Appeal Court strikes out student activists’ bid to declare PAA unconstitutional

Jan 20, 2017
Court of Appeal, Putrajaya
Court of Appeal, Putrajaya

The Court of Appeal in Putrajaya today struck out the appeal brought by four student activists against a High Court’s refusal of their application to declare the Peaceful Assembly Act 2012 (PAA) unconstitutional.

A three-man bench chaired by Court of Appeal President Md Raus Sharif also ordered the trial of the case of Muhammad Safwan Anang, Ehsan Bukharee Badarul Hisham, Adam Adli Abd Halim and Muhamed Bukhary Mohamed Sofian to continue at the Kuala Lumpur Sessions Court.

“I don’t think we (the panel) should encourage all these things (applications), you will have your day in court, let the trial proceed,” Bernama reported as Justice Md Raus saying, who presided over the appeal with Justice Zakaria Sam and Prasad Sandosham Abraham.

The four had appealed against the High Court decision on May 23, 2016, which dismissed their application to declare Section 4(2)(c) and 4(3) of the PAA over participating in an assembly in a prohibited place, to be unconstitutional and to refer the constitutional issues to the Federal Court.

Justice Md Raus said, since the case had reached the defence stage, the trial should have been continued and that the defence still had time to file an application (where there is an appeal).

The panel made the ruling following preliminary objections raised by Deputy Public Prosecutor Awang Armadajaya Awang Mahmud against the appeal.

The Sessions Court had previously fixed Feb 27 to continue the trial.

In 2013, Muhammad Safwan, 28, Ehsan Bukharee, 26, Adam Adli, 28, and Muhamed Bukhary, 27 pleaded not guilty at the Sessions Court to a charge of participating in an assembly in a prohibited place, at Masjid Ar-Rahman, near Universiti Malaya, in Kuala Lumpur.

At the outset, Awang Armadajaya submitted that the application should have been made at the Sessions Court before the trial commenced, but in this case, the appellants had filed the application at the High Court during the defence’s case.

He also submitted that in a subordinate court (Sessions Court), an application to declare any legislation as unconstitutional should be made under Section 30 of the Courts of Judicature Act 1964.

Lawyer Eric Paulsen, who acted for the appellants, had cited Karpal Singh’s case, saying that the High Court had inherent jurisdiction to hear the application on constitutional issues.

He said the Sessions Court did not have the jurisdiction to hear applications on constitutional issues.

“That is why we have Section 30 of the Courts of Judicature Act at the Sessions Court,” replied Justice Md Sharif.