Malaysian youth activist and assemblyman Nik Nazmi Nik Ahmad is spending a second night in detention after his arrest on Sunday.
He is being detained under Section 9 (5) of the Peaceful Assembly Act (PAA) and Section 143 of the Penal Code.
The assemblyman’s arrest followed a mass rally on Saturday in which thousands of people marched through central Kuala Lumpur calling for the release of the opposition leader Anwar Ibrahim, the resignation of the prime minister Najib Razak, and reform of Malaysia’s judiciary.
The organisers estimated the crowd to number more than 10,000 people.
Nik Nazmi, who is the youth leader of the Parti Keadilan Rakyat (PKR, or People’s Justice Party) and assemblyman for Seri Setia in Selangor state had already been arrested on the evening of February 22 after a protest rally the previous day. He was released on police bail without charge after about four hours.
Malaysia’s federal court upheld a ruling by the Court of Appeal last year, which found Anwar guilty of sodomising his former aide Saiful Bukhari Azlan in 2008, and sentenced the former deputy prime minister to five years in prison.
Anwar says the case against him was fabricated by his political enemies and the verdict has been strongly criticised both locally and internationally.
Remand condemned as excessive
Nik Nazmi’s lawyer, Eric Paulsen, said the remand was “excessive and wrong in law”. An application for a revision of the magistrate’s decision to allow the assemblyman to be detained until March 11 had been filed with the Kuala Lumpur High Court, he said.
Paulsen, who is the executive director of Lawyers for Liberty, said the police were abusing Section 143 as Saturday’s rally was peaceful and there was no element of criminal force.
Several lawyers have criticised the use of Section 143 against those assembling peacefully. The provision should only come into play, they say, when there is criminal force.
It was also bizarre, Paulsen said, that the police were insisting on investigating Nik Nazmi under section 9 (5) of the PAA.
The PAA, introduced in 2012, imposes restrictions and conditions on matters such as the date, time, duration, place, and manner of an assembly.
Nik Nazmi challenged the constitutionality of a previous charge and, in a landmark judgement last year, the Court of Appeal ruled that no penal sanctions could be imposed on organisers for failing to give police ten days’ notice of an upcoming rally.
Nik Nazmi had at that time been charged with failing to give the police sufficient notice before organising the Black 505 rally at the Kelana Jaya stadium on May 8, 2013.
On April 25, 2014, the Court of Appeal ruled that the charge against Nik Nazmi under Section 9 (1) of the PAA for failure to give notice to the police before the rally be struck out.
The court also ruled that Section 9 (5) of the PAA – which provides for punishment for failure to give a 10-day notice to the authorities before a protest – was unconstitutional.
When police charged Nik Nazmi a second time over the Black 505 rally, alleging a breach of the PAA, the judge at the Petaling Jaya Sessions Court granted him a discharge, saying she was bound by the Court of Appeal decision as there was no stay granted on that decision.
The attorney-general has filed an appeal against the appellate court’s decision in the Federal Court, but lawyers say that, as there has been no stay order in the case, the appeal to the Federal Court is meaningless and the Appeal Court decision stands.
Nik Nazmi’s case cannot proceed further because of a new Federal Court ruling that prevents cases from lower courts from going higher than the Court of Appeal. The Appeal Court decision may yet be overturned, but, as it stands, Section 9 (5) of the PAA is currently null and void.
Paulsen said today that Nik Nazmi was in good spirits and had urged protesters to continue their struggle.
Supporters gathered for a second night outside the Jinjang lock-up where Nik Nazmi is being detained.
Democratic Action Party (DAP) politicians have joined PKR representatives in condemning the detention of Nik Nazmi. The DAP’s parliamentary leader, Lim Kit Siang, urged the home minister and prime minister to intervene and ensure that Nik Nazmi was released immediately.
