Appeals court rules permit for public assemblies constitutional

PUTRAJAYA (Sept 4, 2013): In a majority decision, the Court of Appeal here today ruled that the provisions in the Police Act 1967 which state that the public is required to obtain a permit for public assemblies, is constitutional.

The sections involved - Section 27 (2) and Section 27 (5) of the Police Act 1967 - however, were repealed last year and replaced with the Peaceful Assembly Act 2012.

A three-member panel led by Datuk Seri Mohamed Apandi Ali dismissed the appeal brought by five former university students who challenged the validity of the provisions in their bid to have their convictions and RM3,900 fine set aside for participating in an anti-Internal Security Act rally in 2001.

The majority judgment by Mohamed Apandi and Datuk Linton Albert held that Section 27 (2) and Section 27 (5) of the Police Act 1967 requiring a permit for public assemblies and making it an offence for assembling without a permit, were in law reasonable restrictions and did not prohibit the right to peaceful assembly.

Justice Mohamed Apandi said the restrictions under those provisions to obtain a permit were regulatory in nature and not prohibitory to protect and maintain law and order in the interest of the public.

He said licensing requirement was to regulate a public assembly, meeting, procession, etc, as they were without a doubt potentially a catalyst for riot, chaos and disorder.

"Regulating the right to assemble in public is to allow the police the benefit of reading the pulse of the situation on the ground and to make an intelligent assessment of public safety and public order."

Justice Mohamed Apandi said Section 27 (2) and Section 27 (5) of the Police Act 1967 were neither unconstitutional nor in conflict or inconsistent with the provision of Article 10 (1)(b) of the Federal Constitution which guaranteed the right to freedom of peaceful assembly.

He said the police force was duty bound to maintain security and public order in the country, to ensure continued peace and harmony.

Justice Apandi said apart from security concerns about such assemblies, taxpayers' monies literally went up in smoke for clearing the debris and after-effects of the assemblies, not to mention possible casualties.

"How can we (the court) relegate the burning issue of the right to peaceful assembly against the dire threat of national security and public order to the back burner before it has been thoroughly analysed, reviewed and burnt itself out?

"Dozens of assemblies continued to be held in the city and in other parts of the country and hence the security concerns...." said Justice Mohamed Apandi who also said that there was no merit in the appeal. In his 50-page judgment, he (Mohamed Apandi) also said that the appellants' appeal was not academic despite the sections being repealed, and that the appellants had direct interest in pursuing the appeal to overturn their convictions.

Justice Datuk Hamid Sultan Abu Backer dissented and held that the sections were unconstitutional.

In his 77-page judgment, he (Justice Hamid Sultan) said the right to assemble peacefully was a guaranteed right in the constitution and there could not be penal sanction legislated when citizens assembled peacefully without committing offences under the Penal Code, etc.

He quashed the convictions of the five men and further ordered that the fine be refunded.

Nik Norhafizi Nik Ibrahim, 33, Zulkefli Idris, 33, Ahmad Kamal Abdul Hamid, 32, Rafzan Ramli, 36, and Khairul Amal Mahmud, 33, were found guilty by a magistrate's court on June 18, 2009 of participating in an unlawful assembly in protest against the Internal Security Act in the compound of the National Mosque between 2pm and 2.15pm on June 8, 2001.

On Jan 27, 2011, a High Court dismissed their appeal and upheld their conviction and the fine imposed on them by the magistrate's court. On April 26, 2011, they obtained leave to appeal to the Court of Appeal.

All of them had been expelled from the public universities as a result of their participation. The five were represented by lawyer Edmund Bon while deputy public prosecutor Yusaini Amer Abdul Karim appeared for the prosecution.

Outside the court, Bon said the outcome was disappointing but there was consolation because Justice Hamid Sultan had provided a strong dissenting judgment, adding that hopefully, constitutional lawyers could pursue the issue before the Federal Court in future cases. – Bernama