Amir Hariri Abd Hadi v Public Prosecutor (FC)

• Case Name: Amir Hariri Abd Hadi v Public Prosecutor (FC)
• Court: Federal Court, Putrajaya
• Citation: [2025] 5 MLRA 395
• Date of Judgment: 1 July 2025
• Coram: Tengku Maimun Tuan Mat CJ, Abang Iskandar Abang Hashim PCA, Nallini Pathmanathan and Rhodzariah Bujang FCJJ, and Mohd Nazlan Mohd Ghazali JCA
• Relevant Provisions: Sections 9(1) and 9(5) of the Peaceful Assembly Act 2012 (Act 736); Articles 4(1), 8(1), 10(1)(a), 10(1)(b), 10(2)(a) and 10(2)(b) of the Federal Constitution

01. Introduction

The case of Amir Hariri Abd Hadi v Public Prosecutor¹ fundamentally redefined the boundaries of state power in regulating public gatherings and protests. This judgment is historically significant because it firmly reaffirmed the place of the doctrine of proportionality in the evaluation of statutory restrictions on fundamental liberties. The central controversy involved a direct clash between the administrative requirements of the Peaceful Assembly Act 2012² and the constitutional guarantees provided under the Federal Constitution.³ By invalidating the penal sanctions for failing to notify the police of a peaceful assembly, the Federal Court prioritised constitutional supremacy over disproportionate legislative restrictions.

02. Facts of the Case

The background of this constitutional challenge is rooted in a political demonstration held in the capital city. On 14 August 2022, the Applicant, Amir Hariri Abd Hadi, organised a public rally at the Sogo Complex in Kuala Lumpur. The primary objective of this assembly was to protest publicly against a specific contract that had been awarded by the Ministry of Defence. The event itself was relatively modest in scale, attended by approximately 60 individuals, and it is an undisputed fact that the assembly concluded entirely peacefully without any untoward incidents.

Despite the peaceful nature of the gathering, legal repercussions swiftly followed. On 26 August 2022, the authorities formally charged the Applicant under Section 9(5) of the Peaceful Assembly Act 2012. This specific penal provision criminalises the failure of an organiser to notify the officer in charge of the police district at least five days before an assembly, a duty established under Section 9(1) of the same Act. Notably, the Applicant was the sole individual targeted by the prosecution; no other attendees or participants were charged with any offence.

In response to this criminal charge, the Applicant initiated a constitutional challenge. He asserted that Section 9(5) was void under Article 4(1) of the Federal Constitution because it infringed the right to peaceful assembly guaranteed under Article 10(1)(b) and the right to equal protection housed in Article 8(1). The constitutional reference ultimately ascended to the Federal Court to resolve two conflicting Court of Appeal precedents: Nik Nazmi Nik Ahmad v Public Prosecutor,⁴ which had previously declared Section 9(5) unconstitutional, and the subsequent case of Public Prosecutor v Yuneswaran Ramaraj,⁵ which had upheld the validity of the provision.

03. Legal Issues and Arguments

The Federal Court was tasked with resolving two core legal issues arising from the constitutional reference. The first was a procedural question concerning the doctrine of stare decisis. Specifically, the Court had to determine whether the Court of Appeal in Yuneswaran had erroneously defied stare decisis by departing from its own prior, binding ruling in Nik Nazmi. The second, more substantive issue centred on constitutionality and proportionality. The Court was asked to evaluate whether Section 9(5) of the Peaceful Assembly Act 2012 constituted an unconstitutional restriction on the fundamental right to peaceful assembly under Article 10(2)(b) when read conjunctively with the equality and proportionality guarantees of Article 8(1) of the Federal Constitution. The reference also posed a further question on whether Section 9(5) was inconsistent with Article 10(2)(a), which concerns freedom of speech and expression; the Court found it unnecessary to answer that question.

The arguments advanced by both parties highlighted starkly contrasting views on the balance between state security and civil liberties. The Applicant contended that Section 9(5) was fundamentally flawed because it failed the test of proportionality and was harsh and oppressive. By imposing criminal liability for the failure to give notice, the legislature had essentially transformed a conditional administrative requirement into a blanket prohibition. The Applicant argued that this punitive approach generated a severe chilling effect on the fundamental right to assemble, effectively deterring citizens from exercising their constitutional freedoms. Furthermore, on the procedural front, the Applicant emphasised that Yuneswaran was decided per incuriam because it unlawfully ignored the reasonableness test that had been prescribed earlier by the Federal Court in Sivarasa Rasiah v Badan Peguam Malaysia & Anor.⁶

