Siti Zabedah Kasim & Anor v ACP Noor Delhan & Ors [2022] MLJU 2908

1.0 THE AZAM BAKI CONTROVERSY AND INACTION BY THE MALAYSIAN ANTI-CORRUPTION COMMISSION

When controversy, over more than 1.5 million shares of great value in the control and possession of Malaysia’s Commissioner for Anti-Corruption (‘MACC’) —Azam Baki—came to light in October 2021, the Commissioner as a public servant’s source of funds and his failure to declare them, were called into question. The expose, which had culminated in a question in Parliament following a news report by an investigative journalist was however met with complaisance from the Board of the MACC.

Associate Professor Terence Gomez - the member of the Board who urged the Advisory Board to investigate the allegations, eventually resigned over the Board’s inaction. Ten days after Terence Gomez’s resignation, Azam explained that the shares belonged to his brother who had used his account to purchase stocks in the open market, and the Chairman of the Advisory Board accepted the explanation concluding that Azam had no beneficial interest in the shares.

The Commission’s Advisory Board however had been divided as to whether the allegations warranted further investigations. Six other members of the Advisory Board had publicly distanced themselves from the hasty conclusions of the Chairman of the Board. Despite furor over the MACC’s inaction, through statements by the Secretary of Dewan Rakyat and the Securities Commission and the Parliamentary Select Committee on Finance and Economy, no evidence that an investigation was commenced against Azam was presented.

2.0 THE ARREST AZAM BAKI MOVEMENT

A civil movement calling themselves “Tangkap Azam Baki” (Arrest Azam Baki) announced that it would be organising a peaceful assembly (‘the Rally’) to protest the inaction against Azam Baki.

In response to this announcement, on 20th January 2022 the Assistant Commissioner of Police Noor Dellhan bin Yahya, obtained an order (“the Prohibition Order”) from the Kuala Lumpur Magistrates’ Court pursuant to Section 98 of the Criminal Procedure Code (‘CPC’). The order was cited on the failure of the rally organisers to obtain police permission pursuant to Section 9 of the Peaceful Assemblies Act 2012, and the order prohibited any person from assembling in any of the 3 proposed locations including any location of the rally and within a 1 kilometer radius to them.

Additional grounds given were the measures in place under Phase 4 of the National Recovery Plan, to contain the spread of Covid-19. At the time, Kuala Lumpur was under Phase 4 of the National Recovery Plan which had come into effect on 18th October 2021. This ground was indeterminable however as social gatherings had been permitted since Phase Two in 2020 and all economic activities had been permitted since Phase 3 earlier in 2021. The rally organisers obdurately proceeded as planned at a location not named in the prohibition order.

Siti Zabedah Kasim and Raveentheran Suntheralingam who had attended the Tangkap Azam Baki rally brought an action against the Officer in Charge of the Police Department on grounds that their fundamental liberties had been unlawfully restrained, when the former applied to the Magistrate for the Prohibition Order.[1]

The Applicants sought leave to apply for judicial review of the Magistrate’s decision to issue the prohibition order. The Applicants relied primarily on the freedom of assembly in Article 10 of the Federal Constitution. The Attorney General, on whom all applications for judicial review are served at leave stage, objected to leave. The Attorney General relied on the exclusion of Section 98 of the CPC from judicial review primarily on the basis that there were alternative remedial routes available to the applicants which were more appropriate, including appeal pursuant to 307 of the CPC or applying to rescind or alter the Order pursuant to Section 98(4) of the CPC.

The Applicants in response, relied on R v Hereford Magistrates’ Court, Ex parte Rowlands [1998] Q.B. 110 contending that the existence of a right of appeal in the High Court does not preclude the right to apply for judicial review if a party is aggrieved on the grounds of procedural impropriety, unfairness or bias. In any event, the Applicants contended that Section 323 of the CPC prevented any appeal against the Order.

The High Court agreed with the Attorney General’s position that the Applicants failed to avail themselves of the statutory process in Section 98(4) of the CPC to rescind the Order. Such failure was consequently fatal to their application for judicial review. The High Court appeared to say that the application was premature and should have applied for judicial review only if they were unsuccessful in an application under Section 98(4). The decision is the subject of an appeal to the Court of Appeal.

3.0 THE LEGAL POSITION RELATING TO FUNDAMENTAL LIBERTIES

Reported cases relating to the freedom of assembly over the past decade reveal a sharp contrast in the modes of investigative or prosecutorial action by law enforcement. The sudden and frenetic awakening of executive action to quell demonstrations in protest of incidents featuring the abuse of power resembles an ‘automatic or semi-automatic mode’. In sharp contrast to this mode is the inertia and indifference over those very abuses.[2] In the exceptional case of PP v Nik Nazmi however,[3] the accused, an opposition member of the Selangor State Legislative Assembly was acquitted on the charge of participating in an assembly in respect of which a police notification had been omitted.[4] Pursuant to Section 9(5) of the Peaceful Assembly Act 2012 (‘PAA’), a person contravening Section 9(1) commits an offence which upon conviction renders them liable to a fine not exceeding ten thousand ringgit. The accused as Communications Director of an opposition party, had received numerous complaints about election fraud allegedly aided by the Elections Commission in the 13th General Elections. Following the 13th General Elections, he organised a rally in protest for which he was arrested and convicted.

