It is wrong of the Attorney-General to recharge any person for an offence that does not exist following a superior court ruling, criminal lawyers said, as three more activists are expected to be charged again tomorrow under the Peaceful Assembly Act 2012 with the same “offence”.
The lawyers said Tan Sri Abdul Gani Patail must respect and follow the rule of law, and should wait for the outcome of his appeal in the Federal Court before taking the next course of action.
On April 25, the Court of Appeal declared that a rally organiser could not be penalised for a peaceful assembly as such gathering was constitutional.
The A-G is appealing the decision.
Earlier this week, Seri Setia assemblyman Nik Nazmi Nik Ahmad was recharged under the Peaceful Assembly Act 2012 for failing to provide authorities with a 10-day notice over the Black 505 rally held at the Kelana Jaya stadium in May last year.
Tomorrow, Badrul Hisham Shaharin @ Chegubard, Edy Nor Reduan and Mohamed Bukhairy Mohamed Sofian will be recharged under the PAA for failing to give the authorities a 10-day notice of last year’s Turun rally held at Dataran Merdeka on New Year’s Eve.
Lawyers for Liberty executive director Eric Paulsen said the three were served the summons yesterday.
They were first charged on January 29 but were given a discharge on April 28 by the Kuala Lumpur Sessions Court.
“By ignoring the Court of Appeal ruling, Gani is in serious contempt of court,” Paulsen said.
On Tuesday, the Sessions Court threw out the charge against Nik Nazmi, saying it was bound by the ruling of the superior court, and gave Nik Nazmi a discharge not amounting to an acquittal.
Lawyer Datuk V. Sithambaram said judge Yasmin Abdul Razak should have acquitted Nik Nazmi for he was charged with an offence which no longer existed.
“By striking out the punishable section in the PAA , the Court of Appeal does not recognise the offence.”
He said the issue of punishing a person twice for the same offence did not arise as the court had ruled that the punishment for failure to give notice before organising a rally no longer existed in the statute book.
“It is the A-G’s prerogative to appeal to the Federal Court but until then the Court of Appeal ruling must be respected.”
Criminal law lecturer Datuk Baljit Singh Sidhu the second attempt to prosecute Nik Nazmi revealed an unhealthy and dangerous trend by the prosecution.
“Going by what the A-G’s Chamber’s has done, an unhealthy and dangerous trend is emerging and this is not good for the criminal justice system,” he said.
Baljit, who also practises law, said public confidence in the system would erode if the executive, legislature and judiciary were inconsistent in their actions.
BY V. ANBALAGAN AND LEE SHI-IAN, The Malaysian Insider