Conversely, the Respondent presented a case rooted in public order and institutional necessity. The prosecution maintained that Section 9(5) served the legitimate legislative aim of preserving public order and the security of the Federation. The Respondent argued that the criminal sanction was a necessary mechanism to ensure that the police were adequately notified, thereby allowing them to take necessary protective action during public gatherings. Addressing the stare decisis conflict, the Respondent asserted that the Court of Appeal in Yuneswaran correctly departed from Nik Nazmi. They argued that any conflicting jurisprudence was definitively resolved when the Federal Court subsequently rejected the reasonableness test from Sivarasa in Public Prosecutor v Azmi bin Sharom.⁷

04. Court’s Decision and Reasoning

The Federal Court delivered a unanimous and decisive judgment that struck down the impugned provision. Before addressing the substantive constitutional violations, the Court briefly considered the procedural dispute regarding stare decisis, but opted not to delve deeply into the technical dispute between the two Court of Appeal decisions. The bench noted that both Nik Nazmi and Yuneswaran had been largely superseded by subsequent apex court rulings, making the procedural conflict effectively moot.

The crux of the Court’s reasoning relied heavily on the integration of Article 8(1) and Article 10 of the Federal Constitution. The Court acknowledged that while Parliament retains the power to restrict fundamental liberties in the interest of public order, these restrictions are subject to strict constitutional balancing.⁸ The Federal Court reiterated and solidified the principle that the doctrine of proportionality, housed in Article 8(1), applies rigorously to any legislative restrictions enacted under Article 10(2), building on its earlier decisions in Azmi Sharom and Alma Nudo Atenza v Public Prosecutor, while treating the reasonableness test from Sivarasa as no longer applicable.⁹ This aligns with recent shifts in Malaysian jurisprudence, where courts have increasingly embraced the proportionality doctrine to evaluate state actions that infringe upon constitutional rights.¹⁰

Applying this strict proportionality test, the Court found Section 9(5) to be a disproportionate and discriminatory legislative measure. The Court observed a critical flaw in the statutory design. By singling out the organiser for criminal prosecution while attendees face no legal consequences, even when an assembly ends entirely peacefully, the law failed to demonstrate a rational nexus to preserving public order. The justices reasoned that if an assembly is peaceful, punishing its organiser purely for an administrative lapse does not serve the interests of national security. Consequently, the Court found that Section 9(5) operated in effect as a disguised blanket prohibition, unconstitutionally punishing the very act of exercising a guaranteed constitutional right.

In its final decision, the Federal Court ruled in favour of the Applicant. The Court declared Section 9(5) of the Peaceful Assembly Act 2012 null, void and unconstitutional for being a disproportionate incursion into the right to peaceful assembly guaranteed under Article 10(1)(b) of the Federal Constitution. As a direct consequence, the Court affirmed the earlier progressive ruling in Nik Nazmi and explicitly overruled the restrictive decision in Yuneswaran. The case was remitted to the High Court for further proceedings, with no order made as to costs given its status as public interest litigation.

05. Critical Analysis

The Federal Court’s judgment in Amir Hariri Abd Hadi v Public Prosecutor stands as a defining moment in the evolution of constitutional law in Malaysia. To appreciate its magnitude fully, one must analyse it through the lenses of statutory interpretation, the proportionality doctrine, and its broader impact on democratic participation. This decision signals a robust judicial willingness to scrutinise parliamentary enactments that encroach upon civil liberties.

A critical strength of the judgment is the Court’s analytical distinction between a permissible restriction and an unconstitutional prohibition. Under Article 10(2)(b) of the Federal Constitution, Parliament is authorised to impose restrictions on the right to assemble if it deems them necessary or expedient in the interest of the security of the Federation or public order. However, the Court astutely recognised that Section 9(5) did not merely regulate the manner of assembly but effectively prohibited it under the threat of criminal prosecution. By criminalising the lack of notice, the law arguably outlawed spontaneous or urgent assemblies, a concern pressed by the Applicant before the Court. In a dynamic democratic society, political responses to immediate events often cannot wait for a five-day notice period. By identifying Section 9(5) as a blanket prohibition masquerading as a regulatory restriction, the Court dismantled the facade of administrative compliance.

Furthermore, the integration of Article 8(1) into the assessment of Article 10 rights is a masterclass in holistic constitutional interpretation. The doctrine of proportionality, which mandates that a legislative measure must not be excessively burdensome in relation to its intended objective, is essential to prevent arbitrary state action. The Court highlighted the discriminatory nature of Section 9(5), which imposes liability exclusively on the organiser. In a peaceful gathering of some sixty people, it defies logic and justice that the attendees exercise their constitutional rights lawfully, while the single individual who convened them becomes a criminal. This arbitrary bifurcation of liability clearly violates the equal protection guarantee of Article 8(1). The Court correctly observed that this discriminatory targeting lacks any rational nexus to the preservation of public order.

The decision also remedies the chilling effect that Section 9(5) cast over civil society. The constant threat of criminal sanctions forces potential organisers to self-censor and refrain from initiating public discourse. The right to assemble peaceably is a core component of civil liberties in Malaysia, originally embedded to protect basic civil and political safeguards.¹¹ This historical grounding reminds us that the framers of the Constitution intended for these liberties to serve as a bulwark against executive overreach. The removal of this penal threat breathes life into the democratic process, ensuring that citizens can congregate, protest, and express grievances without the looming shadow of criminal prosecution and a fine of up to RM10,000.

