Section 9(5) of the Peaceful Assembly Act 2012 is unconstitutional as it disproportionately restricts the right to peaceful assembly, violating Article 10(1)(b) of the Federal Constitution.

Introduction

[1] These proceedings concern the constitutional validity of s 9(5) of the Peaceful Assembly Act 2012 [Act 736] (' PAA 2012')vis-à-vis art 10 of the Federal Constitution ('FC').

[2] As s 9(5) is a criminal provision predicated on the non-performance of a statutorily mandated act under s 9(1) of the PAA 2012, s 9(5) must be read with s 9(1), and they provide:

"Notification of Assembly

9.(1) An organiser shall, five days before the date of an assembly, notify the Officer in charge of the police District in which the assembly is to be held.

(2) ...

(3) ...

(4) ...

(5) A person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit.".

[3] To be clear, the applicant only assails the constitutional validity of the penal provision in s 9(5) that seeks to punish non-compliance with the notification requirement in s 9(1), but he does not otherwise impugn the constitutional validity of s 9(1) itself.

[4] Before we proceed further with this judgment, and for the avoidance of doubt, and unless stated otherwise, any references to 'section(s)' in this judgment shall be taken as referring to the section(s) of the PAA 2012. Likewise, any references to 'Article(s)' in this judgment shall, unless otherwise stated, be construed as references to the Article(s) of the FC.

[5] Clauses (1)(b) and (2)(b) of art 10, against which the validity of s 9(5) is principally called into question, in turn guarantee thus:

Freedom of speech, assembly and association

10. (1) Subject to Clauses (2), (3) and (4):

(a) ...;

(b) all citizens have the right to assemble peaceably and without arms;

(c) ...

(2) Parliament may by law impose-

(a) ....;

(b) on the right conferred by paragraph (b) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof or public order..."

[6] The case advanced by the applicant is that s 9(5) is void under art 4(1) because it violates Clauses (1)(b) and 2(b) of art 10, and that it should accordingly be struck down.

[7] What is uniquely interesting in this case is that the Court of Appeal in a previous decision in Nik Nazmi Nik Ahmad v. PP [2014] 4 MLRA 511 ; [2014] 4 MLJ 157 ; [2014] 4 CLJ 944 ("Nik Nazmi") had already declared s 9(5) unconstitutional for the reasons advanced therein. However, in a later decision in PP v. Yuneswaran Ramaraj [2015] 6 MLRA 559 ; [2015] 6 MLJ 47 ; [2015] 9 CLJ 873 ; [2015] 6 AMR 271 ('Yuneswaran'), the Court of Appeal radically departed from its reasoning in Nik Nazmi and held the complete opposite — that s 9(5) is not unconstitutional.

[8] It must be noted for completeness that s 9 was amended in 2019 vide the Peaceful Assembly (Amendment) Act 2019 [Act A1600] to reduce the notification period in s 9(1) from "ten days" to the presently existing period of "five days". Section 9 (5) remains intact in that a failure to make the notification within the five days is still an offence and punishable in the manner described in that subsection.

[9] As such, and further noted for completeness is that though the aforementioned amendment was made four years after the Court of Appeal decision in Yuneswaran, the amendment itself is of no consequence to the present challenge.

[10] This is because, and at the risk of repetition, what the ap