AMIR HARIRI BIN ABD HADI v Pendakwa Raya [Jabatan Peguam Negara]

Case Significance

Applies proportionality under Articles 8(1) and 10 of the Federal Constitution to hold that the criminal penalty in section 9(5) of the Peaceful Assembly Act 2012 is a disproportionate restriction on the right to peaceful assembly.

This Federal Court decision, delivered on a criminal reference, concerns the constitutional validity of subsection 9(5) of the Peaceful Assembly Act 2012. Subsection 9(1) requires the organiser of an assembly to notify the officer in charge of the relevant police district in advance, and subsection 9(5) makes it an offence, punishable by a fine, to fail to give that notification. The applicant, who had been prosecuted for failing to notify the police, challenged only the penal provision in subsection 9(5), and not the notification requirement in subsection 9(1) itself. The question was whether criminalising the failure to notify is consistent with the right of citizens to assemble peaceably and without arms guaranteed by Article 10(1)(b) of the Federal Constitution, read with the power of Parliament to impose restrictions under Article 10(2)(b), and with the guarantee of equality and the doctrine of proportionality under Article 8(1). Applying a proportionality analysis, the Court considered whether making non-notification a criminal offence was a justified and balanced restriction, or whether it went further than necessary and had a chilling effect by exposing organisers of even peaceful gatherings to prosecution. The Court held that subsection 9(5) was a disproportionate restriction on the right to peaceful assembly and therefore inconsistent with Article 10(1)(b), and it remitted the matter to the High Court to be dealt with according to law. As the proceedings were in the nature of public-interest litigation, no order was made as to costs. The judgment is significant for applying the proportionality doctrine to a criminal penalty attached to the regulation of peaceful assembly, and for the interaction it draws between Articles 4(1), 8(1) and 10 of the Federal Constitution. The decision is an important application of proportionality to the criminal regulation of assembly, confirming that a notification requirement may be preserved while the criminal sanction attached to a failure to notify is struck down as an excessive interference with a constitutional right.