Basic rights have penal sanctions, says court in judgment against PKR man

The Court of Appeal says basic rights such as holding a peaceful assembly are accompanied by penal sanctions such as those spelt out in the Sedition Act and Societies Act. – The Malaysian Insider file pic, October 4, 2015.

A three-man bench, which last week allowed the government's appeal and declared it legal to punish peaceful rally organisers for not giving a 10-day notice to the police, said the decision was based on the Federal Constitution.

They said the constitution allows for punishment against organisers who fail to comply with the 10-day notice requirement before holding a peaceful assembly because other basic rights are also accompanied by penal sanctions.

In their joint written grounds, Court of Appeal judges Tan Sri Raus Sharif, Datuk Mohd Zawawi Salleh and Datuk Zamani A. Rahim cited several examples, including the Sedition Act 1948 which restricts freedom of speech, and which is backed by criminal sanctions.

"Yet the Sedition Act has repeatedly and constantly been held by our courts to be constitutional," they said in a 41-page judgment published on the judiciary's website.

Similarly, they said the right to form associations was restricted by the Societies Act 1966 which, among others, provides that any person who is a member of an unlawful society or attends a meeting of an unlawful society could be jailed, fined or both.

Another example, the judges said, were restrictions to movement under Article 9.

Under Section 66 of the Immigration Act, with certain exceptions, a non-Sabahan or Sarawakian shall not be entitled to enter Sabah and Sarawak without having obtained a permit from the relevant state authority, they said.

"We are of the firm opinion that section 9(5) of the Peaceful Assembly Act (PAA) 2012 does not run foul of Article 10(2)(b) of the Federal Constitution.

"Section 9(5) is entirely constitutional, valid and enforceable," the judges said of their unanimous ruling on October 1 in allowing the government's appeal against the acquittal of Johor PKR executive secretary R. Yuneswaran for unlawfully organising a “Blackout 505” rally in 2013.

Under Section 9(5) of PAA, a rally organiser was liable to a maximum RM10,000 fine for failure to give police the 10-day notice.

Yuneswaran, 28, was fined RM6,000 by the Johor Baru Sessions Court on September 26, 2013, which found him, as the rally organiser, guilty of failing to give the notice of the event to the police.

On August 24 last year, however, he was acquitted by the Johor Baru High Court, which ruled that it was bound by the April 25, 2014 Court of Appeal decision that declared Section 9 (5) unconstitutional.

In that decision, the appellate court, in acquitting PKR's Nik Nazmi Nik Ahmad of organising a rally, ruled that the section, which criminalises anyone for organising a peaceful rally without giving 10-day notice to the authorities, is unconstitutional.

The judges said Parliament was empowered under the constitution to legislate laws on internal security, which includes public order.

They said as such the bench had to depart from a previous Court of Appeal ruling declaring Section 9(5) as unconstitutional.

- TMI