I REFER to your report “Peaceful street rallies legal, says lawyers group”.

Lawyers for Liberty (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. 

Zaid said the ongoing investigations over the alleged failure to give proper notice of the assembly were without legal basis. Such an investigation would be for an offence under section 9(5) of the Peaceful Assembly Act 2012 (PAA), which states that failure to give notice would make one liable to a fine not exceeding RM10,000.

Zaid contended that the Court of Appeal had already struck down section 9(5) of the PAA for being unconstitutional in the case of Nik Nazmi bin Nik Ahmad v PP in 2014. According to Zaid, the decision of the Court of Appeal in this case still stands and has not been overturned by a higher court.

The LFL director referred to another decision of the Court of Appeal in PP v Yuneswaran in 2015 which, according to him, gave the opinion that section 9(5) is constitutional and disagreed with the Nik Nazmi decision.

Zaid contended that the decision in Yuneswaran 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. This has not happened, and therefore the decision Nik Nazmi remains valid and enforceable until now.

The two conflicting Court of Appeal decisions were referred to, and considered by, the High Court in Maria Chin bt Abdullah lwn Pendakwa Raya in 2016. In this case the applicant, the Bersih 2.0 chairman had organised the Bersih 4 rallies in Kuala Lumpur, Kuching and Kota Kinabalu on August 28 and 30, 2015. Tthe police were informed of Bersih 2.0 via a letter dated August 10, which was addressed to the inspector-general of police. On November 3 the applicant was charged at the Sessions Court under section 9(1) of the PAA, punishable under section 9(5) of the PAA for the offence of organising the assembly in Brickfields without notifying the district police 10 days (as it was required then) before the assembly was carried out.

Pending trial, the applicant filed an application to the High Court to strike out the prosecution and charge against her on the grounds that section 9(5) of the PAA was illegal, void and unconstitutional.

The issues to be determined by the High Court were whether:

1. The prosecution and the charge against the applicant could be carried out by virtue of the provisions of the law;

2. The prosecution and the charges against the applicant under section 9(1) of the PAA and punishable under section 9(5) of the PAA were in contravention with Articles 7(1) and 10(2)(b) of the Federal Constitution.

Judicial commissioner Mohamad Shariff ruled that since there were two contrasting Court of Appeal decisions on the same issue relating to section 9(5) of the PAA and based on the principle of stare decisis and the doctrine of judicial precedent, the decision of the Court of Appeal in Yuneswaran prevailed over the earlier decision in Nik Nazmi.

The learned judge referred to the Federal Court decision in Dalip Bhagwan Singh v Public Prosecutor in 1998 which said that if the Federal Court were to depart from its previous decision when it was right to do so, “then also by necessary implication, its decision [to depart] represents the present state of law. When two decisions of the Federal Court conflict on a point of law, the later decision therefore, for the same reasons, prevails over the earlier decision.”

Delivering his judgment in BM, the judge said:

“Mahkamah ini mengambil pendekatan bahawa keputusan Mahkamah Rayuan dalam kes Yuneswaran merupakan kedudukan terkini undang-undang berkaitan seksyen 9(5) Akta Perhimpunan Aman 2012 dan berkuatkuasa sepenuhnya…. Keputusan dalam kes Yuneswaran tersebut mengikat mahkamah yang mulia ini dan mahkamah tidak seharusnya memilih kes Nik Nazmi sebagai autoriti yang sah berpandukan prinsip stare decisis dalam kes Dalip Singh.”

It must be noted that there is always a presumption in favour of constitutionality of statutes. The court can declare a statute to be an invalid piece of legislation but the burden is upon a person who attacks it to show that there has been a clear transgression of the constitutional principles.

The Court of Appeal in Yuneswaran’s case held that it is only when there is a clear violation of a constitutional provision beyond reasonable doubt that the court should declare a provision to be unconstitutional. (See also the Court of Appeal decision in Pua Kiam Wee v Ketua Pengarah Imigresen Malaysia & Anor in 2017) – September 19, 2023.

* Hafiz Hassan reads The Malaysian Insight.