Amir Hariri bin Abd Hadi v Public Prosecutor [2025] 4 MLJ 807

1. Introduction 

The case of Amir Hariri bin Abd Hadi v Public Prosecutor [2025] 4 MLJ 807 concerned the constitutionality of Section 9(5) Peaceful Assembly Act 2012 (the PAA). The applicant in this case challenged the constitutionality of Section 9(5) of the PAA 2012 for criminalizing assembly organizers who failed to provide notice to the Officer in Charge of the Police District (OCPD) within 5 days before the rally. The Federal Court on July 1st 2025 declared Section 9(5) of the PAA 2012 unconstitutional for being inconsistent with Article 10(2)(b) of the Federal Constitution (FC), limitations right to peaceful assembly. The significance of the Federal Court’s decision marks a new legal position for the future rights of assembly in Malaysia. 

2. Facts of the Case 

Applicant in this case, Amir Hariri is a member of a political party organized a public rally to protest a contract awarded by the Ministry of Defence to a certain corporation which he alleged the contract was never performed. The rally was held in Kuala Lumpur at the Sogo Complex at Jalan Tuanku Abdul Rahman on August 14th 2022, attended by some 60 individuals and ended peacefully. However, 12 days later he was charged by the Magistrates’ Court under Section 9(5) of the PAA 2012 for failing to notify the Officer in Charge of the Police District with the five day notice before the rally, as required under Section 9(1) of the PAA 2012. The applicant challenged the constitutionality of Section 9(5) of the PAA 2012 and the case was later brought to the Federal Court. 

The Federal Court in this case departed from previous Court of Appeal decisions by resolving the conflict over the constitutionality of Section 9(5) of the PAA 2012. The Federal Court overruled Public Prosecutor v Yuneswaran a/l Ramaraj [2015] 6 MLJ 47 which had upheld the constitutionality of the same provision and declared that “it shall have no value as judicial precedent”. On the other hand, the Federal Court agreed with the decision in Nik Nazmi bin Nik Ahmad v Public Prosecutor [2014] 4 MLJ 157 which declared Section 9(5) of the PAA 2012 unconstitutional. 

3. Legal Issues and Arguments 

There were three issues discussed by the Federal Court. The first issue is whether Section 9(5) of the Peaceful Assembly Act 2012 was unconstitutional for being inconsistent with Article 10(2)(b) of the Federal Constitution read together with Article 8(1) of the Federal Constitution. Second, the court discussed whether the conflicting decisions of the Court of Appeal in Nik Azmi bin Nik Ahmad v Public Prosecutor [2014] 4 MLJ 157 and Public Prosecutor v Yuneswaran a/l Ramaraj [2015] 6 MLJ 47 should be resolved. Lastly, the third issue discussed is whether Section 9(5) of the Peaceful Assembly Act 2012 violated the right of freedom of speech guaranteed under Article 10(1)(a) of the Federal Constitution. 

The applicant argued that the limitations of Section 10(1)(b) of FC by Section 9(5) of the PAA was disproportionate. He argued the provision discriminates as it only punishes organizers of the assembly and it discourages urgent assemblies due to fear of prosecution for failing to provide notice within 5 days. He also argued that the decision in Nik Azmi bin Nik Ahmad v Public Prosecutor [2014] 4 MLJ 157 was correctly decided. 

Meanwhile, the public prosecutor argued that Section 9(5) of the PAA 2012 is a restriction not a prohibition and further upheld the decision in Public Prosecutor v Yuneswaran a/l Ramaraj [2015] 6 MLJ 47. He also argued that this provision acts as a deterrence and is necessary to maintain safety during assembly. 

4. Court’s Decision and Reasoning 

The Federal Court states although Article 10(2)(b) of the Federal Constitution allows Parliament to impose limitations on the right to peaceful assembly, such restrictions must satisfy the proportionality test under Article 8(1) of the Federal Constitution. Relying on Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333, Public Prosecutor v Azmi bin Sharom [2015] 6 MLJ 751, and Alma Nudo Atenza v Public Prosecutor and another appeal [2019] 4 MLJ 1, the court held that any legislation limiting fundamental liberties must be objectively fair and proportionate to its aim. Therefore, the court examined whether Section 9(5) the PAA 2012 imposed a necessary and reasonable restriction or whether it went beyond what was required to achieve public order. 

The Federal Court held that Section 9(5) PAA 2012 failed the proportionality test because first, the provision criminalized organizers albeit assembly was peaceful, indicating liability was imposed solely based on failure to provide notice. In addition, Section 9(5) PAA 2012 only criminalized organizers despite participants also participating in the same rally, illustrating that such unequal treatment lacked sufficient justification. Moreover, the 5 day notification requirement restricted urgent assemblies as organizers responding to unforeseen public issues would be put at risk of liability if they proceeded without notice. The Court further held that the provision created a ‘chilling effect’ as the fear of criminal punishment discourages individuals from organizing assemblies. Lastly, Section 9(5) the PPA 2012 had no sufficient connection with public order due to the fact that the police already had powers to deal with disorder under the same act and the Penal Code. 

