The Kuching High Court today stayed proceedings against Chong and Tan pending the outcome in the Federal Court.
The MPs were charged under Section 4(1)(c) of the Peaceful Assembly Act 2012.
Leading counsel Gobind Singh Deo argued that the charges were unconstitutional. The lawmakers were entitled to assemble peaceably and to express themselves under Article 10(1)(a) and (b) of the Federal Constitution, he added.
Judge Stephen Chung said while the case must be brought to an “economical end”, the lower court had no jurisdiction in making a decision regarding the constitutionality of the illegal assembly charges.
“The constitutional question, sought to be referred to the High Court, must be a difficult issue posed in the dispute that it is irreconcilable,” said the judge. “It is only in this situation that the reference of a constitutional question becomes necessary.”
The judge was expressing the view that the matter be referred to the Registrar of the Federal Court by way of a special case.
The Federal Court is expected to set a date for the defence to appear, either in Kuala Lumpur or Kuching.
“The learned high court judge agreed with us that this was a question which was fit for the purpose of reference, and so he has made an order to be referred to the Federal Court,” Gobind told the media.
Also present was Chong’s father, Chong Siew Chiang, who served as legal counsel.
Chong and Tan were the only ones charged for allegedly taking part in the Bersih 4 rally where thousands took part.
The rally, organised by Sarawak For Sarawakians, started at the Kuching Hilton and ended at the Song Kheng Hai rugby grounds on Aug 29 last year.
Section 4(2)(c) carries a maximum fine of RM10,000 upon conviction.
Lawmakers would be stripped of their seats in the legislature, and barred from taking part in elections for five years, if sentenced to prison or fined more than RM2,000.
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MPs say illegal assembly charge unconstitutional