Striking Down Section 9(5): A Constitutional Win for Peaceful Assembly

Ending on a high note — for Democracy.

1st July, 2025 marked a historic day for freedom of expression in Malaysia. The Federal Court, in a unanimous decision led by outgoing Chief Justice Tun Tengku Maimun on her final day in office, delivered a judgment that firmly reaffirmed the constitutional guarantee of the freedom to assembly.

The Court struck down section 9(5) of the Peaceful Assembly Act 2012 (PAA), which subjected organisers of public assemblies to a maximum fine of RM10,000, simply for not giving the police five days’ notice (the requirement is still there, for good reason, but non-compliance will not invite criminal sanction).

The days where peaceful assembly organisers being punished criminally for essentially nothing are over. Let's talk about the significance of this resounding decision.

Unreasonable and Disproportionate Restriction

Restrictions to freedom of expression are permissible, and often even necessary to combat societal evils and extremism like hate speech. Article 10(2) of the Federal Constitution provides so.

This must be, however, assessed in a objectively fair and proportionate manner, as the Chief Justice unequivocally said:

"Any laws passed by Parliament are not simply rendered valid because they are passed for the reasons stated in Article 10(2), but they must also be objectively fair and proportionate to the aim of, and reason for, those restrictions."

Imagine you're an activist and an urgent issue crops up, perhaps a detainee just died in police custody, maybe a minister was just exposed for corruption, or possibly the government just announced an oppressive policy. Whatever.

Public outrage erupts. People are demanding answers immediately. You and your friends want to hold a candlelight vigil this Saturday outside the police station or a non-violent protest outside the ministry office — a peaceful show of solidarity and a call for accountability. But then you realise... it’s already Wednesday.

What are you supposed to do to avoid being fined RM10,000 for peacefully assembling? Wait until Monday to protest because the law says you needed to notify the police five days ago?

That just defeats the purpose of the assembly. The iron must be struck while it's hot.

That was exactly the case before the Federal Court. MUDA’s former secretary-general Amir Hariri Abd Hadi, was charged for failing to notify the police before leading a protest demanding transparency on the littoral combat ship (LCS) corruption scandal. The protest was peaceful. The issue was urgent. But criminal attention fell onto Amir (rather than the corruption), merely due to the lack of notice.

That was the problem with section 9(5) of the PAA. It was akin to "using a hammer to confront the menace of the mosquito," which violates Article 10(2) read with Article 8 of the Federal Constitution for being unreasonable and disproportionate.

Drawing on a South African Constitutional Court decision, the Federal Court observed that there are less intrusive methods to incentivise the giving of notice, such as making it a condition for ensuring that the police cannot impose restrictions on an assembly. It’s a thoughtful suggestion, and one that Parliament would do well to seriously consider.

Legal Position Finally Resolved

This was not the first time section 9(5) of the PAA has come before the courts. Previously, two separate panels of the Court of Appeal faced the same issue, in relation to two Blackout 505 protests following the 2013 General Elections.

The first panel held section 9(5) PAA to be unconstitutional — but celebration was premature. Merely a year later, the second panel chose to depart from that decision, reinstating the validity of the provision, and reigniting legal uncertainty with respect to freedom of assembly.

Fortunately for all of us, the Federal Court has, once and for all, resolved this legal ambiguity in favour of our constitutional freedoms:

[88] Considering our substantive deliberations on the constitutional validity on subsection 9(5) in this case, we see no reason to delve deeper into the arguments raised for or against the proposition in either Nik Nazmi or Yuneswaran. Suffice it for us to say that the conclusion arrived at by the Court of Appeal in Nik Nazmi is correct and that as such, Yuneswaran’s conclusion is wrong. Yuneswaran is hereby overruled and shall have no value as judicial precedent.

A Missed Opportunity — 'Reasonableness Test'

Interestingly, an endeavour that Amir's legal team (led by Prof Gurdial & Abraham Au) had set out to address was to resurrect the 'reasonableness test' that was lost following the decision in Yuneswaran.