The accused’s appeal was grounded firstly on the claim that the requirement to provide ten days’ notice for an assembly was excessive and an unreasonable restriction on the constitutionally protected freedom of assembly.[5] Secondly, the criminal proceedings against him were said to be an abuse of the court process and being politically motivated was an act of selective prosecution.

As the constitutional issues raised in that appeal were of significant public importance, in order to facilitate a detailed consideration of the matters raised, the coram of the Court of Appeal delivered separate judgments. Mohamad Arif Yusoff JCA held that there was no provision in the PAA that an assembly held without the giving of the requisite prior notice was per se unlawful.

Mah Weng Kwai JCA concurred and found incongruity in the law that deemed an assembly, which was held peacefully and without arms and in which a participant commits no wrong could hold the organiser criminally liable under s. 9(5) for not having given the 10-day notice. In His Lordship’s opinion, the restriction imposed by s. 9(1) and 9(5) of the PAA amounted to an effective prohibition against urgent and spontaneous assemblies as organizing carried the threat of prosecution.

Per Hamid Sultan Abu Backer JCA, while restrictions may be imposed on fundamental liberties, it was essential that they meet the requirements of reasonableness and proportionality and on these facts, the State had failed to satisfy the Court to satisfy the court that the imposition of the restrictions was in the interest of the security of the Federation or of public order. His Lordship relied on trite authorities for the principle that restrictions on fundamental liberties were to be read restrictively.[6]

A subsequent decision of the Court of Appeal however departed from this above ruling and held that Section 9(5) of the PAA was constitutional, valid and enforceable.[7]

4.0 PROMOTING THE DEMOCRATIC RECESSION

This case represents one of many constitutional cases featuring abuse of power, corruption and nepotism, a breakdown of the rule of law and weak institutions. These factors have been shown to be significant contributors to democratic decay globally throwing the world since 2006 into what has now been termed a democratic recession.[8] Weak rule of law and institutions promote lawlessness and criminality, which in turn create an environment characterised by a lack of trust; where citizens neither trust each other nor trust the state. Under these conditions, would-be autocrats gain power to betray the electoral promise and their obligations under the constitution and intimidate the opposition to accumulate power.

The vast intelligence capabilities entrusted upon the publicly funded MACC hinged on their use for the deterrence and eradication of corruption. At the crux of the outcry therefore was speculation as to Azam Baki’s use of these capabilities including confidential information obtained through his office to the advantage of companies in which he held shares. Two of those companies were allegedly engaged in investigations. Could Azam Baki remain faithful to the office he held, to the exclusion of his and/or his brother’s interests?

The independent investigation of the controversy surrounding Azam Baki was unquestionably warranted, yet perplexingly, prosecutors invested time and resources obtaining an order for the prohibition of an innocuous rally that was no more than an exercise of fundamental freedoms.

The broader context of this case demonstrates an opacity around investigative and prosecutorial decision-making, which, if subjected to effective constraints or closer scrutiny, at the least could make great strides in arresting Malaysia’s democratic recession.

REFERENCES [1] Siti Zabedah Kasim & Anor v ACP Noor Delhan Yahaya & Ors [2022] MLJU 2908. [2] See Meor Safizal Meor Mohamed Amin & Ors v PP (Court of Appeal) [2015] 4 CLJ 709: Nik Noorhafizi Nik Ibrahim & Ors v PP (Court of Appeal) [2014] 2 CLJ 273; Dato Seri Anwar Ibrahim v PP (High Court) [2013] 3 Current Law Journal 1043; [3]PP v Nik Nazmi [2014] 4 CLJ 944. [4] Peaceful Assembly Act 2012 Section 9(1) provides “An organiser shall, five days before the date of an assembly, notify the officer in charge of the police district in which the assembly is held.” Section 9(1) was amended in 2019 (A1600) to reduce the notice period from ten days to the current five. [5] Federal Constitution Articles 10(1)(b) and (2)(b). [6] Dato' Menteri Othman bin Baginda & Anor v Dato' Ombi Syed Alwi bin Syed Idrus [1984] 1 CLJ 2, Raja Azlan Shah Lord President. [7] PP v Yuneswaran Ramaraj [2015] 9 CLJ 873. [8] Diamond, L., Hartlyn, J., Linz, J. J. & Lipset, S. M. (1999). Democracy In Developing Countries: Latin America. (Second edition). Colorado: Lynne Rienner Publishers. Diamond, L. (2015). Facing Up to the Democratic Recession. Journal of Democracy, 26(1), 141-155. Diamond, L. (2008). The Democratic Rollback: The resurgence of the predatory state. Foreign affairs (Council on Foreign Relations), 87(2), 36.