Is it constitutional to criminalise the failure to notify police five days before a rally? Federal Court to decide today
Today, the Federal Court will decide if it is constitutional to make it a crime for an organiser not to notify the police five days in advance before a peaceful rally is held.
What law is the Federal Court examining?
The Peaceful Assembly Act 2012's (PAA) Section 9(1) requires an organiser to notify the police five days before the date of a peaceful gathering.
Under the PAA's Section 9(5), anyone who fails to give the five days' notice commits an offence, and will be fined a maximum RM10,000 if convicted in court.
Two questions for the Federal Court to answer today
The Federal Court was asked to decide if it agrees that Section 9(5) is unconstitutional because it goes against the rights promised to all Malaysians under the Federal Constitution:
the right to freedom of speech and expression under Article 10(1)(a); and
the right to assemble peacefully under Article 10(1)(b).
Previously, the Court of Appeal gave two conflicting decisions in two different cases:
in 2014, it said Section 9(5) is unconstitutional; and
in 2015, it said Section 9(5) is constitutional.
Today, the Federal Court will decide once and for all if Section 9(5) is a valid law and can be used in Malaysia against organisers of peaceful rallies.
Lawyer Abraham Au confirmed to Malay Mail that there has been no Federal Court decision yet on whether Section 9(5) is constitutional or not.
He confirmed that the Federal Court could make clear which of the Court of Appeal decisions was correct.
How did this case come about?
On August 26, 2022, political party Malaysian United Democratic Alliance's (Muda) then secretary-general Amir Hariri Abd Hadi was charged in the Magistrates' Court under Section 9(1) for failing, as the organiser, to inform the police five days before an August 14, 2022 rally.
Amir Abd Hadi is pictured at the Kuala Lumpur High Court August 26, 2022. — Picture by Firdaus Latif
The charge stated that this was a crime that can be punished under Section 9(5).
Before his trial could begin, Amir succeeded in getting the Magistrates' Court to refer constitutional questions regarding Section 9(5) to the High Court.
The High Court later decided to forward those constitutional questions to the Federal Court.
These are the two questions that the Federal Court will decide today.
The Federal Court decision today will determine if Amir has to face trial in the Magistrates' Court, his lawyer Au confirmed.
Why is this case important?
In written arguments at the Federal Court, Amir's lawyers say politicians are often the organisers of public rallies, and Section 9(5) could result in them losing their status as MPs or the chance to be an MP.
This is because the Federal Constitution's Article 48(1)(e) disqualifies a person from becoming or remaining an MP if the court convicts and sentences a person to a fine of at least RM2,000 or at least one year of jail and they have not been pardoned.
In other words, if you are fined RM2,000 or more under Section 9(5), you cannot contest in elections to be an MP. If you are already an MP, you will lose your parliamentary seat.
What does the government plan to do with the law on peaceful rallies?
On February 13, Prime Minister Datuk Seri Anwar Ibrahim said the government will change the PAA 2012 to remove the need to get a venue owner's permission for a peaceful rally.
But Anwar said organisers will still need to give five days' notice to the police to ensure safety and traffic control.
On April 30, Communications Minister Datuk Fahmi Fadzil said the government plans to bring the proposed changes to the PAA to Parliament in the next meeting (to be held in July and August) or by October at the latest.
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