The Court of Appeal has ruled that the enforcement of the requirement to give a 10-day notice to the police prior to holding a peaceful assembly to be lawful, departing from a previous ruling by the same court.

In a unanimous decision today, the court said Section 9(5) of the Peaceful Assembly Act 2012 (PAA) that criminalises the failure to give the notice to be “constitutional, valid, and enforceable”.

“The imposition of criminal sanction under Section 9(5) of the PAA for the breach of the requirement to give notice is not ultra vires to Article 10(2)(b) of the Federal Constitution...

“Section 9(5) is entirely constitutional, valid, and enforceable,” said Court of Appeal President Md Raus Sharif, who read out the judgment.

Other members of the three-judge panel are Justices Mohd Zawawi Salleh and Zamani A Rahim.

The court also upheld the Johor Bahru Sessions Court decision to fine Johor PKR executive secretary R Yuneswaran RM6,000 for failing to give the notice to the police prior to holding the Blackout 505 rally in Johor, or three months’ imprisonment in default.

Yuneswaran paid his fine at the Palace of Justice in Putrajaya soon after the court adjourned.

On April 25 last year, the Court of Appeal had made a landmark decision that declared Section 9(5) as null and void and unconstitutional.

A three-member panel led by the recently retired judge Mohamad Ariff Md Yusuf ( photo ) had then, in a unanimous decision, struck out the charge against then Selangor state assembly deputy speaker Nik Nazmi Nik Ahmad, who was charged in relation to the Black 505 rally after the 2013 general elections.

The provision imposes a fine of up to RM10,000 to rally organisers if fail to provide the police with a 10-day notice as stipulated under Section 9(1) of the same Act.

By declaring Section 9(5) unconstitutional, the requirement to notify the police under Section 9(1) still stands but is rendered unenforceable because there is no penalty for its breach.

In its ruling today however, the Court of Appeal held that Section 9(5) of the PAA is not a restriction on the freedom to peaceably assemble without arms as guaranteed under Article 10 of the Federal Constitution, because citizens are still able to hold rallies.

It pointed out, among others, that even the more stringent requirements for holding rallies that were used before the PAA’s introduction were also constitutional.

Federal Court has the power to overturn

In addition, the court said that PAA is meant to facilitate the exercise of the right to peaceful assembly, and the notification to the police serves to help the police to regulate and facilitate the rally, and ensure that it does not trump the rights of others.

“(Without sufficient notice) the police would not be able to play their role as facilitators and regulators. Indeed it may not be able to prepare adequately to provide protection to those participating in assemblies.

“This is a recipe for public disorder and runs counter to the purpose of the PAA,” the court ruled.

Meanwhile outside the court later, Yuneswaran’s lawyer Sivarasa Rasiah ( photo ) complained to reporters of the fact that there are now two contradictory Court of Appeal rulings on the constitutionality of Section 9(5) of the PAA.

He said only the Federal Court should have the power to overturn the precedent set in Nik Nazmi’s case, and only the Federal Court should be able to depart from its own previous decisions.

“It is an unsatisfactory state of the law and against the normal judicial conventions, where you have one Court of Appeal basically overruling another Court of Appeal.

“That job should be left to the Federal Court,” he said.

To a question on which ruling would apply in the event a case similar to Yuneswaran’s and Nik Nazmi’s ( photo ) is brought to court, Sivarasa said he does not know the answer.

While noting that Yuneswaran has already exhausted his avenues of appeal, he said he would look for a way to challenge today’s ruling.

Sivarasa also told reporters that today’s judgement did not address the argument raised by the respondents that Section 9(5) would prevent some types of peaceful assemblies from being held, namely spontaneous assemblies, and hence should be declared unconstitutional.

He said that even other countries that require prior notice for holding assemblies also allow for such rallies to be held.