Sabah Bersih chairperson Jannie Lasimbang has been freed of four charges, two main and two alternative, related to the Bersih 4 rally on Aug 29 and 30 last year in the state capital.
She was discharged and acquitted without her defence being called after the Magistrate’s Court here considered the evidence offered by the prosecution.
Magistrate Cindy McJuce Balitus ruled yesterday that the prosecution had not made out a prima facie case against the accused. She cited Section 173(f)(ii) of the criminal procedure code (CPC).
Of the three ingredients related to the four charges, the prosecution failed to prove that “no consent was given by the owner of a site”. It could only prove the public rally took place on Aug 29 and 30, and that the accused was the organiser.
Lasimbang was charged under Section 9(1) of the Peaceful Assembly Act (PAA) and, alternatively, under Section 15(3) of the PAA.
The magistrate agreed the question that arose was whether the organiser needed to comply with Section 9(1) or Section 9(2)(a) of the PAA on giving notice.
The prosecution failed to tender any “government gazette”, she said, on the “designated place of assembly”.
The court noted the prosecution relied on the assumption that Kota Kinabalu City Hall (DBKK) was the owner of a said “taman” (park). It did not name the specific place nor produce evidence of ownership.
The court said in the absence of evidence on ownership, it was in the dark on whether the organiser needed the permission of the owner under Section 10(c) or give notice under Section 9(1).
“There’s no need to give 10 days notice if the place is a ‘designated place of assembly’,” magistrate Balitus added.
She cited Section 9(2) of the PAA and Section 3.
Earlier, the magistrate said it was too late to raise the constitutionality of the PAA.
“Both parties did not raise this issue before the trial,” magistrate Balitis said.
“They could have applied before the trial for the case to be transferred to the High Court.”
The Magistrate’s Court has no jurisdiction or prerogative to decide on constitutional matters.
Source : Joe Fernandez @ FMT Online