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Thursday, March 22, 2018

Apex court dismisses activists’ bid to test peaceful assembly provision


The Federal Court rules that the challenge brought by Thomas Fann Peng Fong, Koh Jit Huat, Steven Chong Shiau Yoon, and Mohd Salleh Ahmad was incompetent.
PUTRAJAYA: The Federal Court today set aside a reference application by four activists to challenge the constitutionality of a provision in the Peaceful Assembly Act 2012 (PAA).
A five-member bench chaired by Zulkelfi Ahmad Makinuddin said the challenge brought by Thomas Fann Peng Fong, Koh Jit Huat, Steven Chong Shiau Yoon, and Mohd Salleh Ahmad, was incompetent.
It basically means the four, who had been charged with taking part in the “Free Adam Adli” assembly near a petrol kiosk on Jalan Tun Razak in Johor Bahru on May 21, 2013, had not followed the correct procedure.
A petrol kiosk is among places identifed as a “prohibited location” for the holding of a peaceful gathering under the PAA.
Zulkefli said, after having looked at the facts and chronology of the case, the Court of Appeal’s order in August last year was not right, adding:”This matter is remitted to the Court of Appeal to hear the appeal by the four against their conviction.”
The Court of Appeal had sent back the case to the High Court in Johor Baru as the four had taken the position that Section 4(2)(b) of the PAA was against their right to assemble peacefully.
In December last year, the High Court agreed to refer the constitutional reference to the apex court despite a preliminary objection by the government that the procedure adopted by the four was not correct.
However, the objection was overruled.
Today, deputy public prosecutor Awang Armadajaya Awang Mahmud submitted before the apex court that the four could not raise constitutional issues now as they had already been convicted and sentenced by the Sessions Court for assembling at a prohibited location.
The Sessions Court, in January 2015, fined each of them RM5,000 in default three months’ jail.
“Their application is incompetent because provisions in the Courts of Judicature Act 1964 were not followed,” he said.
Awang Armadajaya said the four raised the legal challenge for the first time in the High Court in 2016. However, he said the High Court held Section 4(2)(b) of the PAA was legal and had maintained the conviction but reduced the fine to RM1,500.
Awang Armadajaya said a Federal Court court ruling in the case of Gan Boon Aun v Public Prosecutor had ruled that lower courts must send cases to the High Court to determine whether constitutional issues needed to be referred to the apex court.
He explained to reporters later that the four should have raised the constitutionality of Section 4(2)(b) before the Sessions Court to be referred to the High Court.
“If the High Court finds there are constitutional issues, it will refer it to the apex court. Otherwise, the High Court will send it back to the lower court for trial to commence,” he added. -FMT

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