Magistrate’s Court order banning May Day rally in Kota Kinabalu unlawful and ultra vires
28 April 2015
Lawyers for Liberty is appalled that the Sabah police has obtained a Magistrate’s Court order to ban a rally organised by Bersih 2.0 for May Day in Kota Kinabalu. The shockingly wide and arbitrary Magistrate’s Court order covers five main open areas in Kota Kinabalu and will be in effect from 27 April to 3 May even though the rally is only scheduled for two hours from 3pm to 5pm on 1 May at Padang Merdeka.
Kota Kinabalu police chief assistant commissioner M. Chandra should not feign ignorance and must know that such an order was set aside and declared unlawful by the Court of Appeal in January 2014 when Azmin Ali and Badrul Hisham challenged such an order which purportedly barred them from participating in the Bersih 3.0 rally in 2012.
Further the police also must know that after the Court of Appeal’s landmark Nik Nazmi vs Public Prosecutor decision, section 9(5) of the Peaceful Assembly Act that penalises organisers of peaceful assemblies with a fine of up to RM10,000 if they fail to provide the requisite 10 days’ notice, is no longer good law as it had been declared unconstitutional and therefore null and void.
The fact that the organisers were unable to obtain approval from the Kota Kinabalu City Hall for the use of Padang Merdeka should not be a ground for an outright ban as this is merely a minor local government offence or an offence under section 15 of the PAA for failure to comply with restrictions and conditions.
None of these minor offences empower the police or the Magistrate’s Court (which is an inferior court) to pre-empt and declare any rally as “illegal” under the Criminal Procedure Code, PAA, Penal Code or any other laws.
We would like to remind the police that Nik Nazmi’s decision is historic and the most important judgment on fundamental rights since Merdeka. This judgment sent the clearest possible message that every Malaysian citizen can assemble peacefully, a fundamental right that is guaranteed under Article 10 of the Federal Constitution and any attempt to criminalise peaceful assembly in whatever manner or form is unconstitutional.
It is therefore extremely irresponsible for the police to mislead the public and claim otherwise. Needless to say, the police cannot pick and choose the laws they want to enforce or ignore Superior Court decisions they disagree with while at the same time, they surreptitiously go to Magistrates and obtain questionable court orders which are surely ultra vires.
We urge the police to respect the people’s right to peaceful assembly as guaranteed by the Federal Constitution and further call on the police to facilitate the rally instead of hindering it.
Lawyers for Liberty
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