PKR Youth chief Nik Nazmi Nik Ahmad's decision to sue the Attorney-General (A-G) for malicious prosecution is well founded as he was charged for an offence that no longer existed in the statute book, lawyers said.They said the A-G's persistent action against the Selangor executive councillor in the lower courts after the landmark Court of Appeal ruling last April showed bad faith and abuse of court process.
Lawyer Fahri Azzat said the A-G's action against the Seri Setia assemblyman gave the impression that the former was either ignorant of the law or did not know the workings of the legal system.
"You cannot possibly frame a charge against a person for an offence that has been struck out by a superior court," he told The Malaysian Insider.
Fahri said this in response to Nik Nazmi's intention to file a lawsuit after the latter was acquitted – for the fourth time – from a charge of violating the Peaceful Assembly Act (PAA) 2012.
The High Court in Shah Alam yesterday dismissed the prosecution's appeal against Nik Nazmi's acquittal on grounds that it was bound by the Court of Appeal ruling.
His lawyer N. Surendran said the A-G must be held accountable for his action.
Lawyer Syahredzan Johan, who is preparing the papers for the lawsuit, said the action would be filed within the next 14 days.
"We will keep you informed once we are ready for filing," he added.
The 32-year-old PKR politician was charged on May 17, last year, in the Sessions Court with violating section 9 (1) of the PAA for failure to give 10 days' notice to police ahead of the "Blackout 505" rally on May 8 last year.
The gathering was held at the Kelana Jaya stadium in Petaling Jaya in protest of the 2013 general election results.
Section 9 (5) states that those found guilty can be fined up to RM10,000 and in Nik Nazmi's case he risked being disqualified from public office if convicted.
He failed to get the High Court to quash the charge against him on the grounds that sections 9(1) and 9(5) of the Peaceful Assembly Act were unconstitutional.
However, the Court of Appeal, in a landmark decision, ruled that Parliament could not criminalise Nik Nazmi's action as the organiser of the rally.
In acquitting, him, the appellate court struck down section 9(5) as it violated the right to assemble peacefully as enshrined in the Federal Constitution.
However, the prosecution filed a fresh charge over the same offence in May this year at the Sessions Court.
The deputy public prosecutor subsequently asked for a postponement as the prosecution had filed an appeal on the matter with the Federal Court.
However, the Sessions Court judge acquitted Nik Nazmi, in following the Court of Appeal ruling. The prosecution then appealed to the High Court.
Yesterday, the High Court judge said that a higher court had already issued an order that could not be revised by the lower court due to binding precedent.
Lawyers for Liberty executive director Eric Paulsen said the A-G’s persistent action against Nik Nazmi showed “bad faith" and that the A-G was "being vindictive".
Paulsen said it would be an uphill task to take on the A-G but this was an appropriate case for malicious prosecution.
Lawyer Mohamed Hanipa Maidin said the A-G's action must be challenged because the Court of Appeal had struck out the punishment provision in the PAA.
He said it was also shocking that the prosecution should be taking the action against Nik Nazmi.
"Malicious prosecution is a recognisable common law civil action and plaintiffs have succeeded against the authorities," he said.
Hanipa, who is also the Sepang MP, said as a guardian of public interest, the A-G should also respect the law and legal process.
"To my mind, Nik Nazmi's matter cannot go to the Federal Court because the PAA case started in the Sessions Court and must end in the Court of Appeal," he said.
Hanipa said the A-G should strive to end the PAA saga and accept the Court of Appeal's decision. – November 8, 2014.
********************************* resumde @14.29PM:) see how heart Desi works for his esteemedreaders!
J'ST DESSERTS: I broke for lunch, so this socialist who couldn't invite you for a capitalist meal, make do wit' the foloowing:)
PUTRAJAYA, Nov 7 — An appeal hearing initially scheduled for two days but is now in its eighth day of hearing has left a Federal Court panel “exhausted” and unwilling to entertain a request by the prosecution to revisit matters already heard.Following the conclusion of defence lawyer Gopal Sri Ram’s submissions today, lead prosecutor Tan Sri Muhd Shafee Abdullah told the court that the prosecution wished to reply to the matters just raised.
But Chief Justice Tun Arifin Zakaria was unreceptive towards the attempt, asking whether the defence had raised any issue that merited the prosecution’s rebuttal.
“We are exhausted,” Arifin told Shafee.
This prompted the private lawyer to wade through a bundle of documents to locate his point of contention, which centred on the state of mind of Anwar’s accuser, Saiful Bukhari Azlan, at the time of the alleged sodomy.
The defence previously asserted that a photograph of him appearing relax at a tea party the day after the alleged sodomy was inconsistent with that of a victim of sexual assault.
Shafee said that he wished to argue “the distinction between submission and consent.”
Arifin was unmoved and later adjourned the hearing to an unspecified date.
“In view of the submissions... we will need some time (to consider),” he said.
The Federal Court is hearing today Anwar’s challenge of the Court of Appeal’s decision to overturn a lower court’s decision to acquit him of the charge.
The case was originally allotted two days of hearing — October 28 and 29 — but has stretched on for eight days now and with no clear end in sight.
The High Court had in 2012 acquitted Anwar of the 2008 charge but the appellate court ruled on March 7 this year that the trial judge had erred when rejecting the DNA evidence produced in the case.
If Anwar fails to reverse his five-year imprisonment sentence and conviction in the Federal Court, he would lose his seat as the law bars anyone fined RM2,000 or imprisoned for one year from serving as a lawmaker.
Today’s hearing is presided over by a five-member panel led by Chief Justice Tun Arifin Zakaria. Others include Court of Appeal president Tan Sri Md Raus Sharif and Federal Court judges Tan Sri Abdul Hamid Embong, Tan Sri Suriyadi Halim Omar and Datuk Ramly Ali.
Anwar is represented by a 14-man defence team led by Datuk Seri Gopal Sri Ram. Others include lawyers R.Sivarasa, Latheefa Koya, N. Surendran and Gobind Singh Deo.