I welcome the decision by the Federal Court this morning that Secion 9(5) of the Peaceful Assembly Act (PAA) is unconstitutional.
The decision today provides clarity after two conflicting Court of Appeal decisions on Section 9(5) of the PAA in Nik Nazmi Nik Ahmad v PP and PP v R Yuneswaran in 2014 and 2015.
I was one of the lawyers on record for Nik Nazmi’s case in 2014 when we argued and succeeded at the Court of Appeal. The Court of Appeal then held that Section 9(5) PAA was unconstitutional as it was ultra vires Art 10 of the Federal Constitution.
However, a few months later a different Court of Appeal panel decided differently and found that 9(5) was constitutional in the PP v R Yuneswaran.
Thus we had two conflicting Court of Appeal decisions on the constitutionality of Section 9(5) PAA and until today’s decision, there was no conclusive determination by the Federal Court on this issue.
Earlier this year, the Government through the announcement by Prime Minister Datuk Seri Anwar Ibrahim had stated that the Peaceful Assembly Act will be amended, and at the time, he stated that the amendment would be tabled at the next sitting (this month).
With the decision by the Federal Court, the Government should also take cue from the grounds of judgment and explore amendments to make sure that the law is in line with constitutional principles when it comes to providing notice to the authorities.
Additionally, all pending investigations into non-notification of assemblies under Section 9(5) should be dropped immediately, and the Public Prosecutor should also withdraw all pending charges in Court to any persons under the particular section.
A law which is unconstitutional should not be enforced by any branch or arm of the State.
