PUTRAJAYA, April 25 ― The Court of Appeal today unanimously ruled it unconstitutional to criminalise spontaneous public assemblies in breach of the 10-day notice required under the Peaceful Assembly Act (PAA) 2012.

The three-member panel, chaired by Justice Datuk Mohamad Arif Md Yusof, decided that while the notice requirement under section 9 (1) of the law passed the constitutional test, section 9 (5) ― which imposes a maximum RM10,000 fine for non-compliance ― ran counter to the Federal Constitution and must be struck out.

Mohamad Arif said section 9 (5) of the Act presents “some conceptual difficulty” as it considers peaceful assemblies lawful regardless of compliance with the notice.

“That which is fundamentally lawful cannot be criminalised,” he said when reading out a section of his judgement.

With the ruling, the court also acquitted Selangor deputy Speaker Nik Nazmi Nik Ahmad of a charge under the PAA.

Justice Datuk Mah Weng Kwai noted that section 9 (5) of the Act was inconsistent with the public's right to freedom of assembly as enshrined under the Federal Constitution, as it deprived certain sections of society access to such rights.

He stressed that while the general public need not worry about being punished under the Act for taking part in a spontaneous assembly, the same could not be said for the organisers.

“We must not forget, the organisers are also members of the public and are fully entitled to the freedoms that are afforded by the Federal Constitution,” he said when delivering his judgment.

Justiec Datuk Hamid Sultan Abu Backer said, when reading out his judgment, that informing the police of a planned assembly should be a case of “social responsibility” instead of a matter of compulsion.

He rebuffed the argument for maintaining public order or security in imposing a fine for non-compliance with the notice requirement, adding that such issues have nothing to do with peaceful assemblies.

“Criminalising assemblies have no nexus to public order, unless it is not peaceful,” he said.

Nik Nazmi's lead counsel, N. Surendran, said the unanimous judgment was significant as it was the first time that the right to freedom of assembly had been “given full effect”.

“This is the moment Malaysians are finally allowed to freely assemble without the requirement of permits or being penalised for not notifying (the police),” he said when met outside the courtroom.

Fellow counsel Eric Paulsen noted that the judgment carries “huge repercussions” on the whole slew of similar cases under the PAA.

“There have been numerous charges and a few convictions and a few cases where some persons pleaded guilty also... certainly we will write in to cases we are handling and demand that they were merely exercising their right to freedom of assembly that they are not only discharged but acquitted,” he said.

The PAA was introduced in 2011 as part of Putrajaya’s pledge to afford Malaysians greater civil liberties, but has been criticised as more restrictive than the section of the Police Act that it replaced.

* A previous edition of the story contained an error on Justice Mah Weng Kwai's name which has since been corrected.