Prosecution fails to revive illegal assembly charge against Bersih chief

Last September 7, the Court of Appeal reversed the High Court’s decision and struck out a charge against Bersih 2.0 chief Maria Chin Abdullah for organising the August 2015 rally without giving a 10-day notice to the police as required by the Peaceful Assembly Act (PAA) 2012. — Picture by Saw Siow Feng
Last September 7, the Court of Appeal reversed the High Court’s decision and struck out a charge against Bersih 2.0 chief Maria Chin Abdullah for organising the August 2015 rally without giving a 10-day notice to the police as required by the Peaceful Assembly Act (PAA) 2012. — Picture by Saw Siow Feng

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PUTRAJAYA, Oct 11 — The Attorney-General’s Chambers lost its final appeal today against the dismissal of the charge against polls reform group Bersih 2.0 chief Maria Chin Abdullah for failing to give advance notice of the Bersih 4 rally in 2015.

Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum, who chaired a five-man panel at the Federal Court, said they unanimously dismissed the prosecution’s appeal against the previous dismissal of Maria’s criminal case.

He said the Federal Court had no jurisdiction to hear the prosecution’s appeal.

“This started in the Sessions Court and it should end at the Court of Appeal,” he said in his brief judgment.

The other judges on the panel today were Tan Sri Zainun Ali, Tan Sri Ramly Ali, Tan Sri Zaharah Ibrahim and Datuk Alizatul Khair Osman Khairuddin.

In Malaysia, there are court decisions stating that criminal cases originating from the Sessions Court may only be appealed up to the Court of Appeal, and that no further appeal should be made at the Federal Court for these cases. This is in contrast to cases that start at the High Court, which may be appealed to the Court of Appeal and the Federal Court.

Maria’s lawyer, M. Puravalen, earlier argued that his client’s matter at the High Court and Court of Appeal revolved around an application to strike out her charge and did not involve constitutional issues, saying the case should have end at the appellate court.

DPP Awang Armadajaya Awang Mahmud argued, however, that the application in Maria’s case previously was related to the Federal Constitution, noting that these constitutional issues should have been brought to the High Court and could ultimately be brought to the Federal Court to decide on.

“Essentially what was argued was constitutional issues in the Court of Appeal. It is constitutional issues — retrospective effect of laws, Article 7 — so it should have gone by that way,” he told the judges.

He then asked the judges to set aside both the decisions by the High Court and Court of Appeal in Maria’s case and send it back to the Sessions Court to decide if there were constitutional issues to be decided on.

Shahid Adli Kamarudin, another lawyer acting for Maria, said the Bersih chief had failed at the High Court to strike out her charge, but subsequently succeeded at the Court of Appeal. The prosecution then appealed the striking out decision.

Last September 7, the Court of Appeal reversed the High Court’s decision and struck out a charge against Maria for organising the August 2015 rally without giving a 10-day notice to the police as required by the Peaceful Assembly Act (PAA) 2012.

The Court of Appeal unanimously ruled that it was legal at the time of the 2015 rally to organise it without giving notice, as the valid law then was a 2014 court decision in PKR’s Nik Nazmi Nik Ahmad that found the 10-day notice requirement to be unconstitutional.

Although an October 2015 court decision in PKR’s R. Yuneswaran’s case subsequently found the 10-day notice requirement to be constitutional and would prevail over the earlier decision, the Court of Appeal said that court judgments are generally applied retrospectively but noted that this must be in line with the Federal Constitution’s Article 7(1).

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.”

In November 2015, Maria was charged in the Sessions Court with failing to comply with the requisite 10-day notice to the police before the two-day Bersih 4 rally in August 2015, an offence punishable under the PAA’s Section 9(5) with a maximum RM10,000 fine.

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.

But on October 1, 2015, the Court of Appeal departed from its previous decision and ruled in Yuneswaran’s case that it was necessary for rally organisers to give authorities a 10-day notice.

Today, Maria told reporters that she welcomed the decision.

“But to be honest, in the first place, the rally was peaceful, there was no need to bring it up from the Sessions Court right up here to the Federal Court. So we still maintain that it’s our right to be on the streets, our right to expression and we have followed the law,” she said immediately after the decision.

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