Federal Court sets aside reference bid by four who challenged PAA

PUTRAJAYA: The Federal Court has set aside a reference application by four individuals to challenge the constitutionality of a provision in the Peaceful Assembly Act 2012 (PAA).

Court of Appeal president Tan Sri Zulkefli Ahmad Makinudin, who chaired the five-man bench, ruled that an order by the High Court to allow the four individuals to refer the matter to the Federal Court was wrong.

He remitted the case back to the Court of Appeal for hearing of the merits of appeal brought by social activist Thomas Fann Peng Fong, engineer Koh Jit Huat, Party Keadilan Rakyat (PKR) Tebrau division chief Steven Chong Shiau Yoon and PKR member Mohd Salleh Ahmad against their conviction for taking part in an assembly in 2013.

He set March 29 for mention of the case. Presiding with Zulkefli were Federal Court judges Tan Sri Hasan Lah, Tan Sri Ramly Ali, Tan Sri Jeffrey Tan Kok Wha and Datuk Alizatul Khair Osman Khairuddin.

On Aug 9 last year, the Court of Appeal sent the case back to the Johor Baru High Court for it to decide whether there were constitutional issues to be referred to the Federal Court for determination.

The Court of Appeal also stayed the conviction and sentence of the four.

In December last year, the Johor Baru High Court overruled the prosecution's objection that the reference was incompetent, and allowed the applicants to take their case to the Federal Court.

At yesterday's proceeding, deputy public prosecutor Awang Armadajaya Awang Mahmud raised an objection, saying that the application was incompetent because the provisions in the Courts of Judicature Act 1964 had not been followed.

He said the four individuals could not challenge the constitutionality of Section 4(2)(b) of the PAA as they had already been convicted and sentenced by the Sessions Court for the offence they were charged with.

The DPP said the matter originated from the Sessions Court and the four individuals should have first raised the constitutionality of Section 4(2)(b) at the Sessions Court rather than at the High Court.

Fann, Koh, Chong and Mohd Salleh were charged with taking part in the “Free Adam Adli” assembly near a petrol kiosk in Jalan Tun Razak in Johor Baru on May 21, 2013.

In January 2015, the Sessions Court found them guilty and fined each of them RM5,000 in default three months' jail.

On Feb 18, 2016, the High Court dismissed their appeal on conviction but reduced the fine to RM1,500 each, in default a month's jail.