The Federal Court in Putrajaya has dismissed a referral application by the prosecution concerning four constitutional questions to determine the legality of the Peaceful Assembly Act 2012.

This follows a five-member bench's decision to allow a preliminary objection raised by lawyer Gopal Sri Ram, who is acting for Johor PKR executive secretary R Yuneswaran.

This was the second bid by the prosecution to overturn last year’s landmark decision by the Court of Appeal, in a panel led by Justice Mohd Hishamudin Mohd Yunus, that declared Section 9(5) of the Peaceful Assembly Act requiring organisers to give 10 days' notice before an assembly is declared unconstitutional.

The prosecution is appealing the Court of Appeal decision involving the Seri Setia assemblyperson in the Federal Court, for which the judgment is still pending. Yuneswaran’s case is the other.

He was fined RM6,000 by a sessions court in Johor Bharu  for breaching the Peaceful Assembly Act with his involvement in the Black 505 rally in 2013.

However, Johor PKR executive secretary ( left ) was granted a discharge when he appealed against the decision in the High Court.

The High Court ruled that it is bound by a Court of Appeal decision that declared Section 9(5) of the Peaceful Assembly Act 2012 unconstitutional.

Chief Justice Arifin Zakaria, who led the five-member bench today, said the prosecution should have made the application at the High Court and not through the Court of Appeal.

"“We are unanimous in the decision that we do not have jurisdiction to hear the matter. Hence, the case is remitted back to the Court of Appeal for its appeal to be heard," said Justice Arifin.

The prosecution posed the constitutional question as a means of challenging the Court of Appeal ruling on Section 9(5) of the PAA.

Incidentally, Court of Appeal president Md Raus Sharif ( right ), the No 2 in the judiciary, led the three-member bench that all‎owed the questions to be referred to the Federal Court in the first place.

The other four judges on the Federal Court panel are Chief Judge of Sabah and Sarawak‎ Justice Richard Malanjum and Federal Court judges Justices Suriyadi Halim Omar, Ahmad Ma'arop and Ramly Ali.

Normally, constitutional questions posed from the lower court, such as the megistrate's and sessions  courts, would have to be framed in the High Court, which would then decide on whether the matter should be referred to the apex court. This cannot be done through the Court of Appeal.

'Not so Peaceful Assembly Act'

At the start of proceedings, Justice Arifin quipped that this case is about a "not so‎ Peaceful Assembly Act", possibly in reference to the protests held the past few weeks following Opposition Leader Anwar Ibrahim's court verdict.

Justice Arifin wrote the unanimous judgment in Anwar's Sodomy II case, where the politician was convicted and is now serving his five-year jail sentence at the Sungei  Buloh Prison.

This led to Sri Ram, a former Federal Court judge who also appeared for Anwar in that case,

quipping back to the five-member panel sitting that his client, Yuneswaran, was charged under the “Not so peaceful PAA” and was fined RM6,000 by a sessions court in Johor Bahru.

In stating the facts, Sri Ram said Yuneswaran was found guilty and fined RM6,000 by the

sessions court on Sept 26, 2013, and that he Johor PKR executive secretary filed a notice of

appeal the next day.

On Aug 3, last year, the prosecution filed an application with the High Court in to Johor Bahru for constitutional questions to be heard.

However, the court on Aug 24, allowed Yuneswaran's appeal and dismissed the prosecution's application on the constitutional questions.

While the prosecution appealed against the acquittal, it did not appeal on the dismissal of the

constitutional questions. At the appellate court, the prosecution made an oral motion that the

constitutional questions should be allowed to be referred to the appellate court.

The appellate court agreed to this on Oct 10, resulting in this application today, which Sri Ram

objected to, arguing on the issue of jurisdiction as the matter originated in the sessions court.

He said the apex court could not hear the matter on grounds that Section 87 of the Courts of Judicature Act stipulates the Federal Court has jurisdiction to hear and determine any appeal from any decision of the Court of Appeal, if the criminal matter was decided on its original  constitution.

“On this point alone, on not having any written motion, the prosecution's submission should fail,” Sri Ram said.

Four questions raised

DPP Manoj Kurup, who heads the Trials and Appeals Division of the Attorney-General’s Chambers, told the court that since the appellate court allowed the matter, it should be heard.

Four questions were then raised:

  • Whether the 10-day requirement to give notice under Section 9(1) of the PAA is a restriction within the meaning of Article 10 (2) (b) of the Federal Constitution (on freedom of assembly);

 

  • If the answer to the above question is affirmative, whether, on the true construction of Article 10 (2) (b), there is a further requirement that such “restriction” should also be a “reasonable” restriction;

    •  

  • If the answer to the first question is in the negative, whether the imposition of criminal sanction under Section 9 (5) of the PAA 2012 for the breach of the requirement to give notice is ultra vires of Article 10 (2) (b); and

    •  

  • If the answer to question (2) above is in the affirmative whether the criminal sanction imposed under Section 9(5) for a breach of requirement to give notice under Section 9(1) amounts to a “reasonable restriction” within the law.

    •  

    Besides Sri Ram, lawyers R Sivarasa, Hassan Abdul Karim and Shahid Adli Kamaruddin appeared for Yuneswaran while DPP Wan Shaharuddin Wan Laden appeared for the prosecution.