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Latest COA ruling on PAA brings confusion to law

What is law? Simply put, law is a manifestation of acceptable social norms with sanction for non-compliance.

And because there is sanction or penalty embedded within, it is imperative one must be able to know whether he or she has committed an offence or performed an illegal act at the time of his action. Hence, it is a cardinal principle of jurisprudence that there must be certainty of law.

This is right and fair since just as one cannot plead ignorance of law as defence, one should not be punished for an act when at the time of performance it is perfectly legal. Hence law must be clear to all.

For example, everyone knows speeding above the statutory limit is an offence. That is clear and the courts have given effect to that. But what if the law is unclear? This would lead to confusion and unexpected consequences.

Earlier this month, on Oct 2, the Court of Appeal led by the President of Court of Appeal, Raus Sharif, in the case of PP vs Yuneswaran Ramaraj unanimously ruled that Section 9(5) of the Peaceful Assembly Act 2012 is consistent with Article 10(1)(b) of the federal constitution, thus rendering the need for any organiser to give a 10 day notice to the police prior to the date of assembly.

This decision is in direct contrast to an earlier Court of Appeal decision in Nik Nazmi vs PP, pronounced on April 25, 2014 which ruled that Section 9(5) of the Peaceful Assembly Act 2012 is unconstitutional.

Interestingly, in not following an earlier similar court decision, it is regrettable the bench in Yuneswaran’s case has not seeks to distinguish the said case but merely choose to ‘depart’ from the Nik Nazmi decision. This implied there are no factual or legal issue differences between the two cases.

Now we are left with two conflicting Court of Appeal decisions which have great bearing on our constitutional right on freedom of assembly. Both are good law and lower court judges are free to rely on either decision. This has inevitably created an unwelcome situation where judges themselves are scratching their heads on which decision to follow.

When the law is uncertain and confusing, the victims are the people. Judicial decision should be consistent unless there are major factual or legal differences. Inconsistency also affects public perception of the judiciary. Already many are questioning why similar court, similar facts but totally different decision in the end.

The only way to resolve this legal conundrum now is for the Federal Court to decide on this matter once and for all. But because all Peaceful Assembly Act cases originated from Sessions Court, meaning the Court of Appeal is the final appeal court; the only mechanism left to bring this issue for Federal Court consideration is through Section 84 of the Court of Judicature Act 1964 which allow the High Court judge to refer a constitutional question to the Federal Court.

Until that day arrives, just exactly where our constitutional rights end, your guess is as good as mine.


JIMMY PUAH WEE TSE is Johor PKR deputy chairperson-cum-state assemblyperson for Bukit Batu.

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