PUTRAJAYA: The Court of Appeal here has declared that an organiser of a public gathering cannot be punished for not giving a 10-day notice before the event.
Justice Mohamad Ariff Md Yusof ruled in a landmark judgment that Section 9(5) of the Peaceful Assembly Act (PAA) 2012 – which calls for a fine of up to RM10,000 for those who fail to give notice – was unconstitutional.
“That which is fundamentally lawful cannot be criminalised,” he said, referring to the right to assemble peacefully enshrined within Article 10 of the Federal Constitution.
The panel unanimously allowed the appeal by former PKR strategic director Nik Nazmi Nik Ahmad to have Sections 9(5) of the PAA to be declared unconstitutional and quashed the charge against him.
“Thus the charge and prosecution is invalid and set aside. The applicant (Nik Nazmi) is also acquitted and discharged,” ordered Justice Ariff.
The other two judges on the panel – Justices Mah Weng Kwai and Hamid Sultan Abu Backer – also read out their own judgments, which spanned almost two hours.
Justice Mah noted that the restriction placed by Section 9(1) – which required a 10-day notice be given – was a disproportionate restriction.
He said there were existing provisions under the Penal Code to charge those attending the assemblies, should they become unruly.
Justice Hamid Sultan found that the 10-day notice requirement was not ultra vires Article 10(2) of the Federal Constitution, saying it was the organiser’s social responsibility to inform the police to ensure the assembly participants’ safety.
The written judgments are expected to be made available on Monday, said Justice Ariff.
Nik Nazmi, who is Seri Setia assemblyman, was charged under Section 9 (1) of the PAA on May 17, 2013 for his failure to notify the police 10 days prior to the Black 505 rally at the Kelana Jaya Stadium on May 8.
However, Shah Alam High Court had on Nov 1, dismissed his application to strike out the charge stating that the 10-day notice period under PAA was not unconstitutional.