PETALING JAYA: A judge gave the prosecution an earful yesterday for “prematurely” charging Seri Setia assemblyman Nik Nazmi Nik Ahmad (pic) again at the Sessions Court for an offence he had been acquitted of by the Court of Appeal.

“I am bound [by the Court of Appeal ruling] unless and until the Federal Court [reverses the decision],” said Sessions judge Yasmin Abdul Razak

“There is a proper order to do it. The prosecution should have filed for a discharge not amounting to acquittal. That is the proper order.

“The appeal process [in the Federal Court] has to be finalised. This [new charge] is premature,” she said.

The judge then went on to grant Nik Nazmi, who is the deputy Speaker of the Selangor state assembly, a discharge not amounting to an acquittal.

The prosecution had charged the PKR politician again yesterday under Section 9(1) of the Peaceful Assembly Act 2012 for failing to give 10 days’ notice to the authorities for the Black 505 rally in the MBPJ Stadium in Kelana Jaya on May 8 last year.

In her ruling, Yasmin said she was not trying to lecture the lawyers but only explaining the situation that she was in.

“This is my concern: Can this Sessions Court make a decision which is different from the appeals court decision? The last time I checked, the Attorney-General’s Chambers’ appeal over the decision has not been heard yet,” she said.

Yasmin added that the very same Sessions Court in Petaling Jaya had ruled only on Monday that it was bound by the appeals court decision in Nik Nazmi’s case.

“This to me is like taking a third bite at the cherry,” she said of the prosecution’s move to charge Nik Nazmi with the same offence again.

Yasmin was referring to the case mention on Monday before Sessions judge Zamri Bakar of Nik Nazmi’s initial charge for the Black 505 rally that he has since been acquitted of by the appeals court.

On Monday, deputy public prosecutor Wan Shaharuddin Wan Ladin had argued for a postponement as the AG’s Chambers plans to appeal the Court of Appeal ruling. However, Judge Zamri ruled that he was bound by the appeals court’s decision and discharged Nik Nazmi.

Nik Nazmi’s case in the Sessions Court never went to trial. He took the matter up to High Court and filed an application to dismiss the charges against him arguing that the case was unconstitutional. However, on Nov 1 last year, the High Court dismissed his application.

He then took the matter up to the Court of Appeal which in a landmark ruling on April 25 acquitted him of the charges.

The court ruled that it was unconstitutional to criminalise organisers of a peaceful assembly and that Section 9(5) which imposes the fine on the convicted organiser should be struck out from the Act.

This article first appeared in The Edge Financial Daily, on May 7, 2014.