PUTRAJAYA: The right to peaceful assembly, ought to include the right to organise a peaceful assembly and can only be restricted reasonably, and not prohibited, said the Court of Appeal on Monday.
Judge Justice Mah Weng Kwai, said this in the landmark judgment which held that Section 9(5) of the Peaceful Assembly Act (PAA) that criminalises the failure to give a 10-day notice to the police before a gathering to be unconstitutional.
Justice Mah, in his 29-page written judgment, said that this position was clearly spelt out in Article 10(2)(b) of the Federal Constitution, which speaks of "restrictions" and not "prohibitions".
"I am of the considered view that the restriction imposed by Section 9(1) and Section 9(5) of PAA is not reasonable as it amounts to an effective prohibition against urgent and spontaneous assemblies.
"However, Section 9(1) on its own, without the offence and penalty in Section 9(5), does not have the effect of prohibiting urgent and spontaneous assemblies.
"Accordingly, I hold that Section 9(5) ought to be severed from the notice requirement in Section 9(1) and struck down for being unconstitutional," he said.
Justice Mah said for the PAA to require an organiser to give a 10-day notice, not be a reasonable connection between the right to assemble peacefully, whether spontaneously or within a short period of time, and the requirement for a 10-day notice for purposes of security and good public order.
He said that the requirement for the 10-day notice far outweighs the relative "inconvenience" caused by the occasion of the assembly and should thus be deemed "disproportionate".
"Should there be any traffic violations or dislocation to business activities which is unlawful or breaches of public safety and security, they can be adequately dealt with under existing laws such as the Road Transport Act 1987, the Penal Code and other relevant laws by the police and other law enforcement agencies efficiently as they are already trained personnel to deal with any exigencies," he said.
He said that it would be impossible for an organiser to organise a spontaneous assembly without facing the threat of prosecution and there was no provision in the PAA for any exemption even if the need for the assembly was extremely urgent.
He said that the restriction must have an objective that is sufficiently important to justify limiting the right in question.
"Significantly, it was a static assembly and not a street procession or demonstration.”
He said further that the 10-day notice requirement had rendered the freedom to hold spontaneous and urgent assemblies illusory.
He said it would be impossible for the organiser to have given the 10-day notice to the police.
"As things stand, no organiser can ever organise an assembly to be held within 10 days even if he gives notice, as in the case of the appellant, without running foul of the law," he said.
He pointed out there was inconsistent and incongruous position of the law over the matter.
"However, the irony is that whilst citizens can lawfully take part in a spontaneous or urgent assembly, an organiser cannot be seen to organise one without breaching the law.
"A participant in a peaceful assembly held without the 10-day notice, commits no wrong whereas the organiser will be held criminally liable under Section 9(5) for not having given the 10-day notice, notwithstanding that the impugned assembly was held peacefully and without arms," he said.
Judge Mohamad Ariff Md Yusof, who chaired a three-man panel, had on Friday allowed an appeal by Parti Keadilan Rakyat's former communications director Nik Nazmi Nik Ahmad and acquitted him.
He was charged in his capacity as an organiser of an assembly held at a stadium in Kelana Jaya on May 8 last year.
Nik Nazmi, who is the Seri Setia assemblyman, had failed to notify the Petaling Jaya OCPD of the gathering within the time required under the PAA.
The Shah Alam High Court had on Nov 1 last year dismissed his application to set aside his charge.
Justice Mohamad Ariff, in his 26-page written judgment, found that Section 9(1) of the PAA to be constitutional, saying that the length of notice is a matter ultimately of legislative policy.
Justice Mohamad Ariff, however, said that there was no provision in the PAA, which stipulates that an assembly held without the requisite prior notice is per se unlawful.
"Thus, that which is fundamentally lawful cannot in the same breath result in an unlawful act on the part of the organiser by reason of an administrative failure or omission.
"To my mind, such a dichotomy is irrational in the legal sense, and even if it were to be regarded as somehow rational, or does not offend the legal test of conventional unreasonableness, the legislative response is wholly disproportionate to the legislative objectives," he added.
Justice Hamid Sultan Abu Backer, in his 42-page judgment, said that restrictions imposed could be arbitrary or excessive.
"In my considered view, if the assembly itself was peaceful, then a penal sanction against the organisers will not qualify for any intended protection having direct nexus or proximity to Article 10(2) of the Federal Constitution,” he said.