The Penang PKR youth leader, Asrol Sani Abdul Razak, said Nik Nazmi’s detention went against the Peaceful Assembly Act and the Federal Constitution’s Article 10, which guaranteed the right to freedom of speech, assembly, and association to all citizens.
He said the assemblyman’s detention was against the principles of democracy and his arrest was totally unnecessary and illogical. Nik Nazmi had willingly and responsibly cooperated with the police, Asrol Sani said.
Lawyer Melissa Sasidaran said yesterday that police were detaining the assemblyman because he was allegedly a “repeat offender”. She said she had no idea what was meant by this. Nik Nazmi, she said, had been repeatedly discharged by the court in relation to Black 505, and had not been convicted.
One of Anwar’s lawyers, Latheefa Koya, tweeted yesterday: “section 9(5) of paa is not good law anymore. How can they say niknazmi is repeat offender? he has yet to be convicted- he was acquitted!”
Other activists arrested
Youth activist Adam Adli Abdul Halim, and the head of the PKR-backed Jingga 13 non-governmental organisation Fariz Musa were also arrested after the rally on February 21. They were detained under Section 143 on the day of the rally and were held overnight in the Jingang lock-up, then were released on police bail without charge. Adam, however, is in the throes of an appeal against a conviction and 12-month jail sentence for sedition.
PKR Kelana Jaya youth chief, Saifullah Zulkifli, was arrested after the March 7 rally, also under Section 143, and was taken to the Jinjang lock-up for questioning. He was released at about 12.50 a.m.on Sunday.
Nazmi called for consistent protest
On Saturday, Nik Nazmi said the rally turn-out was much bigger than the organisers had expected. He considered 10,000 to be a conservative estimate. “I think the message is very clear that the people are with us,” he said.
The conduct at the rally, Nik Nazmi said, had proved to police that the assemblies could be peaceful and should be allowed to continue.
The assemblyman for Seri Setia told the crowd that Najib was the worst and the weakest prime minister in the history of Malaysia. “If we continue to be consistent in gathering and speaking up against Najib, we can topple him; we can get him to resign.”
There have been a series of arrests since Anwar’s jailing. The Parti Sosialis Malaysia (PSM) secretary-general, S. Arutchelvan, was detained under the Sedition Act on February 19. Police confiscated his computer, modem, and mobile phone.
He was detained over a PSM statement that condemned the Federal Court for upholding Anwar’s conviction. The statement said the Malaysian courts were not independent and were politically driven.
Just after S. Arutchelvan was released on police bail on February 20, police arrested activist Lawrence Jayaraj, also under the Sedition Act, over comments he posted on his Facebook page. Lawrence was released on February 22.
On Saturday, S. Arutchelvan said: “If I am seditious, then millions of people in this country and all over the world are also seditious.”
On February 11, the cartoonist Zulkiflee Anwar Ulhaque, better known as Zunar, was arrested for sedition over his criticism of the judiciary. A cartoon posted by Zunar on Twitter showed Malaysia’s prime minister, Najib Razak, as the judge in Anwar’s case. “Those in the black robes were proud when passing sentence,” Zunar tweeted. “The rewards from their political masters must be lucrative.”
The government had previously pledged to repeal the 1948 Sedition Act, which critics say is being used to stifle dissent, but it later announced that the Act would be retained and expanded.
Anwar not allowed to attend parliament
The prisons department rejected an application for Anwar to be allowed to attend the opening of parliament today and the rest of the month-long parliamentary session.
Opposition politicians chose not to wear ceremonial dress for the opening in protest at the decision.
Anwar remains the MP for Permatang Pauh until a decision on a petition for a royal pardon, filed by his family, is made.
Although the appeal for clemency will technically be decided upon by the Federal Territories Pardon Board, the king, Yang di-Pertuan Agong Tuanku Abdul Halim Mu’adzam Shah, will be the one who decides whether or not the petition is granted.
There is no set time for when the application must be heard. The petition could be decided upon in a matter of days, but could also remain unheard for years