On 1st July 2025, a 5-member Federal Court bench (lead by the Chief Justice), struck down Section 9(5) of the Peaceful Assembly Act 2012 (“PAA“) for being in breach of the freedom of assembly guaranteed under Article 10(1)(b) of the Federal Constitution.
Briefly, Section 9(5) of the PAA criminalizes an organiser of a peaceful assembly if he/she fails to give notice to the police 5 days before the assembly.
In summary, the apex court decided as follows:
1. As the law stands today, any legislation passed by Parliament which restricts fundamental liberties must, among others, be “objectively fair and proportionate to the aim and reasons for those restrictions”. This is the doctrine of proportionality which has long been established by the Federal Court in Azmi Sharom in 2015 & subsequently in Alma Nudo in 2019. The Court was minded to say that this doctrine is “not a means of judicial legislation” – it does not “involve Judges sitting on the Bench and deciding what laws they like and do not like; nor does it involve a subjective review by Judges of the desirability or popularity of any legislation”. Instead, the doctrine is derived from the equality and equal protection clause in Article 8(1) of the Federal Constitution, which advocates for a “substantive limit against the power of Parliament to legislate as it pleases under the guise of valid legislative restrictions of fundamental liberties”.
2. An organiser who fails to give notice of an assembly can be criminally charged even if the assembly takes place and ends peacefully. Hence, Section 9(5) “discriminates the organiser against the gatherers of his or her assembly who commit no offence while the organiser is guilty of one”.
3. There is further no nexus between Section 9(5) and the legitimate aim in Article 10(2)(b) of the Federal Constitution to preserve public order & security. This is because an organiser is still liable with a criminal offence under Section 9(5), even if the assembly was conducted peacefully and even when it ends peacefully.
4. Moreover, Section 9(5) imposes a “prohibition” instead of a mere “restriction” of fundamental liberties. It is accepted that Parliament can impose “restrictions” regarding the exercise of fundamental rights. However, by stark contrast, a “prohibition” is a total denial of a given right. In this regard, Section 9(5) has qualities of a “prohibition” because urgent assemblies shorter than the 5-day notice can never be held under any circumstances. Further, while people who attend the said assembly can suffer no criminal action for attending without notice, the organiser remains liable to a criminal charge, resulting in a “chilling effect on all organisers who are discouraged from ever organising such assemblies for fear of prosecution for a lack of notice”.
5. For all the above reasons, Section 9(5) fails to comply with the doctrine of proportionality, and was struck down by the Federal Court as null & void.
Our Lim Wei Jiet & Nevyn Vinosh Venudran acted for the Clooney Foundation for Justice & Suara Rakyat Malaysia (SUARAM) as amici curiae, where we provided submissions to the Federal Court on the jurisprudence globally & across the common law relating to freedom of assembly cases.
Notably, in the grounds of judgment, Chief Justice Tun Tengku Maimun acknowledged & adopted the amici curiae‘s submissions as follows:
“[79] In this assessment, we are convinced in particular by the argument advanced by counsel for the amici curiae, The Clooney Foundation For Justice and Suaram. In his assessment of proportionality in international jurisprudence and which our constitutional law reflects, the existence of less intrusive legislative measure or restrictions though not entirely dispositive on constitutionality, is an important consideration in adjudging the proportionality of that measure or restriction.
[80] In other words, if less intrusive measures are available to Parliament to restrict the right in question, the fact that the more intrusive measure was used points to disproportionality.
[81] In this regard, learned counsel Lim Wei Jiet referred to the judgment of the Constitutional Court of South Africa in Mlungwana and Others v S and Another [2018] ZACC 45 (‘Mlungwana’) in holding as follows:…”
In case of Mlungwana referred to in the judgment, whereby a similar provision as Section 9(5) was struck down, the South African Constitutional Court took into account various less restrictive means other than criminal sanctions to incentivize the giving of a notice of an assembly to authorities. These are: (a) such notice assures the conveners that the police cannot restrict the protest; (b) imposition of civil liability for riot damage that follows from a failure to take reasonable steps to prevent the damage (which includes giving notice); (c) the existing common law and statutory crimes regarding public disruption and violence; (d) enhanced civil liability for conveners who fail to give notice; (e) administrative fines; and (f) amending the definition of an assembly such that notice is only required when police presence will be necessary.
In ruling so, the Federal Court has provided authoritative guidance on how to apply the doctrine of proportionality i.e. in weighing whether an impugned law has satisfied the doctrine of proportionality, the Courts can take into account whether “less intrusive measures are available to Parliament to restrict the right in question“. This opens up a new dimension of analysis to the long-established doctrine of proportionality in Malaysia. This further indirectly compels Parliament to reconsider whether there are less intrusive measures to restrict fundamental liberties before passing legislation on the same, less it be struck down by the Courts.
The full grounds of judgment can be accessed here.
