PUTRAJAYA (Apr 25): The Court of Appeal today allowed an application by Seri Setia State Assemblyman Nik Nazmi Nik Ahmad to drop a charge against him for organising the Black 505 rally at Stadium Kelana Jaya on May 8, last year.

It ruled that the police could impose restriction on such rally but not punish organisers by prosecuting them for failing to comply with the 10-day notice requirement.

In a landmark decision, a three-man bench headed by Datuk Mohd Ariff Mohd Yusof said Section 9(5) of the Peaceful Assembly Act (PAA) 2012 was unconstitutional since the provision was ultra vires to Article 10 of the Federal Constitution which guaranteed peaceful gathering.

In a unanimous decision, Mohd Ariff ordered the decision of the Shah Alam High Court on Nov 1, last year to be set aside, which had initially dismissed Nik Nazmi's application to drop the charge.

Before delivering judgment, Mohd Ariff said the bench comprising two other judges, Datuk Dr Hamid Sultan Abu Backer and Datuk Mah Weng Kwai decided that all three of them write separate judgements since its was a public interest case and involved constitutional issues.

In his decision, he said Section 9(1) of the PAA was constitutional on the 10-day notice requirement to the police but criminalising for failure to do so under Section 9(5) was unconstitutional where the rally on the May 8 turned out to be very peaceful.

The senior judge pointed out that if an assembly was lawful, one could not at the same time declare it illegal.

However, he said the PAA was debated in Parliament and the court could not substitute the views of the legislature.

Nik Nazmi, who is also Selangor State Assembly deputy speaker, was charged under Section 9 (1) for failing to notify the district police on the Black 505 rally within the required 10-day notice period.

Upon conviction, the state assemblyman stood to lose his seat, as the punishment under Section 9(5) of the PAA is a fine of up to a maximum of RM10,000.