The High Court today dismissed Seri Setia assemblyman Nik Nazmi Nik Ahmad’s (pic, left) application to strike out a charge against him under the Peaceful Assembly Act (PAA) 2012.
Nik Nazmi, who is also the Selangor deputy speaker, was charged under Section 9 (1) for failing to notify the district police on the Black 505 rally within the required 10-day notice period.
If convicted, the state assemblyman stands to lose his seat, as the punishment under Section 9(5) of the PAA is a fine of up to a maximum of RM10,000.
Nik Nazmi said that the charge against him was politically motivated as a result of selective prosecution.
Judge Noor Azian Shaari, however, said: “That is just their asam garam (to spice up the allegation) to make their story more delicious.
“It is not an argument that can support their contention that Section 9(1) and 9(5) is ultra vires the Constitution. They can raise that at the Sessions court during the trial.”
Nik Nazmi’s lawyer, Syahredzan Johan, argued that there was no connection that failure to give the 10-day notice, and the punishment meted out for the offence, can be justified against needing to safeguard national security and public order.
He also said that it was an unreasonable restriction to peaceful assembly as enshrined in the Federal Constitution.
Deputy public prosecutor Wan Shaharuddin Wan Ladin, however, said that it was not for the court to read into the words of the PAA which are plain and clear in its meaning that a 10-day notice is required to hold an assembly.
The hearing was peppered with retorts from the judge who disallowed attempts by lawyers Syahredzan and Eric Paulsen from linking today’s application to allegations of fraud by the Election Commission in the May 5 polls.
“You are barking up the wrong tree. That is not background for the case. The background is that he was charged and takes it from there. Argue the case based on law,” Noor Azian said.
When Paulsen tried to submit that the charge was politically motivated and done in bad faith, the judge said: “I’m not going to hear that. I just want to know if it is ultra vires the Constitution.”
When Paulsen continued to submit, the judge asked him why he was being stubborn.
To this, the lawyer said: “It is my job to do my best in the interest of my client.”
Outside court, Paulsen said that the team was disappointed they were not given a fair chance to be heard.
“The court has yet again failed to protect the rights of the people according to the Constitution. This charge effectively turns freedom of assembly into a strict liability offence,” he said, adding that they would be filing an appeal against today’s ruling.
The Black 505 rally was held on May 8 at the Kelana Jaya Stadium and attracted thousands of Pakatan Rakyat (PR) supporters to rally for free and fair elections, just days after the Barisan Nasional coalition retained its power with 133 federal seats against PR’s 89 in the general election.
Opposition leader Datuk Seri Anwar Ibrahim, PKR deputy president Mohamed Azmin Ali and the party’s Rembau branch chief Badrul Hisham Shaharin were the first to be charged under the PAA in May last year for their involvement in the Bersih 3.0 rally. – November 1, 2013.
BY JENNIFER GOMEZ, The Malaysian Insider