There is sufficient legislation in the Commonwealth requiring organisers to give authorities notice of a peaceful assembly with failure to do so punishable under United Kingdom’s Public Order Act 1986.

This is one of nine grounds of appeal by the prosecution and the Attorney-General’s Chambers over the acquittal of Selangor deputy speaker Nik Nazmi Nik Ahmad on a charge for not giving the required 10-day notice as stipulated under the Peaceful Assembly Act 2012 (PAA).

This follows the prosecution's filing of a petition of appeal to the Federal Court stating the grounds on Friday.

The petition was filed by deputy public prosecutor Manoj Kurup ( right ). A copy of the petition was made available to Malaysiakini .

The landmark April 25 judgment had resulted in Section 9(5) of the Act, that criminalises the failure to give notice of an intended assembly, to be unanimously declared unconstitutional by a three-member bench of the Court of Appeal.

However, among the other grounds of appeal submitted by the prosecution include:

  • The judges were wrong to declare Section 9(5) as unconstitutional against freedom of assembly stated in the constitution, as there are other legislation that limit other rights such as Sedition Act and the Penal Code;

 

  • The judges acted wrong in law. With regards to Section 17A of the Interpretation Act 1948/1967, the purpose of a notice is to facilitate a peaceful assembly, for the authorities to ensure the assembly goes well, ensuring other rights are not violated, and to ensure there is an organiser of such rally and hence, the punishment for failure to give a notice was reasonable;

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  • The judges were wrong to declare Section 9(5) as unconstitutional as they declared Section 9(1) of the Act to be valid. This would result in Parliament having legislated Section 9(1) in vain for not according a punishment;

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  • The judges failed to appreciate that Section 9(1) and 9(5) are procedural and does not impact the right to peaceful assembly and it unlike Section 27 of the Police Act, that had been repealed;

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  • The judges were wrong to compare the said section with Section 6 and 7 regarding the responsibilities of the organisers and participants, which do not accord any punishment, where else the punishment is stated in the Penal Code. Meanwhile, under Section 9(1) the punishment is only stated in Section 9 (5);

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  • The judges acted wrong in law that it must be proven that an assembly is unruly, while no such precondition was set in sub-Section 9(5) and hence, the court also acted wrong in law and facts in determining the Kelana Jaya rally was indeed peaceful whereelse there were no evidence to adduce so;

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  • The judges had applied the wrong test of interpreting sub-Section 9(5) where restrictions can be decided by the Parliament and not the judiciary; and

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  • The judges acted wrongly by asserting the word “reasonable” with the word restrictions under Article 10(2)(b) in the rights of peaceful assembly under the federal constitution as the word did exist in the original draft but was taken out following protest.

    • Hence, the word “reasonable” which is in conflict with the needs of the constitution.

     

    Appeal postponed

    Yesterday, the Federal Court allowed the defence’s request for the prosecution's appeal, initially slated to be heard on May 27, to be postponed indefinitely.

    This follows Nik Nazmi's lawyers N Surendran ( right in picture ) and Latheefa Koya ( centre ) had written in to the Chief Justice Arifin Zakaria that they had yet to obtain the petition for them to prepare the counter-argument.

    The lawyers are ordered to file the submissions by June 3, after which the Federal Court will then fix a hearing date to hear the prosecution's appeal.

    It was reported that the Court of Appeal decision had resulted in a several other opposition leaders and leaders of non-governmental organisations, charged under Section 9(1) of the PAA being grated a discharge in Ipoh and Kuala Lumpur.