While the judgment is overwhelmingly positive for human rights advocates, it does present certain challenges for law enforcement. The police rely on advance notice to deploy resources, manage traffic, and prevent clashes between rival factions. Section 9(1) itself was not challenged and remains in force, but by invalidating its punitive enforcement mechanism, the authorities may face difficulties in compelling organisers to engage in pre-emptive dialogue. Nevertheless, the Constitution does not prioritise administrative convenience over fundamental liberties. The state retains alternative, less intrusive means to manage public assemblies, such as imposing civil liability or addressing actual acts of violence under the Penal Code, rather than punishing the administrative failure to give notice.

06. Conclusion

In conclusion, the Federal Court has delivered a courageous and legally rigorous judgment that reclaims the constitutional space for public dissent. The ruling definitively resolves years of judicial inconsistency, invalidating the regressive stance taken in Yuneswaran and vindicating the principles established in Nik Nazmi. By striking down Section 9(5) of the Peaceful Assembly Act 2012, the judiciary has sent an unequivocal message: the right to peaceful assembly is not a mere privilege granted by the state subject to strict bureaucratic conditions, but an enduring and fundamental constitutional guarantee.

Note(S):

¹ Amir Hariri Abd Hadi v Public Prosecutor [2025] 5 MLRA 395 (FC).

² Peaceful Assembly Act 2012 (Act 736), ss 9(1) and 9(5).

³ Federal Constitution of Malaysia, arts 4(1), 8(1), 10(1)(b) and 10(2)(b).

⁴ Nik Nazmi Nik Ahmad v Public Prosecutor [2014] 4 CLJ 944 (CA).

⁵ Public Prosecutor v Yuneswaran Ramaraj [2015] 6 MLJ 47 (CA).

⁶ Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333 (FC).

⁷ Public Prosecutor v Azmi bin Sharom [2015] 6 MLJ 751 (FC).

⁸ G. K. M. Ng et al., ‘Rights of Online Peaceful Assembly in Malaysia’ (2022) Proceedings of the International Conference on Law and Digitalization 151, 155.

⁹ Amir Hariri Abd Hadi v Public Prosecutor (n 1) [55]–[58]; Public Prosecutor v Azmi bin Sharom (n 7); Alma Nudo Atenza v Public Prosecutor & Another Appeal [2019] 5 CLJ 780; [2019] 4 MLJ 1 (FC).

¹⁰ B. J. Ong, ‘How Can Malaysian Courts Consistently Perform Meaningful Constitutional Rights Review? Lessons from Past Cases and the Way Forward’ (2024) SSRN Electronic Journal 12.

¹¹ J. M. Fernando & S. Rajagopal, ‘Fundamental Liberties in the Malayan Constitution and the Search for a Balance, 1956–1957’ (2017) 13 International Journal of Asia Pacific Studies 1, 15.

Reference(S):

Cases

• Alma Nudo Atenza v Public Prosecutor & Another Appeal [2019] 5 CLJ 780; [2019] 4 MLJ 1 (FC)
• Amir Hariri Abd Hadi v Public Prosecutor [2025] 5 MLRA 395; [2025] 4 MLJ 807; [2025] 7 CLJ 353 (FC)
• Nik Nazmi Nik Ahmad v Public Prosecutor [2014] 4 CLJ 944; [2014] 4 MLJ 157 (CA)
• Public Prosecutor v Azmi bin Sharom [2015] 6 MLJ 751; [2015] 8 CLJ 921 (FC)
• Public Prosecutor v Yuneswaran Ramaraj [2015] 6 MLJ 47; [2015] 9 CLJ 873 (CA)
• Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333; [2010] 3 CLJ 507 (FC)

Legislation

• Federal Constitution of Malaysia, arts 4(1), 8(1), 10(1) and 10(2)
• Peaceful Assembly Act 2012 (Act 736), ss 9(1) and 9(5)

Secondary Sources

• Fernando, J. M., & Rajagopal, S. (2017). Fundamental liberties in the Malayan Constitution and the search for a balance, 1956–1957. International Journal of Asia Pacific Studies, 13(1), 1–28. https://doi.org/10.21315/ijaps2017.13.1.1
• Ng, G. K. M., Lau, J. E. L., Chin, F. N. O., & Tay, E. S. (2022). Rights of online peaceful assembly in Malaysia. Proceedings of the International Conference on Law and Digitalization (ICLD 2022), 151–163. https://doi.org/10.2991/978-2-494069-59-6_14
• Ong, B. J. (2024). How can Malaysian courts consistently perform meaningful constitutional rights review? Lessons from past cases and the way forward. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.4885150