Court of Appeal has no authority to hear legality of unlawful assembly

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Source: FMT News 

PUTRAJAYA: The Court of Appeal today allowed the government’s objection that it has no jurisdiction to hear constitutional issues raised by four men convicted of violating the Peaceful Assembly Act.

A three-man bench led by Mohd Zawawi Salleh said the High Court had erred in deciding that Section 4(2)(b) of the Peaceful Assembly Act was a valid provision.

“We are not seized with the jurisdiction under the Courts of Judicature Act 1964 to determine if that provision is constitutional,” he said.

Zawawi said the case would be remitted to the High Court in Johor Baru and a case management would be held on Aug 16.

Government lawyer Awang Armadajaya Awang Mahmud explained to reporters that the High Court judge would have to send the case straight to the Federal Court to determine the constitutionality of the provision.

He said the case of the four men started in the Sessions Court and the High Court went on to decide the legality of the section, which was disallowed based on a Federal Court ruling.

However, he said, constitutional issues could be determined by the High Court if the case originated from that court.

In March the government filed the objection, stating only the Federal Court, as the apex court of the country, could hear and determine constitutional matters where cases started from the subordinate courts.

It said the Court of Appeal was the intermediate court between the High Court and Federal Court.

“The Court of Appeal has no jurisdiction to determine constitutional issues, based on a Federal Court ruling in the case of Gan Boon Aun v Public Prosecutor,” the government’s notice of motion stated.

Social activist Thomas Fann Peng Fong, 54, engineer Koh Jit Huat, 54, Party Keadilan Rakyat (PKR) Tebrau division chief Steven Chong Shiau Yoon, and PKR member Mohd Salleh Ahmad, 53, were 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.

The Sessions Court, in January 2015, fined each of them RM5,000 in default three months’ jail.

Last year, High Court judge Sabiran Ja’far, who held Section 4(2)(b) of the PAA as legal, maintained the conviction but reduced the fine to RM1,500.

The four then appealed to the Court of Appeal and went a step further to challenge the constitutionality of Section 4(2)(b) of the PAA.

The government filed a cross-appeal to enhance the fine to RM10,000.

This case is the first appeal involving the section of the new act which came into force in 2012.