Furthermore, the Federal Court held that Section 9(5) the PAA 2012 was not a restriction but a prohibition of the right to organize peaceful assemblies. The court distinguished between a restriction, which governs how a right is exercised, and a prohibition, which prevents or forbids the exercise of the right itself. Since Section 9(5) the PAA 2012 proven to deter individuals from organizing assemblies due to the risk of criminal prosecution, it minimized the exercise of the right to peaceful assembly. Therefore, the provision exceeded the permissible limitation of Article 10(2)(b) of FC, which only allows reasonable restrictions and not a complete denial or restraint of fundamental liberties. 

5. Critical Analysis and Conclusion 

First of all, it may be argued that the Court’s decision may reduce compliance to provide notice within 5 days as required by Section 9(1) of the PAA 2012 overall reducing the effectiveness of the provision. By removing criminal penalties as stated in Section 9(5) of the PAA 2012, the consequences for not adhering to the notification requirement would be unclear thereby most likely will reduce the likelihood of organizers adhering the law. On top of it, it limits the authorities ability to make adequate preparations in ensuring safety and crowd control during the rally. Furthermore, the decision may also create uncertainty regarding how Section 9(1) of the PAA 2012 should be enforced thus further creating complications for the authorities to guarantee compliance with the notification requirement. 

On the contrary, it is arguable that the decision of this case is a good decision as it protects fundamental rights, the right to peaceful assembly under Article 10(1)(b) of FC. By nulling Section 9(5) the PAA 2012, the court prevented the law from creating a ‘chilling effect’ where individuals might avoid exercising their constitutional right due to fear of prosecution. To add, the decision also reinforces the principle of constitutional supremacy under Article 4(1) of FC, as any law that is inconsistent with the Federal Constitution is void.

Moreover, the decision also promotes the doctrine of proportionality by emphasizing that limitations on fundamental liberties must be justified and not excessive. Application of doctrine of proportionality is immensely important and must be thoroughly applied according to the steps as in to ensure limitations on fundamental rights are to an extent that does not deprive people of their rights. 

Lastly, by rendering Section 9(5) of PAA 2012 void, it removes the ‘chilling effect’ thus strengthening people’s confidence of their right to assembly under Section 10(1)(b) of FC. In my point of view, a democratic society progresses through the ability of individuals to express disagreement, voice concerns, and challenge existing practices and an assembly is a form of platform to do so. Thus, protecting the right to peaceful assembly facilitates people’s voices to be heard, particularly in cases where their concerns have not been receiving sufficient attention. For example, many instances in history such as the 2026 “ICE Out” rally in the United States, the 2025 Nepalese Gen Z rally and many more has proven that public assemblies have become an important platform for the public to raise their voice. Hence, limitations on peaceful assembly should not be taken lightly as a wrong step might affect a healthy democracy. 

In a nutshell, the decision in Amir Hariri bin Abd Hadi v Public Prosecutor [2025] 4 MLJ 807 is significant and will continue to affect the future of peaceful assembly in Malaysia. The decision of nulling Section 9(5) of the PAA 2012 may further encourage Malaysians to participate in peaceful assemblies without fear of prosecution therefore promotes healthy democracy. Additionally, this case highlights the importance of the judiciary in maintaining constitutional supremacy on top of serving as a reminder that fundamental rights should always be protected.

6. References and Footnote(S):

Cases 

1. Alma Nudo Atenza v Public Prosecutor and another appeal [2019] 4 MLJ 1 (Federal Court of Malaysia) 
2. Amir Hariri bin Abd Hadi v Public Prosecutor [2025] 4 MLJ 807 (Federal Court of Malaysia) 
3. Nik Nazmi bin Nik Ahmad v Public Prosecutor [2014] 4 MLJ 157 (Court of Appeal of Malaysia) 
4. Public Prosecutor v Azmi bin Sharom [2015] 6 MLJ 751 (Federal Court of Malaysia)
5. Public Prosecutor v Yuneswaran a/l Ramaraj [2015] 6 MLJ 47 (Court of Appeal of Malaysia) 
6. Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333 (Federal Court of Malaysia) 

Statutes 

1. Federal Constitution, 1957, Article 4(1). 
2. Federal Constitution, 1957, Article 8(1). 
3. Federal Constitution, 1957, Article 10(1)(a). 
4. Federal Constitution, 1957, Article 10(1)(b). 
5. Federal Constitution, 1957, Article 10(2)(b) 
6. Peaceful Assembly Act 2012, Section 9(1). 
7. Peaceful Assembly Act 2012, Section 9(5).