The Sessions Court in Kuala Lumpur today ordered a discharge not amounting to acquittal on Anwar Ibrahim, Azmin Ali, Badrul Hisham Shahrin and three others for taking part in the Bersih 3.0 assembly.
This came with Sessions judge Ahmad Bache allowing their lawyers’ application to use Monday’s Court of Appeal judgment declaring as illegal a magistrate’s order barring the assembly from being held.
“As the basis of the charge is on the order, we find that the charge is now groundless.
“Hence, I order a discharge not amounting to acquittal and decline the prosecution’s application for a stay,” judge Ahmad said.
If the prosecution wanted to apply for a stay of the proceedings, he said, it should have done so when the matter was before the Court of Appeal.
The appellate court’s three-member bench on Mondayunanimously declared magistrate Zaki Asyraf’s April 26, 2012, order banning the holding of the mammoth Bersih 3.0 rally, two days before it was to be held, as invalid.
This followed an appeal filed by Azmin and Badrul Hisham, who is better known as Chegubard (right), that the order was illegal and against the federal constitution.
The new Peaceful Assembly Act had already been gazetted before the magistrate’s order was issued.
When the case came up for mention yesterday, lawyers for the six accused, including Anwar, applied to use Monday’s Court of Appeal judgment their basis for a discharge not amounting to an acquittal.
Karpal Singh, who acted for Anwar, submitted that the court has the discretion under Section 173(g) of the Criminal Procedure Code (CPC) to grant a discharge not amounting to an acquittal.
The other three who faced the charge are R Tangam, Farhan Ibrahim and Rajesh Kumar.
‘Order forms integral part of charge’
Judge Ahmad said the court had meticulously perused all the charges against the six accused.
“The court is satisfied that the order issued by the magistrate under Section 98 of the CPC, which has been declared invalid by the Court of Appeal, forms an integral part of all charges.
“In fact, a general reading of the charges shows that the accused had breached the order while committing the offences stated in the charges. Hence the order forms a fundamental element of the charges as they stand now.
“I therefore find that the charges, as they stand now, are defective following the Court of Appeal declaring the said order invalid. Hence, it follows that the charges are groundless,” ruled Ahmad.
Therefore, the sessions judge said, he has no choice but to grant a discharge not amounting to acquittal.
Ahmad also said that not granting a discharge to the accused would result in them being more prejudiced than the prosecution, as the charges would be hanging over their heads while the prosecution had the liberty of charging them again later.
He noted the prosecution applied for a stay of the proceedings before the sessions court and that it had also filed an appeal on the Court of Appeal decision.
As for appeal to higher court…
“However, this court is mindful that an appeal to a higher court, in this case the Federal Court, cannot operate as a stay of execution of any judgment. The Court of Appeal decision is hence to be observed and complied forthwith.
“If at all, the prosecution should have made the application (for a stay) before the Court of Appeal itself,” Ahmad noted.
Anwar, 65, Azmin, 49, and Chegubard, 35, were the first persons to be charged under the Peaceful Assembly Act 2012, which provides a maximum fine of RM10,000 upon conviction.
Later, the trio were slapped with another charge of conspiring with Tangam, Rajesh and Farhan and five others to breach the police barricade at Dataran Merdeka.
Besides Karpal, who appeared for Anwar, Gurcharan Singh represented Azmin while Mohd Yusof Zainal Abiden and Sankara Nair appeared for Chegubard.
DPP Wan Shaharuddin Wan Laden, who led the prosecution, said they would likely file for a revision of today’s decision.
Source : Malaysiakini