The Court of Appeal has today unanimously set aside the order by Kuala Lumpur Magistrate Zaki Asyraf to ban the Bersih 3.0 rally in 2012, under Section 98 of the Criminal Procedure Code (CPC).
A three-member panel, headed by Justice Linton Albert, deemed the ban order defective, following an appeal filed by PKR deputy president Azmin Ali (left) and Rembau PKR chief Badrul Hisham Shaharin.
The duo had argued that the order went against the federal constitution.
The other judges on the panel were Justices Zakaria Sam and Wong Dak Wah.
Azmin was represented by CV Prabhakaran while former deputy solicitor-general Mohd Yusof Zainal Abiden, who has since retired and joined private practise, while lawyer Sankara Nair represented Badrul Hisham, or better known as Chegubard.
Zaki had issued the order on April 26, 2012, two days before the mammoth rally.
The duo filed their application last year to strike out charges against them under the Peaceful Assembly Act 2012 (PAA) on the grounds that the order issued by Zaki to ban the rally was ultra vires of the PAA, which had come into force on April 23, 2012, and that the magistrate had acted beyond his jurisdiction.
It was reported that Azmin and Chegubard had earlier failed to strike out the charges at the Kuala Lumpur High Court.
Should the prosecution decide not to appeal today’s decision at the Federal Court, then Azmin and Badrul Hisham’s lawyers may apply to strike out the charge at the Sessions Court.
Sankara said they would write to the Attorney-General’s Chambers to drop the charges against the two as the court found the order as defective.
Application made at High Court
As their application originated in the High Court, the prosecution could appeal today’s decision at the Federal Court, which is the highest court in the land.
Azmin and Badrul Hisham were charged along with opposition leader Anwar Ibrahim for not abiding with the magistrate’s order.
However, Anwar – who was represented by Karpal Singh – filed a separate application before the duo at the Sessions Court, but it was also dismissed.
It was reported that the three of them are charged under Section 4(2)(c) of the PAA, with participating in the rally and violating the magistrate’s court order between 2.30pm and 3pm on April 28 in 2012.
They are also charged under Section 188 of the Penal Code in that they allegedly breached the magistrate’s order and a third charge of conspiring with Rasah PKR division deputy head R Tangam, lawyer G Rajesh Kumar and van driver Farhan Ibrahim @ Alias by inciting them to breach the barricade surrounding Dataran Merdeka, which “could have caused a riot or clashes”.
- Hafiz Yatim
- 2:17PM Jan 6, 2014