PUTRAJAYA: The Federal Court will determine if it is within its jurisdiction to hear the government’s appeal against the acquittal of Bersih chairman Maria Chin Abdullah for an offence under the Peaceful Assembly Act (PAA).
Government lawyer Hamdan Hamzah said the apex court had jurisdiction because it involved a constitutional matter.
However, Maria’s lawyer M Puravalen said since the matter came from the Sessions Court in Kuala Lumpur, the apex court had no jurisdiction to hear the case.
A five-man bench chaired by Chief Justice Raus Sharif has now fixed Oct 11 to hear the case.
The issue to be decided is whether a High Court in Kuala Lumpur made a decision in its original or appellate jurisdiction.
Cases that originate in the lower courts can go up to the Court of Appeal, and only cases that originate in the High Court can be heard in the Federal Court.
On Sept 7, the Court of Appeal allowed Bersih 4 rally organiser Maria’s appeal to strike out the charge of failure to give a 10-day notice prior to the event last year.
That decision invariably means that Maria need not face a trial scheduled in the Kuala Lumpur Sessions Court.
A three-man bench led by Tengku Maimun Tuan Mat said any law, including court judgments, could not be applied retrospectively.
Puravelan had submitted that at the time his client was alleged to have committed the offence, a Court of Appeal bench had ruled Section 9 (5) of the PAA as unconstitutional in the Nik Nazmi Nik Ahmad case in April 2014.
That provision prescribed a fine of RM10,000 against organisers of any rally for failure to give a 10-day notice to the police.
However, another Court of Appeal bench on Oct 1, 2015, in the case of R Yuneswaran, departed from the Nik Nazmi case, leading to the existence of two conflicting judgments.
Maria allegedly committed the offence on Aug 29, 2015, just before Yuneswaran’s judgment.
Lawyer Ambiga Sreenivasan, who appeared with Puravelan, had also submitted that Maria could not be charged with an alleged offence that did not exist on Aug 29, following Nik Nazmi’s case.
On April 18 last year, the High Court in Kuala Lumpur dismissed Maria’s application to strike out the charge.
Judicial Commissioner Mohd Shariff Abu Samah, relying on the Yuneswaran judgment, had said it was an offence to hold a rally without giving notice.
Maria was charged with failing to give notice to the Brickfields district police before organising the rally in front of the NU Sentral shopping complex, Jalan Tun Sambanthan, Brickfields, on Aug 29.