KUALA LUMPUR (May 15): The Kuala Lumpur Sessions Court today granted a temporary stay for the Peaceful Assembly Act (PAA) 2012 trial of Pandan MP, Rafizi Ramli and three others.
The stay was granted pending the outcome of the Attorney General Chamber’s appeal on the Court of Appeal’s landmark decision which declared that organisers of peaceful assemblies cannot be penalised.
Sessions Court Judge Mat Ghani Abdullah made his decision after hearing submissions from the defence that this would set a dangerous precedent as no legal matter was final until it was taken to the apex court.
In his decision, Judge Mat Ghani said: “It is not that the application made by the (defendants) is not allowed but rather it is postponed (until the Federal Court ruling)is given.
He said that even if the Court of Appeal’s decision does set a precedent, the AGC has yet to exhaust all it’s avenues over the matter.
He added that should he discharge the four, the prosecution would be left with no remedy to pursue this charge.
He also said that as the four are free on personal bonds, there are no restrictions to their personal liberties.
Besides Rafizi, the three charged are Seremban MP Anthony Loke, PKR secretariat member Adib Ishar and Syed Azman Syed Ahmad Nawawi, whose the Batu Buruk assemblyman.
The primary charge against them is that they failed to adhere to restrictions and conditions as stipulated under Section 15(3) of the PAA for the Padang Merbok Black 505 rally held on June 22.
Dang Wangi OCPD ACP Zainuddin Ahmad had set a condition requiring them to obtain permission from the Kuala Lumpur City Hall (DBKL) for the use of Padang Merbok for the rally which they allegedly did not comply with.
The four also face an alternative charge under Section 9(1) of the PAA for not providing the stipulated 10-day notice period to the authorities for the rally.
Lead counsel Eric Paulsen today argued for the four to be given a discharge not amounting to acquittal (DNAA) for both the charges.
Matter has been on trial since Dec
As for the alternative charge, he argued that it only follows that based from the Court of Appeal’s landmark decision on April 25 the charge level against the four was baseless.
The Court of Appeal declared Section 9(5) of the PAA – the RM 10,000 fine imposed for not informing the authorities as unconstitutional.
Four separate sessions court judges have handed a DNAA to those charged under Section 9(1) in recent cases stating in their decision that they are bound by the Court of Appeal’s decision.
Out of the four, two were a re-charge attempts by the AGC based on the same Section 9(5) which has already been declared null and void.
All four matters never went for trial unlike this one which has been on trial since December.
“You cannot let a sword hang over their heads for a charge that no longer exists,” argued Eric.
He also argued for a DNAA on the primary charge on the grounds that based on the three separate written judgements by the Court of Appeal, one cannot be penalised for exercising one’s constitutional freedom for administrative failures.
Above that he argued that during the ongoing trial for this case, a gazette has been produced as evidence in court to show that DBKL are merely administrators of Padang Merbok and not the rightful owners which is the Federal Government.
He argued therefore to ask permission from administrators of the premises as stipulated by the police was not even in the PAA.
Judge Mat Ghani however in his judgement rejected this application stating that the constitutionality of Section 15(3) was not specifically addressed in the Court of Appeal decision and that it would be “premature” of him to make a decision on it at this stage.
“AG wold fail his CLP”
He also said that there needs to be more details on the ownership of Padang Merbok.
Speaking to reporters, representing the four Syed Azman said that he was still hopeful that the Court would use the Court of Appeal’s decision as a landmark.
Rafizi voiced his disappointment over the ruling. All four charged were present in court today.
Eric once again said that it was indefensible to be recharged on a nonexisting charge.
“The Attorney-General (AG) Tan Sri Ghani Pattail would fail his Certificate of Legal Practice (CLP) if he was to sit for it tomorrow,” he said.
BY TARANI PALANI, FZ.Com