The Federal Court has ordered seven individuals, including three members of parliament (MP) to face trial first for allegedly participating in street protest rallies before they can proceed to take their constitutional challenge to that court (Federal Court).
Chief Justice Tun Arifin Zakaria, leading a five-man bench wants them to go for trial to enable the Sessions Court to establish a finding of fact on whether street protest had taken place or otherwise.
“As far as I am concerned, the matter is academic. Go back to the lower court and let the prosecution prove there was a street protest first, then come back to us. We will hear your argument. I am not saying there is a finding of guilt”.
“If they are acquitted by the Sessions Court (at the end of the prosecution’s case) then, there is nothing to challenge,” said Arifin.
He said the individuals were at liberty to file a reference to challenge the constitutionality of street protest, once the Sessions Court had made its findings on the issue.
Arifin did not make any decision on the reference application brought by the seven individuals.
The individuals are activists Adam Adli Abdul Halim and Mohd Fariz Abd Talib @ Musa, Bersih 2.0 chairman Maria Chin Abdullah, Bersih 2.0 committee member Mandeep Singh, Bayan Baru MP Sim Tze Tzin, Bandar Kuching MP Chong Chieng Jen and Stampin MP Julian Tan Kok Ping.
They are respectively charged with allegedly participating in ‘Kita Lawan’ rallies from the Sogo shopping mall through Jalan Tuanku Abdul Rahman on Feb 28 and Jalan Tun Perak on March 28, both last year, and Bersih 4 rally in Kuching on Aug 29, last year under Section 4(2)(c) of the Peaceful Assembly Act 2012 (PAA).
The individuals have been given the nod by the High Court to bring a reference to the Federal Court to decide on the constitutionality of the charge they are facing.
They want the Federal Court to determine two legal questions, including a question on whether Sections 4(1)(2) and 4(2)(c) of the PAA which prohibits organising and participating in street protest are inconsistent with Article 10 (1) (a), Article 10 (1) and Article 10 (2) (freedom of speech, assembly and association) of the Federal Constitution.
Lawyer Gobind Singh Deo, representing Chong and Tan, requested the court to hear the reference as he said no facts were required to decide the constitutionality of the section.
Deputy Public Prosecutor Awang Armadajaya Awang Mahmud, who appeared for the prosecution agreed with the court’s view.