In defending it, counsel posited that the 'reasonableness test' did not rewrite Article 10(2) but rather that the Federal Court in Ooi Ah Phua v Officer in Charge Criminal Investigation Kedah/Perlis [1975] 2 MLJ 198 and the Court of Appeal in Dr Mohd Nasir bin Hashim v Menteri Dalam Negeri Malaysia [2006] 6 MLJ 213 merely employed an accepted theory of interpretation to construe generously guaranteed rights and corollary to that, read down the effect of a derogating provision.

The rationale for this argument is that a literal reading of the word “restrictions” would allow Parliament to enact any law it deems fit and be immunised from the same. This certainly cannot be a logical interpretation. Conversely, a prismatic or holistic reading of the same word would suggest that the restrictions must necessarily be reasonable — to prevent the guaranteed rights from becoming illusory in nature.

Despite arguments on this issue being canvassed, the Federal Court opted not to address the applicability of the 'reasonableness test', but rather measured the constitutionality of Section 9(5) solely against the doctrine of proportionality housed under Article 8 of the Federal Constitution.

It bears mention that the merits of the 'reasonableness test' from the conflicting decisions of Nik Nazmi & Yuneswaran remains an unresolved issue — perhaps to be fought another day, in a different arena. This is an important legal question that must be addressed by the courts, as uncertainty remains as to whether a "proportionate" restriction can be said to be valid despite it being unreasonable (i.e. without justification)?

In the absence of an answer, this absurd scenario very well remains a possible reality.

Fixing the Rest of the PAA

While this decision is a major step, there’s more work to be done. The Bar and civil society organisations have flagged several other issues in the PAA. We highlight two glaring ones as follows.

1) Age Requirement (Section 4 PAA)

Only citizens aged 21 years and above can lawfully organise an assembly. Non-compliance would otherwise result in a RM10,000 maximum fine. Why can't an 18-year-old, a university student perhaps, hold a rally when she already has the right to vote and to even contest in elections? This provision needs an update.

2) Role of the Police (Section 15)

This section gives the police power to "impose restrictions and conditions on an assembly", including the time and place and conduct of an assembly. While these powers appear administrative, they can be used to deny assemblies altogether, by disallowing key public locations or any other obstructive conditions.

A more rights-affirming approach would be to reframe the role of the police from gatekeepers to facilitators. People should be allowed exercise their freedom to assembly in public places freely, and the police should be working with organisers to allow it to happen smoothly, unless there exists a legitimate public order and safety concern. However, this provision pits the police against organisers by default.

How Far We've Come

In all fairness, the PAA was a big leap forward for the freedom of assembly when it was enacted. Previously, a permit to hold an assembly was required under the Police Act 1967, or else to jail you go.

In 2019, amendments have been made to the PAA to strengthen the right to assemble, notably:

• The prohibition of street protests / "assemblies in motion" was repealed.

• The 10-day notice requirement was reduced to five (which has now been decriminalised).

Every update to the PAA, including the recent Federal Court decision, has thus far been towards the direction of affirming the freedom of assembly. We have progressed far ahead of many countries that still require a permit to assemble.

With the government tabling amendments to the PAA next month, one hopes that the positive trajectory will continue. One can never tell these days... In a month’s time, we’ll know whether the spirit of Reformasi still flickers — or if it is well and truly dead.

But regardless of the government's posture, this saga serves as a reminder that constitutional challenges like this require the vigilance on the use (or misuse) of the law as well as the exercise of statutory powers — and more importantly the courage to act when the need arises, regardless of the political climate at the time. The protection and advancement of fundamental liberties is a responsibility we bear, both as lawyers and Malaysians.

A Fitting Legacy

Striking down section 9(5) PAA was not just a tidy act of legal housekeeping. It was a bold and principled declaration — a reaffirmation of the Courts' role as a custodian of constitutional rights in a functioning democracy.

Her Ladyship is a legend. She left the Bench not with quiet retreat, but with a bold affirmation of fundamental liberties enshrined in our Constitution, just as she had done consistently throughout her tenure.

No other Chief Justice in recent memory has defended the Federal Constitution with such clarity and courage. In her own words:

"The Constitution is not just a mere collection of words. It is a blueprint as much as it is a living reminder of our history."

In reminding us of that, she didn’t just close a chapter — she sealed a legacy.

Read the full Grounds of Judgment of the Federal Court here:

Final Grounds of Judgment Amir Hariri 1 Jul 2025 sign.pdf

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