Human rights defenders welcomed the Court of Appeal’s landmark decision which ruled Section 9(5) of the Peaceful Assembly Act 2012 (PAA), punishing citizens who do not give 10 days' notice before they hold an assembly, to be unconstitutional, but cautioned that there were still some more kinks to be ironed out.

Lawyers for Liberty executive director Eric Paulsen said that given the Court of Appeal’s decision, those previously charged in lower courts over the Black505 rally and other post-election rallies should now be discharged and acquitted.

“It’s an absolute victory - all of us are overjoyed,” Paulsen told Malaysiakini by phone.

He added that the victory - won by PKR lawyer N Surendran, Latheefa Koya and Syahredzan Johan-  at the Court of Appeal today should be dedicated to the late Karpal Singh, who steadfastly defended the rights of the people under the federal constitution.

“This is the first time that the court has reaffirmed that all Malaysians have a right to assemble peacefully. Other cases in Sessions Courts, and the whole country, all those accused should also now be discharged and acquitted,” he said.

Paulsen and other lawyers had last month defended PKR director of strategy and Pandan MP Rafizi Ramli, DAP’s Seremban MP Anthony Loke Siew Fook, PAS’ Batu Burok assemblyperson Syed Azman Ahmad Nawawi and PKR employee Muhammad Adib Ishar, who were charged with violating the PAA.

Dangi Wangi district police chief ACP Zainuddin Ahmad testified then the police did not “approve” the last Black505 rally in Padang Merbok on June 22 last year as the police had received an incomplete notice from the organisers, and they did not have permission from the venue’s owner. Despite that, the police turned up to regulate the assembly.

Paulsen said defenders of such cases can now appeal to the judges as the latest ruling means that the police cannot pre-empt or charge organisers of a peaceful assembly.

“As long as it is done peacefully, the police cannot criminalise them. Of course, if they commit a crime, the courts can still mete out punishment under the respective acts,” Paulsen said.

Although the issue of venue is not directly addressed, Paulsen said he had a stronger case as lawyers have argued that Padang Merbok was not owned but only controlled by Kuala Lumpur City Hall (DBKL).

Bar Council chief lauds decision

Bar Council president Christopher Leong said the Malaysian Bar welcomed the decision by the Court of Appeal today that Section 9 (5) of the Peaceful Assembly Act is unconstitutional.

“We agree that Section 9(1) of PAA is constitutional and commend the Court of Appeal bench for their judgment and writing their own separate judgments on this important issue.

“This must be commended as it is always important, particularly for constitutional issues, that each member of the bench should fully address their own minds to the issue and have their own articulation as to the reasoning for their decisions. We look forward to reading the full text of their written decisions,” he said.

The Malaysian Bar, Leong ( left ) said, has always maintained the position that Article 10 of the federal constitution, which guarantees the rights of peaceful assembly and expression, includes protests whether at a fixed or designated place or by way of a procession.

“The proviso in Article 10(2)(b) cannot be construed or applied to defeat these fundamental rights. The proviso only allows the authorities to impose such restrictions as are necessary or expedient in the interests of national security or public order.”

He added that restrictions are only permitted if there are no alternatives and must be justifiable in exceptional circumstances and the authorities can impose measures to facilitate peaceful assemblies, but not restrictions.

‘Still the need to practice caution’

Co-chairperson of the Bar Council’s human rights committee Andrew Khoo, however, said assembly organisers still need to practice caution.

“We welcome the decision but I will not break out the champagne yet,” Khoo ( right ) told Malaysiakini .

Khoo added that the PAA, as it stands, still allows the police to impose many unreasonable terms and conditions which can prevent peaceful protest.

These include by-laws on who can or cannot participate in a rally, what you can bring and where you can have a peaceful assembly. For example, the law states that the assembly must not be within 50 metres of a wholes series of buildings and structures, he added.

“By setting onerous conditions, they can still make it almost impossible to hold peaceful assemblies... this can easily nullify that right (handed down today by the court),” Khoo said.

He cited that the recent police rejection of May 1 anti-GST rally organisers was an example of how the police can still exercise some discretionary powers under the PAA.

Dang Wangi police chief Zainuddin Ahmad said earlier this week that the police received an application but it had to be rejected it as the rally failed to meet conditions under Section 9(1) of the Peaceful Assembly Act as approval from the owners of Dataran Merdeka had not been obtained.

“Two weekends ago, the side of the road next to Dataran Merdeka was used for a public event. What is the problem?” Khoo asked.

Meanwhile, the Attorney-General’s Chambers may still appeal the Court of Appeal’s decision to the Federal Court, the lawyers said.

Khoo said that he expects that the attorney-general will most likely do this, although Paulsen emphasised that the ruling, handed down by three judges today, was “a strong one”.