PETALING JAYA: The police investigation into the ‘Save Malaysia’ rally is in breach of the Peaceful Assembly Act (PAA) 2012, says Lawyers for Liberty (LFL).
Its director Zaid Malek said the declaration by the police to declare the assembly unlawful for failure to give adequate notice not only goes beyond the ambit of the PAA, but also violates the Federal Constitution.
This comes after Kuala Lumpur police chief Datuk Allaudeen Abdul Majid said that the rally was unlawful as it allegedly did not comply with the PAA and up to 25 persons involved in the rally on Sept 16 being summoned for questioning.
"Even if there was a breach of the PAA as alleged, this does not allow the police to declare an assembly unlawful. The right to assemble peacefully is a constitutional guarantee enshrined in article 10(1)(b) of the Federal Constitution," said Zaid.
"It is thus unlawful for the police to make such declarations," he added in a statement on Monday (Sept 18).
Zaid added that the ongoing investigation into the alleged failure to give proper notice of the assembly is also without any legal basis.
He said that such an investigation would be for an offence under section 9(5) of the PAA, which states that a failure to give notice would make one liable to a fine not exceeding ten thousand ringgit.
Zaid however added that the Court of Appeal struck down section 9(5) of the PAA for being unconstitutional in the case of Nik Nazmi bin Nik Ahmad v Public Prosecutor in 2014.
"The decision of the Court of Appeal in this case still stands and has not been overturned by a higher court," he said.
In 2015, another court of appeal bench in PP v Yuneswaran gave an opinion that s 9(5) is constitutional and disagreed with the Nik Nazmi decision.
However, the 2015 court could not overrule the earlier decision as both courts are of the same level.
Only the Federal Court, which is a higher court, could have overruled the Nik Nazmi decision, said Zaid.
"This has never happened, and the decision remains valid and enforceable until now," he added.
Zaid said that this has serious ramifications for police investigations into breaches of the PAA and added that the current investigation has no basis in law and is hence unlawful as it is based on a section of the PAA that has already been struck down by the courts.
He called for the government to stop the police from running rampant by instituting unlawful investigations.
"We do not live in a police state; they cannot enforce what is not law. It is shocking that the Attorney-General’s Chambers has allowed these types of investigations and prosecutions to be carried out despite the court’s decision in 2014," he added.
Zaid then said that the police must immediately halt any and all illegal investigations under section 9(5) of the PAA.
"Our Constitutional and legal rights must be protected, and its violation, especially by enforcement authorities must never be tolerated," said Zaid.