[AHRC] Prosecutor must stop applying provisions found unconstitutional

The Constitutional Court decided yesterday that two articles of the Act on Assembly and Demonstration are unconstitutional. They are article 10 of the Act prohibiting assembly and demonstrating before sunrise and after sunset and article 21(2) describing punishment for a person who violates article 10. In its judgement the Constitutional Court left the responsibility to the legislature for the amendment of those provisions of the Act with a note that if no amendment is made by June 30, 2010, the articles found unconstitutional shall lose their effect from July 1, 2010.

The Asian Human Rights Commission welcomes this decision, not only because the Constitutional Court verified the unconstitutionality of those provisions but also because the police and prosecutors can no longer use them to arbitrarily deprive people of the freedom of opinion and expression. It is reported that for the candlelight vigil last May 2008, around 1,500 people have been prosecuted or are currently in court proceedings. When the appeal to the Constitutional Court was made (see for further information AHRC-STM-041-2009), many cases were suspended awaiting the decision of the court. Several rights defenders also have their cases pending due to this same reason.

However, the prosecutors’ office today emphasised only on the point that the Constitutional Court temporarily allows the application of those provisions until such time as the amendment of those provisions is made and further says that those who violate the current provisions of the Act (that were verified as unconstitutional) will be punished.

The AHRC has no doubt that the prosecutors are well educated and trained but cannot conceal our deep concern of the argument provided by the prosecutors’ office. The AHRC sees it as not only baseless but also an excuse that it continues its arbitrariness of applying the laws and provisions.

According to the article 47(2) of the Constitutional Court, “Any law or provisions thereof decided as unconstitutional shall lose its effect from the day on which the decision is made: Provided, that the law or provisions thereof relating to any penalty shall lose its effect retroactively.” Based on the judgement, it is inevitable for the prosecutor to stop proceedings against those accused of allegedly violating the particular provision and release them. It is also worth noting that the court shall find those accused innocent and they should therefore be released.

In addition, the article 47(3) of the constitutional court also stipulates, “In case referred to in the proviso of paragraph (2), the re-adjudication may be requested with respect to a conviction based on the law or provisions thereof decided as unconstitutional.” If those prosecutors continue to proceed in the cases until those provisions of the Act are amended, and the court finds the accused guilty based on the provisions found unconstitutional, those convicted will also bring their cases for re-adjudication.

The prosecutors’ argument clearly shows the absurdity of how they are performing their official duty as they intend to punish the demonstrators and let them ask for re-adjudication. The AHRC has failed to find other reasons except one thing that it is another indicator of a sign of cracks in the democracy and rule of law in the country. The previous indication took place not long ago as many rights defenders and legal scholars have witnessed, the prosecutors’ office prohibited the defence lawyers access to an investigation report despite the fact that the court had ordered the prosecutor to do so (see for further information AHRC-STM-137-2009). It will be only another demonstration to the international community of not only the human rights situation in the country but also as to how democracy and the rule of law has declined after the new administration came into power. Unless the practice of arbitrarily applying laws is not addressed, and if the judgement by the Constitutional Court is not respected by the law enforcement agency the government will loose credibility.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong, Special Administrative Region of China-based group was founded in 1984.