PETALING JAYA, May 16:
The Petaling Jaya Sessions Court today postponed its decision on the case of Solidariti Anak Muda Malaysia (SAMM) activist Badrul Hisham Shaharin or Chegubard, who was recharged under the Peaceful Assembly Act (PAA) 2012.
This, pending a mention on May 27 in the Federal Court, as to whether Section 9(5) of the PAA, which was ruled unconstitutional by the Court of Appeal, can be sustained.
In his submission today, Badrul Hisham’s lawyer Eric Paulsen argued that Section 9(5) of the Act has been deemed null and void, making it impossible for any charges pertaining to the Act to be brought upon his client.
“We cannot presume that the Federal Court will reverse the Court of Appeal’s ruling.
“The person in question here is being charged for a non-existent offence, regardless of any further appeal over the case..we have argued over this many times,” Eric added.
”It is unfair for the person in question to have a sword hang over his head.”
Eric then requested for Badrul Hisham to be discharged.
He said that until and unless the Federal Court decides to overturn the Court of Appeal’s verdict, there is no existing offence to charge Badrul Hisham under Section 9(5) of the PAA.
“But for the moment, the right decision is to discharge the said person in accordance with the law,” he added.
Deputy Public Prosecutor (DPP) Suhaimi Ibrahim in his submission however, said that while Section 9(5) has been declared unconstitutional, the provision is still physically present in the Federal Constitution.
“We must not elude the issue. What happens to the provision under the section in question then?”
Suhaimi said that until the Parliament decides to repeal the provision, Section 9(5) of the PAA is still very much existent.
“A non-existent law cannot be said to be deleted..it has not yet been completely done away with,” Suhaimi added.
“The provision is still there, so it cannot be deemed as groundless and the right thing for this court to do is to postpone this case to a later date after the Federal Court’s decision.”
To this, Eric then argued, saying Suhaimi had misled the court.
“The learned DPP is leading the court to commit a grave error by suggesting that the Court of Appeal has no power to declare the section as null and void.
“This is ridiculous,” Eric said.
He then questioned as to what available provision there is to charge Badrul Hisham, should the activist decide to plead guilty.
“What provision is there to charge? The DPP’s submission that Section 9(5) is physically present cannot be accepted.”
Judge Yasmin Abdul Razak later ordered for the case to be postponed to June 5, pending the Federal Court’s decision.
Eric later expressed his shock over Yasmin’s decision and the arguments brought forth by Suhaimi.
”It is extremely shocking from my part as a lawyer that the judge, not only here but as with other courts, seem to disregard what the Court of Appeal has ruled.
“What we have argued is fair and cannot be disputed. I don’t understand how this court can choose to postpone the case pending a Federal Court’s decision,” he told reporters.
Eric said what was more bizarre was the fact that the DPP argued that Section 9(5) is still in use until Parliament amends the law.
“The AG should resend his lawyers back to law school. They seem to pick and choose laws which act in their favour. I am now concerned for people like Chegubard,” he added.
Badrul Hisham then said that the ruling today showed how the AG can misread the law.
“This country will be ruined should the law be abused this way.
“There are protests done by pro-UMNO members, who had even hurt racial sentiments, but are let off scoot-free.
“Simply because I organised a peaceful rally and am not in the same ‘ideology’ as the ruling government, this happens to me,” Badrul Hisham said.
Badrul Hisham along with two other SAMM members were discharged not amounting to acquittal by a Sessions Court only two days ago.
On Wednesday, Judge Ahmad Bache ruled that he was bound by the Court of Appeal decision, which declared Section 9(5) of the Act unconstitutional.
Earlier, Badrul Hashim alongside Mohamed Bukhairy and SAMM propaganda director Edy Nor Reduan were recharged under Section 9(1) of the PAA for failing to furnish the police with a 10-day notice, before organising the ‘Turun’ rally.
The rally was to oppose the price increase of goods and the introduction of the Goods and Services Tax (GST).
Badrul Hisham, together with Muhd Bukhairy and Edy Nor, were originally charged on Jan 29 for the alleged offence committed at Dataran Merdeka, between 9pm on Dec 31, 2013 and 1am on Jan 1 2014.
On April 28, the trio were granted a discharge not amounting to acquittal by the Sessions Court over their involvement in the rally, after Section 9(5) was ruled to be unconstitutional.
The Court of Appeal on April 25, declared Section 9(5) of the PAA, which criminalises the failure to give 10-day notice before a gathering – to be unconstitutional.
The Rakyat Post