The Federal Court has missed a "golden opportunity" to uphold the people's right to assemble ahead of Bersih 5 rally on Nov 19, said a PKR lawmaker.

Alor Setar MP Gooi Hsiao Leung expressed regret that the Federal Court on Oct 10 did not make a ruling on the application to determine whether the Peaceful Assembly Act (PAA) which criminalises street protest is a violation of an individual's constitutional right to assemble peacefully as guaranteed under Article 10(1)(b) of the Federal Constitution.

As it stands, PAA failed to distinguish between a peaceful march for a lawful and legitimate purpose as opposed to an unlawful one, he told Malaysiakini.

Under the Act all street protests per se, whether it is peaceful or not, whether it is for a lawful purpose or not, are deemed illegal and criminal under Section 4(2)(c), added Gooi, who is also a lawyer.

"This means that lawyers marching for independence of the judiciary for example, even though it is for a legitimate purpose, are committing an offence and can be charged under the Act.

"Section 4(2)(c) which criminalises street protests, without any qualifications, amounts to a total removal of our constitutional right to assemble peacefully," he added.

"In effect, Section 4(2)(c) totally deprives one's right to participate in a peaceful assembly and renders the entire right to assemble under the constitution meaningless and illusory," he added.

Gooi was referring to Monday's decision by the apex court on a landmark challenge on constitutionality of street protests brought by seven activists and politicians on the Kita Lawan and Bersih 4 rallies.

Chief Justice Ariffin Zakaria, who led a five-member bench, declined to answer an “academic question”, saying instead he wanted the court to establish first the fact that the applicants indeed took part in the street protests.

The applicants were DAP lawmakers Chong Chieng Jen and Julian Tan, PKR lawmaker Sim Tze Tsin, Bersih chairperson Maria Chin Abdullah and activists Fariz Musa, Mandeep Singh and Adam Adli Abdul Halim.

Gooi said the freedom of peaceful assembly is "essential" to any functioning democratic society.

"This is more so now when we as a nation, are faced with a multitude of scandals, from 1MDB's stolen billions, corruption, abuse of power, to gerrymandering of our electoral process by the Election Commission," he said.

Gooi noted that the Act purports to promote freedom of assembly as it is spelt out in its objectives under Section 2.

But on the other hand, the government takes away that right by making it an offence to participate in moving assemblies, which is defined under the Act as a street protest.

"All assemblies invariably involve street marches, walks and processions to a specific location, otherwise how do we get there, swim?" Gooi asked.

"It is most regrettable that the Federal Court has declined to answer such an important constitutional point which affects every citizen's fundamental right of assemble peacefully, more so when Bersih 5 is scheduled to take place in one month's time," he added.

Gooi pointed out that under the current climate, a ruling by the Federal Court to uphold the freedom of assembly would have put an end to growing threats issued by those opposed to Bersih to disrupt and oppose the November rally.

Gooi, Ramkarpal Singh and Ariana Ong represented Maria, Sim, and Fariz, lawyers Gobind Singh Deo, Chong Siew Chiang and Tan Kee Heng represented Chieng Jen and Tan, while N Surendran and Latheefa Koya acted on behalf of Adam and Fariz.

They were charged under the PAA in the Kuala Lumpur Magistrate's Court for participating in a street protest dubbed "Kitalawan" (Wefight) on March 28, last year.