PETALING JAYA, May 6 — A Sessions Court granted a discharge not amounting to an acquittal to Nik Nazmi Nik Ahmad this afternoon, barely two hours after the Selangor lawmaker was charged with violating an assembly law — the same charge he was freed of recently.
Judge Yasmin Abdul Razak said the lower court is bound by the Court of Appeal’s decision to acquit and discharge Nik Nazmi on April 25 for violating the Peaceful Assembly Act (PAA) 2012.
“Whether rightly or wrongly he was freed… this is a daunting task for me but I have to concede I’m only a sessions court judge and I’m bound by the Court of Appeal’s ruling, until and unless the Federal Court decides otherwise,” she said.
“The proper recourse is to appeal,” the judge added when agreeing with Nik Nazmi’s lawyer N Surendran.
“This is not taking a second bite at the cherry but a third bite.”According to the charge read out in court today, Seri Setia assemblyman Nik Nazmi, 32, allegedly violated Section 9 (1) by failing to notify police 10 days prior to the Blackout 505 rally at the Kelana Jaya Stadium on May 8 last year.
The former PKR communication director was charged on May 17 last year for the same offence.
Nik Nazmi is among the seven Pakatan Rakyat (PR) leaders, including two MPs, who were charged under the controversial legislation for organising various Blackout 505 rallies claiming the results of the Election 2013 were rigged.
Upon challenge on the first charge, Nik Nazmi was acquitted by the Court of Appeal on April 25 and no order of stay was granted.
The appellate court, in a unanimous judgement, ruled it unconstitutional to criminalise spontaneous public assemblies in breach of the 10-day notice required under Section 9 (1) of the legislation.
The three-person bench said that Section 9 (5) of the PAA ― which imposes a maximum RM10,000 fine for non-compliance ― ran counter to the Federal Constitution and must be struck out.
The prosecution has also filed an appeal over the acquittal at the Federal Court.
Surendran pointed out today that revised charge was in breach of Article 7 (2) of the Federal Constitution, which stipulates that a person cannot be tried again for an offence for which they have been either convicted or acquitted.
The exception is in instances when the conviction or acquittal is quashed by a superior court and a retrial ordered.
The lawyer also said that Section 9 (5) of the PAA was rendered unconstitutional by the appellate court and remains so until the matter is decided by the Federal Court.
Surendran later asked that the Session Court find the prosecution in contempt of court for disregarding the Court of Appeal’s decision.
However, Deputy Public Prosecutor Wan Shaharuddin Wan Ladin argued that the fresh charge did not violate Article 7(2) of the Federal Constitution as Nik Nazmi was never “tried” before his acquittal.
Speaking to reporters outside the courtroom later, Surendran said the defence will attempt to have Attorney-General Tan Sri Gani Patail and the government cited for contempt over their bid to file a fresh charge against Nik Nazmi.
“We are shocked Gani sunk so low. This goes to show how desperate the government is as they saw how courageously Malaysians had assembled peacefully,” he said.
Lawyers for Liberty executive director Eric Paulsen, who is Nik Nazmi’s counsel, accused the country’s top lawyer of causing “chaos” in the country’s legal system by driving the lower courts to ignore precedents set by superior courts.
Nik Nazmi said Putrajaya’s move today is an indication of fear against dissenting expressions but welcomed the judgement as a “victory”.
BY PATHMA SUBRAMANIAM, The Malay Mail Online