Lawyers for Liberty (LFL) refer to reports in which up to 25 persons involved in the “Save Malaysia” rally on 16 September have been summoned for police questioning.
This comes after Kuala Lumpur police chief Allaudeen Abdul Majid’s statement on Saturday that the rally was unlawful as it allegedly did not comply with the Peaceful Assembly Act 2012 (PAA).
Firstly, for the police to declare the assembly unlawful for failure to give adequate notice not only goes beyond the ambit of the PAA, but also violates the Constitution. Even if there was a breach of the PAA as alleged, this in of itself does not allow the police to declare an assembly unlawful. The right to assemble peacefully is a constitutional guarantee enshrined in Article 10(1)(b) of the Federal Constitution. It is thus unlawful for the police to make such declarations.
Secondly, the ongoing investigations for the alleged failure to give proper notice of the assembly are without any legal basis. Such an investigation would be for an offence under Section 9(5) of the PAA, which states that failure to give notice would make one liable to a fine not exceeding ten thousand ringgit.
However, the Court of Appeal had already struck down Section 9(5) of the PAA for being unconstitutional in the case of Nik Nazmi bin Nik Ahmad v Public Prosecutor in 2014. The decision of the Court of Appeal in this case still stands and has not been overturned by a higher court.
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In 2015 another Court of Appeal bench in PP v Yuneswaran gave an opinion that Section 9(5) is constitutional and disagreed with the Nik Nazmi decision. However, the 2015 court could not overrule the earlier decision as both courts are of the same level. Only the Federal Court, which is a higher court, could have overruled the Nik Nazmi decision. This has never happened, and the decision remains valid and enforceable until now.
This has serious ramifications for purported police investigations into “breaches” of the PAA. This means that the current investigation has no basis in law and is hence unlawful as it is based on a section of the PAA that has already been struck down by the courts.
The government must not allow the police to run rampant by instituting unlawful investigations. We do not live in a police state; they cannot enforce what is not law. The fact that the government has remained silent is endorsement of extra-legal acts by the police. It is also shocking that the Attorney General’s Chambers has allowed these types of investigations and prosecutions to be carried out despite the court’s decision in 2014.
As such, the police must immediately halt any and all illegal investigations under Section 9(5) of the PAA. Further, all pending investigations or prosecutions under the PAA since 2014 must also be suspended, and the matter referred for disposal to the attorney general.
Our constitutional and legal rights must be protected, and its violation, especially by enforcement authorities must never be tolerated. – LFL
Zaid Malek is director of Lawyers for Liberty