The AG must stop undermining the Court of Appeal’s Nik Nazmi decision

Court of Appeal’s decision is now under appeal to the Federal Court and therefore the cases ought to be postponed even though there was no stay of the Court of Appeal’s decision.

Lawyers for Liberty is extremely concerned with the Attorney-General’s response to the Court of Appeal’s landmark Nik Nazmi vs Public Prosecutor decision that declared section 9(5) of the Peaceful Assembly Act 2012 as unconstitutional and consequently null and void.

This is a historic, the most important judgment on fundamental rights since Merdeka – that sent the clearest possible message that every Malaysian citizen can assemble peacefully, a fundamental right that is guaranteed under the Federal Constitution and any attempt to criminalise peaceful assembly in whatever manner or form is unconstitutional.

Although we do not expect the AG to embrace the decision, we are however appalled at the manner the AG’s Chambers have made a concerted attempt at undermining and even ignoring the Court of Appeal’s decision by making perverse and outright erroneous arguments at the lower courts where many PAA cases are heard. 

Let us be clear, until and unless the Federal Court was to reverse the decision of the Court of Appeal, it remains a good decision and binding on all lower courts. Consequently, there is no longer a recognisable offence under section 9(5) of the PAA and therefore all charges under this provision must necessarily be groundless and the accused persons must be discharged.

The AG’s Chambers instead of adhering to these basic principles of law, have tried to postpone on-going PAA cases on the erroneous argument that the Court of Appeal’s decision is now under appeal to the Federal Court and therefore the cases ought to be postponed even though there was no stay of the Court of Appeal’s decision.

The AG’s Chambers even went to the incredible extent of suggesting that the Court of Appeal did not have powers to declare the impugned provision as unconstitutional and section 9(5) was still valid as Parliament has not abolish it and the provision is still present in the statute books. To make matters worse, the AG’s Chambers attempted to recharge Nik Nazmi (who was acquitted), and Badrul Hisham (Chegubard), Edy Noor and Mohd Bukhairy (who were discharged) for the same offences in outright defiance and contempt of the Court of Appeal’s decision.   

Consequently, some lower courts have been misled into making very basic and serious errors including continuing to hold an accused over a non-existing offence and thinking they are not bound by the decision of a superior court. By deferring to the wishes of the AG’s Chambers, these lower courts have failed to uphold some very fundamental precepts of our legal system including judicial powers of the superior courts, the rule of law, judicial precedent, constitutional rights and criminal law principles that were designed to protect the rights of an accused person.

The actions of the AG’s Chambers smack of desperation and set another bad precedent that sent the wrong message that the authorities will go to extraordinary lengths to prosecute the government’s political adversaries and dissidents. It cannot be over emphasised that the AG’s Chambers represents the State, the community at large and the interest of justice, and not the government of the day (or Barisan Nasional). The purpose of a criminal prosecution is not to obtain a conviction at all cost but to place fairly and independently before the courts all available evidence to what is alleged to be a crime and the Prosecutor must further ensure that an accused receives a fair trial.  

The AG must therefore stop undermining the Court of Appeal’s decision through unfair tactics and arguments that can only bring disrepute into the administration of justice and instead work towards restoring public confidence of the rightful role of the AG’s Chambers, one that is dignified, just and free from political interference.

Eric Paulsen
Executive Director
Lawyers for Liberty