Counsel Gurdial Singh Nijar, representing Muda secretary-general Amir Hadi in a constitutional challenge against the provision, argued that the section had become a legal conundrum for his client.
The submission was made before a five-member bench chaired by Chief Justice Tengku Maimun Tuan Mat and Justices Abang Iskandar Abang Hashim, Nallini Pathmanathan, Rhodzariah Bujang and Nazlan Ghazali.
Section 9(5) of the Peaceful Assembly Act criminalises an organiser’s failure to provide the police with five days’ prior notice before holding an assembly.
In Amir’s case, he was charged with failing to notify the police five days before a gathering was held in Kuala Lumpur on Aug 14, 2022.
The gathering, which drew around 200 participants, called for the removal and prosecution of ministers allegedly responsible for the failure of the littoral combat ship project.
“Before the Peaceful Assembly Act, peaceful assemblies were governed by Section 27 of the Police Act 1967, which clearly gave the police authority over the issuance of permits to assemble.
“But all that changed in 2012 when the government recognised that such control did not align with democratic principles.
“The intent was to facilitate peaceful assembly. Yet, we now have Section 9(5), which criminalises organisers — even if the assembly is lawful and ends peacefully — simply for failing to provide advance notice,” Gurdial argued.
The Peaceful Assembly Act replaced Section 27 of the Police Act in 2012, effectively removing the requirement for police permits for public gatherings.
However, it introduced a requirement for organisers to notify the district police chief five days before a public assembly.
Gurdial contended that there was no constitutional justification for criminalising organisers who failed to submit the notice, and that imposing such a precondition undermined the right to peaceful assembly.
“There is no constitutional need to criminalise organisers who don’t give notice,” he stressed.
“The conundrum is that Amir walks out of this court wondering where he went wrong? The assembly was lawful, it ended peacefully, and then the police came and said, ‘You have committed a crime’.
“The only solution is to strike down Section 9(5). Then, it is for the legislature to decide how to balance public order and safety. But whatever way envisaged, it must be constitutional.”
Deputy public prosecutor Iskandar Ahmad defended the said provision, stressing that it did not violate the constitution.
“Section 9(5) is a proportionate restriction. The notice is required to allow authorities to facilitate the assembly. It does not prohibit peaceful assembly,” he said.
The court reserved its judgment and will deliver its decision at a later date.
In August last year, the High Court allowed Amir’s application to refer two constitutional questions to the Federal Court regarding the charge against him for organising the 2022 rally.
The questions touched on whether Section 9(5) of the Peaceful Assembly Act 2012 violates the right to freedom of assembly enshrined in the Federal Constitution.