After 12 years, five former university students, who participated in an anti-Internal Security Act (ISA) rally, failed in their attempt to declare Section 27(5) of the Police Act as unconstitutional and overturn their conviction.

ISA 7 students name chart Last year, that particular section of the Police Act had been repealed and was replaced with the controversial Peaceful Assembly Act 2012.

In a majority decision, a three-member Court of Appeal bench led by Justice Apandi Ali had ruled this morning that it was still a "live issue and not academic" despite the repeal.

Justice Apandi said apart from security concerns about such assemblies, taxpayers monies literally go up in smoke for clearing the debris and after-effects of the assemblies, not to mention possible  casualties.

“How can we (the court) relegate the burning issue of the right to peaceful assembly against

the dire threat of national security and public order to the back burner before it has been thoroughly analysed, reviewed and burnt itself out,” he asked

“Dozens of assemblies continue to be held in the city and in other parts of the country and hence the security concerns...” he posited.

He ruled that there was no merit in the appeal.

Justice Apandi, in upholding the RM3,900 fine on the students, said the section was neither unconstitutional as in law the authorities could impose restrictions.

ISA 7 student acquited 220405 bothred “It does not restrict the right to peaceful assembly nor is it in conflict or inconsistent with the provision of Article 10(1)(b) (peaceful assembly) of the federal constitution as the authorities can impose provisions in the larger interest of maintaining law and order,” he said.

"The appeal is dismissed and the Kuala Lumpur High Court judgment is affirmed," he added.

Justice Apandi's judgment was supported by Justice Linton Albert. However, Justice Hamid Sultan Abu Backer dissented.

Section 27 (5) unconstitutional

Justice Hamid, in allowing the appeal, said he would answer the unconstitutionality of Section 27 (5) in the affirmative as freedom of speech, assembly and association forms part and parcel of fundamental guarantees enshrined in the constitution.

“It must be stated that restriction cannot amount to prohibition, as decided by case laws in this area of jurisprudence. The word restriction has now an extended meaning given by case laws to mean reasonable restrictions as promulgated by the Federal Court.”

“In essence the right to assemble peacefully is a guaranteed right in the constitution and there cannot be penal sanction legislated when citizens assemble peacefully without committing offences under the Penal Code,” he ruled in quashing the conviction not only on the two appellants but extended to all.

He further ordered that the fine be refunded, but noted the majority judgment of the court.

Initially, seven students were charged with violating Section 27 (5) (a) of Police Act that carries a fine of between RM2,000 and RM10,000 or a jail term not exceeding one year upon conviction.

NONE However, one of them was acquitted.

Today, two of them - Zulkefle Idris and Rafzan Ali ( left ) - proceeded with the appeal at the appellate court.

It was reported that Zulkefle and Rafzan, along with Nik Norhafizi Nik Ibrahim, Ahmad Kamal Abdul Hamid,  and Khairul Amal Mahmud, all formerly from local universities, were charged with participating in an illegal anti-ISA rally at the national mosque in 2001.

All of them, who are in their 30s, had been expelled from the public universities as a result of their participation.

The magistrate’s court initially acquitted all of them. However, on the prosecution’s appeal, the Kuala Lumpur High Court ordered them to enter their defence, which led them to be convicted of the offence.

Their conviction were upheld by the High Court in 2011. 

The students were represented by a team of lawyers led by Edmund Bon while DPP Yusaini Amer Abdul Karim appeared for the prosecution.