peaceful assemblies and in doing so, may impose only such restrictions as are necessary to address a particular public order issue.

Leong said it was to be noted that an assembly which was violent or intended to be violent did not in the first place qualify as a right guaranteed under Article 10(1) as a peaceful assembly.

"Section 9(1) of the PAA on the 10-day notice period ought to be read in light of the above constitutional provisions to provide the police with sufficient time to consider, plan and implement measures to facilitate a peaceful assembly," he said.

He also said the constitution, the PAA and the Court of Appeal did not recognise non-peaceful assembly as a right and action may be taken under the Penal Code. – April 26, 2014.