Day: January 7, 2014

[NEWS] Appellate Court rules Bersih 3.0 ban defective

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”.

[NEWS] Barring PKR duo from Bersih 3.0 was wrong, rules Court of Appeal

The Court of Appeal has allowed an appeal by two PKR leaders to set aside a magistrate’s order which had earlier barred them from participating in the Bersih 3.0 rally in 2012.

A three-man bench chaired by Datuk Linton Albert, however, did not offer any grounds in allowing the appeal by PKR deputy president Mohamed Azmin Ali (pic) and Rembau PKR branch chief Badrul Hisham Shaharin.

Albert said a written judgment would be provided later.

They also  asked the court to strike out the charges  against them.  However, this was not allowed.  Lawyer S. N. Nair, who represented Badrul Hisham said,  he would write to the Attorney-General’s Cambers to drop the charges against the two since the magistrate’s order was defective.

“The charge has no leg to stand on now since the order of the magistrate is illegal,” he told reporters.

Nair, assisted by counsel Datuk Mohd Yusof Zainal Abiden,  said they would ask the Sessions Court to strike out the charges if the A-G’s Chambers declined to withdraw the case.

Datuk C. V. Prabhakaran appeared for Azmin.

In April last year, the High Court dismissed the duo’s application to strike out the charges against them for taking part in the rally which called for free and fair election.

Azmin and Badrul Hisham made the applications on grounds that the order issued by magistrate Zaki Ashraf was invalid as it was issued out of jurisdiction and against the Peaceful Assembly Act (PAA).

They also claimed that the proper authority to impose restrictions on the public for lawful assembly under the PAA was the police, not the Kuala Lumpur City Hall, as stated in the order.

Therefore, they said, the charge under the PAA which was made based on the court order was flawed.

In May 2012, Azmin and Badrul Hisham together with opposition leader Datuk Seri Anwar Ibrahim were charged at the Sessions Court under the PAA with violating the court order by taking part in the rally at Dataran Merdeka on April 28. Anwar’s appeal to strike out the charge will be heard on February 5.

They were also jointly charged under the Penal Code with abetting three individuals in disobeying a court order prohibiting any assembly at Dataran Merdeka that day.

They were alleged to have instigated R. Tangam, J. Rajesh Kumar and Farhan Ibrahim  to remove the barriers put up by the authorities at Dataran Merdeka.

Subsequently, the trio were charged with a third count in July under the Penal Code with abetting supporters of the rally in defying a court order prohibiting a gathering at Dataran Merdeka, which resulted in the use of force and violence.  – January 6, 2014.