Assembly law gives ‘life’ to rally rights, court told

Malay Mail 
by IDA LIM

PUTRAJAYA, Jan 23 — Putrajaya’s controversial assembly law does not violate an individual’s constitutional right to rally but helps facilitate it instead, a government lawyer told the Court of Appeal today.

DPP Wan Shaharuddin Wan Ladin defended Section 9 of the Peaceful Assembly Act (PAA) 2012 — which stipulates a 10-day notice as requirement to hold a gathering — saying the court must refer to Parliament’s intention when it passed the law.

“Actually Section 9 memberi nafas (gives life) to Article 10 (of the Federal Constitution), facilitating peaceful assemblies that are carried out,” he told a three-man panel here.

The lawyer also showed the court an extract of the Hansard, which records Parliament proceedings.

PKR state lawmaker Nik Nazmi Nik Ahmad is seeking a declaration that the two clauses under the Peaceful Assembly Act (PAA) — sections 9(1) and 9(5) — are unconstitutional.

Referring to the Hansard, Wan Shaharuddin also said the 10-day notice by rally organisers would enable the police to ensure “public order” and “public tranquillity”.

Under the PAA’s Section 9, the police would have time to collect feedback from the public on their views, which Wan Shaharuddin said was fairer than the police’s previous practice of consulting its Special Branch division before deciding on issuing permits for rallies.

Previously, rally organisers had to obtain police permits as required under Section 27 of the Police Act 1967, but now they are only required to inform the police 10 days ahead of the gathering and comply with any conditions imposed by the police.

When commenting on whether the 10-day notice requirement was a “reasonable” and “proportionate” restriction, the lawyer argued that the assembly rights of Nik Nazmi in this case has to be balanced against the rights of “the majority”.

One of the judges, Datuk Hamid Sultan Abu Backer, interjected and said that the issue at hand was not the “fundamental value” of citizens being allowed to assemble.

Hamid also pointed out the Federal Constitution’s status as the country’s supreme law, saying “Constitution comes before the Hansard”.

Earlier, when arguing that the clauses were unconstitutional, Nik Nazmi’s lawyer N. Surendran acknowledged that Article 10 states that “restrictions” may be placed on assembly rights in the interest of public order and security.

But Surendran argued that the PAA’s Section 9 blocked spontaneous assemblies and was “unreasonable”, saying: “The effect of it is no longer restriction but total prohibition.”

Claiming that Section 9 “impaired” the constitutional right to freely assemble, Surendran also complained that it “criminalised” peaceful gatherings even though Article 10 did not specify that criminal punishment can be meted out to impose restrictions.>

The three-man panel headed by Datuk Mohamad Arif Md Yusof said that both sides must hand in their additional written submissions by February 10, while their decision will be delivered on February 14.

After failing last November to get the Shah Alam High Court to quash a charge against him based on these PAA clauses, Nik Nazmi’s trial at the Petaling Jaya Sessions Court will start on February 17.

Nik Nazmi had also failed to get the Shah Alam High Court to declare the PAA’s sections 9(1) and 9(5) as unconstitutional on the grounds that the 10-day notice requirement would prohibit the holding of spontaneous assemblies when the need arises.

In her judgment last year, High Court judge Noor Azian Shaari said the two clauses of the PAA, which were the basis for Nik Nazmi’s charge, were “not unreasonable” and did not go against the Federal Constitution’s Article 10 as they were well within the ambit of upholding national security.

On May 17 last year, Nik Nazmi, who was then-PKR communications director, was charged in the Petaling Jaya Sessions Court for allegedly failing to give the police sufficient notice before organising the Black 505 rally at the Kelana Jaya stadium on May 8.

The rally was held to protest the allegedly widespread electoral fraud during the 13th General Election on May 5 last year, where the ruling Barisan Nasional coalition retained power, albeit with a diminished parliamentary majority and less than half the popular vote.

Nik Nazmi, who is also a deputy Speaker of the Selangor state assembly, could be fined up to RM10,000 if convicted, and faces the possibility of being disqualified from public office.

Under the Federal Constitution, an elected representative is disqualified from office if fined more than RM2,000 or jailed for a term exceeding one year.