Court of Appeal strikes out Bersih chief's illegal assembly charge

PUTRAJAYA, Sept 7 — The Court of Appeal today struck out the charge against Maria Chin Abdullah for organising last year's Bersih 4 rally without giving authorities 10 days’ notice.

The three-member panel led by judge Datuk Tengku Maimun Tuan Mat said in its unanimous judgement that at the time of the Bersih 4 assembly last August, the verdict in the case of Nik Nazmi Nik Ahmad, which ruled as unconstitutional the requirement for a 10-day notice under the Peaceful Assembly Act (PAA) 2012, was valid. Thus, it was legal for Chin to organise a rally without giving notice.

"Our considered view is that the same principle applies to judicial pronouncement while it can take effect retrospectively, it must be in line with Article 7(1)," she said.

"We find merits in the appeal, it is allowed and the order of High Court is set aside," she added.

Article 7(1) of the Federal Constitution provides "protection against retrospective criminal laws" and states that "no person shall be punished for an act or omission which was not punishable by law when it was done or made."

The High Court in April had previously struck out Chin's application to have charges against her dropped, saying the electoral reform group’s chief failed to notify the Brickfields police 10 days before the rally as required under Section 9(1) of the PAA.

Datuk Ambiga Sreenevasan, who represented Chin, contended today that at the time of the alleged offence last August, it was legal to hold a rally without the need for a 10-day notice in line with the appellate court’s decision in the Nik Nazmi case.

She added that it was only after the August rally that a separate Court of Appeal bench ruled in the case of R. Yuneswaran last October that Section 9(5) of the PAA was constitutional, thus requiring rally organisers to submit a 10-day notice to the authorities.

"The point is at the time when it was committed, was it offense? The answer is no it wasn't.

"You cannot subsequently have a law changed then say 'Look now it’s an offence,'" she said today.

In a landmark decision on April 25, 2014, the Court of Appeal had acquitted Nik Nazmi after ruling that it was unconstitutional to criminalise spontaneous public assemblies in breach of the 10-day notice required under Section 9(1) of the PAA.

However on October 1, 2015, the appellate court departed from its previous decision and ruled in the case of PKR's Yuneswaran that it was necessary for rally organisers to give authorities a 10-day notice.

However deputy public prosecutor Suhaimi Ibrahim said that a court's decision can be applied retrospectively and that the most recent court decision is the one that is valid.

"Pronouncement of court goes retrospectively. It can be applied retrospectively based on general principles," he explained to reporters when court was on a break.

Last November, Chin was charged with failing to comply with the requisite 10-day notice to the police before the two-day Bersih 4 rally in August the same year.

If convicted, she can be punished with a maximum RM10,000 fine for non-compliance under Section 9(5) of the Peaceful Assembly Act.

The two-day Bersih 4 rally leading up to Merdeka Day on August 31 had called for Prime Minister Datuk Seri Najib Razak’s resignation from office.