PETALING JAYA: The Federal Court’s ruling that it is unconstitutional to criminalise protest organisers for failing to notify the authorities is a vital development for democracy, say activists.
Amir Hariri Abd Hadi, who challenged the constitutionality of Section 9(5) of the Peaceful Assembly Act 2012 (Act 736) in the apex court, said the landmark decision upheld the spirit of the Federal Constitution.
“It recognises that punishing peaceful organisers just for not giving notice goes against the spirit of the Constitution,” said the executive director of Mandiri, a youth movement working on civil rights and democratic participation.
Describing the court’s decision as a sign of progress, he said more must be done as far as reforms are concerned, as far as civil society groups are concerned.
“We are very open to working with the government. There are important concerns like the length of notice, how spontaneous assemblies are handled and how the police should facilitate and not obstruct peaceful gatherings.
“The process must be transparent and involve real public input,” said Amir, who resigned as Muda secretary-general in June.
On July 1, the Federal Court ruled that Section 9(5) was unconstitutional.
The decision was delivered in a constitutional challenge brought by Amir Hadi, who was charged with failing to provide notification to the police ahead of a protest organised in August 2022 in front of the Sogo shopping complex in Kuala Lumpur.
The provision criminalised acts of organisers of peaceful assemblies who failed to notify police five days in advance, even if the assembly remained peaceful.
The court ruled that such punishment was disproportionate and infringed on the right to peaceful assembly guaranteed under Article 10 of the Federal Constitution.
Clause 9(5) stipulates that an organiser can be slapped with a fine of not more than RM10,000 for failure to notify the police, five days before the gathering.
The ruling followed years of criticism from civil society and human rights organisations which called for the repeal of Section 9(5) and other restrictive provisions in the Act.
Parti Sosialis Malaysia deputy chairman S. Arutchelvan said former prime minister Datuk Seri Najib Razak should be credited for introducing Act 736 and Tun Dr Mahathir Mohamad commended for reducing the 10-day notice requirement to five.
“The recent court ruling made it better. The current Madani government has put a moratorium on the requirement to inform premises owners,” he said.
However, he said there are still weaknesses in Act 736, such as the right to protest not being accorded to children and foreigners.
“What if migrant workers are exploited?” he said.
Former Human Rights Commission of Malaysia (Suhakam) commissioner Jerald Joseph said he was satisfied with the government’s plans to improve protest rights in Malaysia.
“This is in tandem with minimum universal human rights standards. But it took a long time to get here,” he said, adding that the proposed amendments to the Act will give true meaning to the right of the people to assemble peacefully.
In February, Prime Minister Datuk Seri Anwar Ibrahim said the Peaceful Assembly Act 2012 will be amended during this parliamentary session.
He assured that the government will remove the problematic Section 11 which had been an obstacle to protests as it required the consent of the owner or occupier of the place of assembly.
He said the Cabinet had imposed a moratorium on prosecutions under Section 9(5) as an initial step towards comprehensive reform of laws on the right to protest.
Home Minister Datuk Seri Saifuddin Nasution Ismail said earlier this month that the ministry will table amendments to Section 11 of Act 736 in the current parliamentary session.
