Ipoh Timur MP Thomas Su has filed an application in the Sessions Court to have Section 9(1) and Section 9(5) of the Peaceful Assembly Act 2012 (PAA) to be declared as unconstitutional.

Su filed the application through his lawyer M Kulasegaran, for the matter to be brought before the court in Ipoh, and for it to be referred to the Federal Court for the hearing.

Kulasegaran said Su was charged, last Oct 14, with failure to submit the 10-day notice, as required under the PAA, to the Ipoh district police chief prior to a rally held at 7.30pm on May 9, 2013, at Dewan Wisma Chin Woo in Ipoh.

The charge is under Section 9 (1) of the PAA, which is punishable under Section 9 (5) of the Act.

Kulasegaran, who is also Ipoh Barat MP, pointed out in a statement today that the maximum fine under this section, RM10,000, would result in Su being disqualified as an MP if he is convicted.

Su's case came up today before Ipoh Sessions Court judge Norashima Khalid, where Kulasegaran informed the court and the prosecutor of the application filed in the High Court.

“We have filed an application, pursuant to Section 30 of the Courts of Judicature Act 1964, to refer the constitutionality of these two sections in the High Court, and subsequently transferred to the Federal Court, pursuant to Section 84 of the Courts of Judicature Act 1964,” he said.

“This is to declare Sections 9 (1) and 9 (5) to be declared null and void.”

Kulasegaran said there have been two conflicting decisions from the Court of Appeal, namely the Nik Nazmi Nik Ahmad case (2014) and R Yuneswaran's case in 2015.

In the Nik Nazmi case, the Court of Appeal held that the particular sections were unconstitutional while in the latter case, the bench held that these sections of the law were constitutional.

Lawyers have questioned the decision in the Yuneswaran's case, which has brought confusion to the PAA. Yuneswaran's decision was presided by then Court of Appeal president Justice Md Raus Sharif, who is now the chief justice.

Kulasegaran said the Malaysian government had pledged to the United Nations Human Rights Council to uphold freedom of assembly but in reality, it does not adhere with it.

DPP Muhammad Fauzi Md Yusof appeared for the prosecution.

After the application was filed, Kulasegaran said the case has been adjourned for the prosecutor to file the necessary affidavit-in-reply.

Besides Kulasegaran, Su was represented by lawyers N Selvam, P Kala Malar and A Vemal.

Su was initially charged in 2013, and subsequently the prosecution withdrew the charge, and then Su was re-charged again, with the same offence.