Section 9 (5) of PAA unconstitutional: court

PUTRAJAYA - A landmark ruling by the Court of Appeal, which held an organiser who failed to give the 10-day notice to police before a gathering would not attract a criminal penalty under section 9 (5) of the Peaceful Assembly Act (PAA) 2012, has been maintained.

Following this, the prosecution had withdrawn its appeal at the Federal Court here today against the Court of Appeal's ruling on the case of Seri Setia State Assemblyman Nik Nazmi Nik Ahmad.

Nik Nazmi was charged for failing to notify the district police within the required 10-day notice period for the Black 505 rally at Stadium Kelana Jaya on May 8, 2013, under Section 9(5) of the PAA which carries a fine of up to a maximum of RM10,000, if convicted.

On April 25, last year, a three-member Court of Appeal panel chaired by Justice Datuk Mohd Ariff Mohd Yusof ruled that section 9 (5) of the PAA was unconstitutional as any non-compliance on the part of the organiser would not attract a criminal penalty.

Justice Mohd Ariff held that the PAA provisions do not per se render unlawful an assembly held without the prior 10 days' notice or held within a shorter notice period.

Another judge, Justice Datuk Mah Weng Kwai said Section 9 (5) of the PAA which criminalises the organiser's failure to give the 10-day notice before a gathering was unreasonable as it amounted to an effective prohibition against urgent and spontaneous assemblies.

He said the right to organise and assemble peacefully could only be restricted reasonably and not prohibited as defined in Article 10 (2) (b) of the Federal Constitution.

"By criminalising and punishing an organiser under Section 9 (1) and 9 (5) of the PAA, it draws into sharp focus the inconsistency and inequality that it creates.

"The section makes a mockery of the right of the appellant (Nik Nazmi) to freedom of a peaceful assembly by criminalising the default in failing to give the necessary notice to the district police chief," said Justice Mah.

At today's proceedings, Court of Appeal President Tan Sri Md Raus Sharif, chairing a panel of five Federal Court judges had struck out the appeal by the prosecution after the prosecution withdrew its appeal.

Deputy Public Prosecutor Manoj Kurup informed the bench that the prosecution withdrew the appeal as the case originated from the Sessions Court and it must end at the Court of Appeal.

When asked by the media, counsel Latheefa Koya who represented Nik Nazmi said today's outcome meant that the ruling by the Court of Appeal was maintained.

With this, Nik Nazmi was also freed from the charge of failing to notify the district police on the Black 505 rally within the required 10-day notice period, as the Court of Appeal on April 25, last year had allowed his appeal to strike out the charge.

Nik Nazmi filed the appeal after the Shah Alam High Court on Nov 1, 2013 had dismissed his application to strike out the charge - Bernama