No reason to charge organisers who fail to give notice on assemblies, say lawyers

New Straits Times

6 hours ago

KUALA LUMPUR: There is no reason to haul people to court for failing to provide prior notification for assemblies, legal experts have said.
After the Federal Court declared that Section 9(5) of the Peaceful Assemblies Act 2012 was unconstitutional, the police must abide by this ruling, said former co-chair of the Bar Council Human Rights Committee and Constitutional Law Committee Andrew Khoo.
"The problem is that in the past, there have been occasions where law enforcement agencies have ignored court orders with impunity.This can never and no longer be the case.
"What this decision affirms is the constitutional right to freedom of peaceful assembly," he said.
Constitutional lawyer Joshua Wu said that there were conflicting decisions prior to the Federal Court's ruling yesterday.
"The cases of Nik Nazmi Nik Ahmad v PP and PP v Yuneswaran Ramaraj (at the Court of Appeal) – Section 9(5) of the PAA 2012 was held to be unconstitutional in Nik Nazmi's case, but was held to be constitutional in Yuneswaran's case," he said.
Consequently, the police continued to use Section 9(5) against organisers of public assemblies who did not give the police the five days notice required under Section 9(1) of the Act, he said.
"There will no longer be criminal sanctions or prosecutions for non-compliance with Section 9(1) of the Act. This will consequently open the doors for more public assemblies to be organised, particularly on short notice," he said.
He explained the Federal Constitution only allowed for parliament to introduce "restrictions" and not "prohibitions", which was why Section 9(5) of the PAA 2012 was deemed unconstitutional.
International Islamic University Malaysia (IIUM) constitutional expert Associate Professor Datuk Dr Wan Ahmad Fauzi Wan Husain, however, said local authorities must provide a space to assemble under Section 9(2) of the Act to allow operating Section 9(5).
"Article 10 already imposes a limitation to a public assembly besides other constitutional restrictions.
"That is why curtailing the freedom to a peaceful assembly without providing or stipulating a place can be an unproportionate balance of restrictions under Article 10. The question here is, does Section 9 provide such reasonable restrictions?" he asked.
He added that subsection (5) must be read with subsection (2) of the provision.
"Reading the above sections, the right approach is that the local authority must provide an assembly place under Section 9(2) before enforcing Section 9(5).
"Therefore, the issue is whether Section 9(5) can be enforced by the authorities in the case before the court. In my opinion, a constitutionality issue does not arise," he said.
Yesterday, the Federal Court declared it unconstitutional to criminalise the failure to notify the police five days in advance before holding a peaceful assembly.
Delivering the unanimous decision by a five-member bench, Chief Justice Tengku Maimun Tuan Mat said Section 9(5) of the Peaceful Assembly Act 2012 imposed a penalty that went beyond what was allowed under Article 10(1)(b) of the Federal Constitution, which guaranteed the freedom of speech, assembly and association.