©The Malaysian Insider (Used by permission)
by V. ANBALAGAN
The Federal Constitution can only be amended by Parliament to include or remove words used by the framers of the national charter, the Court of Appeal said.
A three–man bench, which on Thursday declared that it was legal to punish peaceful rally organisers for failure to give a 10–day notice to the police, said the judiciary would have usurped the power of the legislature if allowed to perform such a function.
“We are mindful that the words used or not used by the framers of our constitution are not etched in stone.
“The constitution may be amended to include or remove or modify any word or words originally used or excluded by the framers. But surely that is a task for Parliament,” said judges Tan Sri Raus Shaarif, Datuk Mohd Zawawi Salleh and Datuk Zamani A. Rahim who delivered a joint judgment on Thursday against the acquittal of Johor PKR executive secretary R. Yuneswaran for unlawfully organising a “Blackout 505” rally in 2013.
In short, the judges said, the 1957 Merdeka constitution framers wanted Parliament to be the judge of what was “reasonable” to determine the limits to fundamental rights, not the courts.
The bench made the remark in response to an argument during submission by lawyers for Yuneswaran that “criminalisation” of the restrictions limiting the right of peaceful assembly under Article 10(1) (b) was not “reasonable” and, therefore, unconstitutional.
Yuneswaran’s counsel had relied on a 2010 Federal Court ruling that reasonable restriction should be read when interpreting Article 10 (freedom of speech, assembly and association).
That principle was adopted in the Nik Nazmi Nik Ahmad versus public prosecutor by another Court of Appeal last year, which declared section 9(5) of the PAA was unconstitutional.
The bench, led by Raus, said the provision of the article was clear and there was no necessity to read the word “reasonable” into that provision.
The judges, who referred to documents by the Reid Commission, said a drafter of the constitution justice Abdul Hamid of Pakistan had opined that the word “reasonable" wherever it occurred before the word “restrictions” in the three sub–clauses of Articles 10 should be omitted.
Hamid had said right to freedom of speech, assembly and association has been guaranteed, subject to restrictions which may be imposed in the interests of security of the country, public order and morality.
Hamid’s opinion was followed.
“It, therefore, follows that the non–inclusion of the word ‘reasonable’ in Article 10 was not some oversight on the part of the Reid Commission,” the judges said.
The judges said the constitution’s framers did not want the word “reasonable” in Article 10 because they wanted to avoid a potential conflict between Parliament and court.
“They want Parliament to be sure of the fate of the law which they are enacting and they want the laws of this country to be certain.” – October 4, 2015.