LAWYERS for Liberty (LFL) said the police must immediately stop any illegal investigation under Section 9(5) of the Peaceful Assembly Act (PAA) against those who participated in last Saturday’s “Save Malaysia” rally, which was held in Kuala Lumpur.  

LFL director Zaid Malek said the rally organised by Perikatan Nasional members did not break the law as alleged by the police as the right to assemble is guaranteed under the Federal Constitution. 

“For 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 Constitution,” Zaid said in a statement today. 

“Even if there was a breach of the PAA as alleged, this in of itself 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. It is thus unlawful for the police to make such declarations.” 

On Saturday, Kuala Lumpur police chief Allaudeen Abdul Majid said the rally was not in compliance with the PAA. 

Allaudeen said despite the rally organisers submitting a notice to the police about the gathering, it did not adhere to guidelines outlined in the PAA.

Zaid said the ongoing investigation over the alleged failure to give proper assembly notice is without legal basis.  

Citing the Court of Appeal decision in the case of Nik Nazmi bin Nik Ahmad v Public Prosecutor in 2014, Zaid said the court had already struck down Section 9(5) of the PAA for being unconstitutional. 

“The decision of the Court of Appeal in this case still stands and has not been overturned by a higher court. 

“In 2015, another Court of Appeal bench in PP v Yuneswaran gave an opinion that Section 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 decision in Nik Nazmi’s case.  

“This has never happened, and the decision remains valid and enforceable until now,” he said.

The human rights activist said this has serious ramifications for purported police investigations into “breaches” of the PAA as the current investigation is unlawful as it is based on a section of the PAA that has already been struck down by the courts. 

Zaid also reminded the government that it must not allow police to run rampant by instituting illegal investigations. 

“We do not live in a police state; they cannot enforce what is not law. The fact that the government has remained silent is an endorsement of extra-legal acts by the police. 

“It is also 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. 

“All pending investigations or prosecutions under the PAA since 2014 must be suspended, and the matter referred for disposal to the AG. 

“Our Constitutional and legal rights must be protected, and its violation, especially by enforcement authorities, must never be tolerated,” Zaid added. – September 18, 2023.