THERE are nine articles on fundamental rights (articles 5-13) in the Federal Constitution. It must be remembered though that the rights are not equal in the sense that some of these rights permit no derogation in ordinary times while other fundamental rights may be limited on specified grounds.

The latter category rights are those rights which may be limited on specific grounds, otherwise described as permissible restrictions — that is, article 5 (liberty of person), article 9 (slavery and forced labour), article 10 (freedom of speech, assembly and association) and article 13 (rights to property).

There are two discernible categories of permissible restrictions. The first category is quite broad as it permits restrictions in accordance with law, as can be seen in article 5(1) and article 13(1). In contrast, the second category is more specific in the sense that the grounds permitted are limited by the Constitution.

Consider, for example, article 10 on freedom of speech, assembly and association. article 10(2) says parliament may by law restrict:

1. Freedom of speech on eight grounds: national security, friendly relations with other countries, public order, morality, incitement to any offence, defamation, contempt of court, or privileges of Parliament.

2. The right of assembly on two grounds: national security or public order.

3. The right of association on three grounds: national security, public order, or morality.

The word “law” in the Constitution is defined to include the Constitution, acts of parliament, ordinances and enactments (See article 160(2); Section 3 and Section 66 of the Interpretation Acts 1948 and 1967). It follows that restrictions on freedom of speech, assembly and association may be imposed by the provisions of the Constitution or acts of parliament.

In the recent case of Datuk Seri Anwar Ibrahim v Kerajaan Malaysia & Anor (2021), Federal Court judge Vernon Ong, in a dissenting judgment, considered section 4 (right to organise assembly or participate in assembly), section 9 (notification of assembly) and 15 (restrictions and conditions) of the Peaceful Assembly Act 2012 (PAA) and section 141 (unlawful assembly) of the Penal Code as imposing permissible restrictions on the right of assembly.

Section 4 of the PAA does not extend the right to organise an assembly or participate in an assembly peaceably and without arms to (a) a non-citizen; (b) an assembly held at any prohibited place and within 50 metres from the limit of the prohibited place; (c) a person below the age of 21 years; and (d) a child. Otherwise, an offence is committed.

Section 9(1) of the PAA imposes a duty on an organiser to give a five-day notice to the officer in charge of the police sistrict (OCPD) in which the assembly is to be held. The notification does not apply to (a) an assembly which is to be held at a designated place of assembly; and (b) any other assemblies as may be specified in the third schedule. Subsection (5) states that a person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding RM10,000.

However, in Public Prosecutor v Yuneswaran a/l Ramaraj (2015) the Court of Appeal held that the requirement under section 9(1) of the PAA to give notice prior to the exercise of the right to assemble peaceably is not a ‘restriction’ within the meaning of article 10(2)(b) of the Constitution.

The court also held that the imposition of criminal sanction under subsection (5) for breach of requirement to give notice is not ultra vires article 10(2)(b). Subsection (5) is entirely constitutional, valid and enforceable. The court thus departed from the earlier decision in Nik Nazmi Nik Ahmad v Public Prosecutor [2014].

The court said that the purpose of the PAA is to facilitate the exercise of the right of assembly granted by article 10(1)(b) of the Constitution, and not to restrict it. The PAA is procedural in nature, and does not affect the substantive right to assemble peaceably. The PAA merely sets out a series of procedural steps to be taken to ensure and facilitate the exercise of a constitutional right.

The court also said that under the PAA, the police have ceased its function as a decision maker. Instead, they have assumed the role as a regulator and facilitator for peaceable assembly. The requirement for the then 10-day notice in advance – five-day notice now – is crucial and reasonable to enable the police to make the “necessary plan and preparation” to satisfy their legal obligation under the PAA, particularly to facilitate the lawful exercise of one’s right to assemble peaceably as well as to preserve public order and protecting the rights and freedoms of other persons.

In that case, the respondent was the executive secretary of Johor Baru PKR who was charged in his capacity as an organiser of an assembly, an offence under section 9(1) of the PAA, which is punishable under subsection (5). The assembly was held at the Johor Baru office of PKR. It was alleged that the respondent had failed to notify the OCPD of Johor Baru Selatan of the gathering within the time stipulated under the PAA, which was then 10 days before the assembly was scheduled to be held.

The respondent denied he was the organiser of the assembly. The Sessions Court judge found that the respondent was the organiser as defined in Section 3 of the PAA. The Sessions Court judge held that the prosecution had proved its case against the respondent beyond reasonable doubt and consequently the respondent was found guilty, convicted as charged and sentenced to a fine of RM6,000 and in default thereof, three months imprisonment.

The respondent appealed to the High Court against the conviction and sentence. During that period, the Court of Appeal delivered its decision in Nik Nazmi Nik Ahmad where the court declared that subsection (5) was unconstitutional. The High Court judge upheld the findings of the Sessions Court judge. However, the High Court judge held that it was bound by the decision in Nik Nazmi and on those grounds alone, the High Court judge allowed the respondent’s appeal and set aside the decision of the Sessions Court judge. The public prosecutor appealed against the High Court’s decision.

The Court of Appeal allowed the appeal and affirmed the conviction and sentence imposed by the Sessions Court judge.

Failure to obey a federal law, namely, section 9(5) of the PAA is an offence.

Happy Malaysia Day. Let’s “segulai sejalai” (together with one another) and not commit any offence on this auspicious day. – September 16, 2023.

* Hafiz Hassan reads The Malaysian Insight.