SEPTEMBER 19 — There are two conflicting Court of Appeal decisions on Section 9(5) of the Peaceful Assembly Act 2012 (PAA).

In the case of Nik Nazmi bin Nik Ahmad v Public Prosecutor [2014], the Court of Appeal held that Section 9(5) of the PAA ought to be struck down for being unconstitutional.

Eighteen months later in the case of Public Prosecutor v Yuneswaran a/l Ramaraj [2015], another bench of the Court of Appeal held that the same section does not run afoul of Article 10(2)(b) of the Federal Constitution. Section 9(5) is entirely constitutional, valid and enforceable.

The later Court of Appeal thus departed from the earlier decision.

Both decisions were referred to, and considered by, the High Court in Maria Chin bt Abdullah lwn Pendakwa Raya in 2016. In this case the applicant, the Chairman of Bersih 2.0, had organised Bersih 4 in Kuala Lumpur, Kuching and Kota Kinabalu on August 28 and 30, 2015 respectively.

For the purpose of organising it, the police were informed of Bersih 2.0 via a letter dated August 10 which was addressed to the Inspector General of Police.

On November 3, the applicant was charged at the Sessions Court under Section 9(1) of the PAA, punishable under Section 9(5) of the PAA for the offence of organising the assembly in Brickfields without notifying the district police 10 days (as it was then) before the assembly was carried out.

Pending the trial, the applicant filed an application to the High Court to strike out the prosecution and charges against her on the grounds that Section 9(5) of the PAA was illegal, void and unconstitutional.

The issues to be determined by the High Court were, among others, whether:

(a) the prosecution and the charge against the applicant could be carried out by virtue of the provisions of the law;

(b) the prosecution and the charges against the applicant under Section 9(1) of the PAA and punishable under Section 9(5) of the PAA were in contravention with Articles 7(1) and 10(2)(b) of the Federal Constitution.

Judicial Commissioner Mohamad Shariff ruled that since there were two contrasting Court of Appeal decisions on the same issue relating to Section 9(5) of the PAA and based on the principle of stare decisis and the doctrine of judicial precedent, the decision of the Court of Appeal in Yuneswaran prevailed over the earlier decision in Nik Nazmi.

The learned judge referred to the Federal Court decision in Dalip Bhagwan Singh v Public Prosecutor in 1998 if the Federal Court were to depart from its previous decision when it was right to do so, "then also by necessary implication, its decision [to depart] represents the present state of law. When two decisions of the Federal Court conflict on a point of law, the later decision therefore, for the same reasons, prevails over the earlier decision.” (Emphasis added)

Delivering his judgment in BM, the learned judge said:

"Mahkamah ini mengambil pendekatan bahawa keputusan Mahkamah Rayuan dalam kes Yuneswaran merupakan kedudukan terkini undang-undang berkaitan seksyen 9(5) Akta Perhimpunan Aman 2012 dan berkuatkuasa sepenuhnya.... Keputusan dalam kes Yuneswaran tersebut mengikat mahkamah yang mulia ini dan mahkamah tidak seharusnya memilih kes Nik Nazmi sebagai autoriti yang sah berpandukan prinsip stare decisis dalam kes Dalip Singh.”

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.