Constitutional Discourse on the Right to Assembly: An Analysis of the the Peaceful Assembly Act 2012

On 15 January 2025, Sekretariat Rakyat Benci Rasuah (SRBR) notified the police about the organisation of the Rakyat Benci Rasuah protest (‘the protest’), which was planned to be held on 25 January 2025. However, the Dang Wangi police chief stated that the organisation of the protest had not complied with the requirements under the Peaceful Assembly Act 2012 (PAA), as the organizers had yet to obtain consent of the occupier of the place of assembly.[i] Furthermore, he warned the public not to participate in a rally that was against the law.[ii] On 2 February 2025, this incident escalated when the police summoned 13 individuals, involved in the protest, including university students, to record their statements concerning the rally held on 25 January.[iii]

In the midst of writing this statement, UMLS acknowledges the effort by the Prime Minister in agreeing to amend relevant portions of the PAA, and halting the investigations towards the individuals involved.[iv] While this matter may seem academic, this discussion remains essential due to its significant public interest in evaluating whether the authorities acted within legal boundaries and as a crucial reminder of the importance of reforming the PAA. Due to the importance of the right of assembly enshrined in our Federal Constitution, the University of Malaya Law Society (UMLS) would like to present our collective stance on this issue from a legal perspective. 

The Rights and Limitations for Right to Assembly

It is acknowledged that the right to assembly is not absolute. Article 10(1)(b) of the Federal Constitution provides that all citizens have the right to assemble peaceably.[v] However, this right is subject to constitutionally permitted restrictions imposed by Parliament on grounds of security and public order.[vi]

In this context, the PAA lays down procedures that must be adhered to when organising a protest, most importantly, including the notification of assembly, as set out in Section 9 of the PAA.[vii]

The controversy here lies in the fact that the chief of police’s claims that the protest is illegal, as it had yet to submit the consent of the occupier of the place of assembly. Section 10, read together with Section 11 of the PAA, necessitates the consent of the owner or occupier of place of assembly in situations where consent is applicable. 

Relevant portions of Section 10 and Section 11 of the PAA are reproduced below:[viii]

Section 10 and Section 10(c)	Section 11
Section 10 The notification made under subsection 9 (1) shall- Section 10(c) (c) be accompanied by a copy of the consent of the owner or occupier of the place of assembly, if applicable;	The organizer of an assembly, other than a religious assembly or a funeral procession or an assembly held at a designated place of assembly, shall obtain the consent of the owner or occupier of the place of assembly for it to be used for the purpose of the assembly.

Validity of the Conditions Imposed by the Chief of Police

The location of the protest was from the road entrance of SOGO Mall (SOGO) to Dataran Merdeka.[ix] On separate occasions, the Chief of Police and the Home Minister, Dato’ Seri Saifuddin Nasution, claimed that the organisers of the protest would require the consent of SOGO, as well as the Kuala Lumpur City Hall (DBKL).[x]

The consent of the owner or occupier of a place of assembly is not a mandatory requirement in all situations, as stated in Section 10(c) of the PAA. Therefore, the ultimate question lies in whether the route of the protest requires consent to be obtained. The UMLS will assess this legal question on two grounds.

Whether SOGO’s approval is a Prerequisite:

The protest started at the road entrance of SOGO, raising uncertainty as the PAA does not clarify whether the occupier consent requirement applies to roads near private property. However, a road is clearly defined as a public place under the harmonious reading of Section 3 of both the PAA and the Road Transport Act 1987.[xi]

Thus, the consent of SOGO’s owners or occupiers is arguably unnecessary, as the place of assembly is legally considered a public area outside SOGO’s occupancy.

At best, there may be an obligation to notify SOGO’s management that there will be a protest held in proximity to their shopping complex. However, that duty, as stated in Section 12 of the PAA, lies within the hands of the Officer in Charge of the Police District, not the organisers. It is still important to note that, even if there are objections from a third party, they cannot restrict someone’s constitutional right to assemble.[xii]

Is Prior Approval from Kuala Lumpur City Hall (DBKL) Mandatory?:

As stated, it is claimed that to protest at Dataran Merdeka, the consent of DBKL is needed. Dataran Merdeka consists of both a main road and a public park, both accessible to the public. Thus, it arguably falls under the definition of public area under Section 3 of the PAA.

Despite this, some assert that DBKL is the owner or occupier of Dataran Merdeka, necessitating organisers to obtain its consent. Section 63 of the Local Governments Act, it is said that the local authority will have general control of public areas. Thus, it is acknowledged that the DBKL has general control of Dataran Merdeka. Moreover, Section 8 of the Local Government (Federal Territory of Kuala Lumpur) By-laws 1992 necessitates approval of the mayor to be obtained before organisation of any assembly at a public area. The power to provide such approval is vested among the mayor, pursuant to Section 9 of the by-laws. Also, one crucial legal point that was overlooked by the authorities was that, if DBKL’s approval is required for a rally at Dataran Merdeka, then by the same reasoning, consent would also be necessary for protests on the public road in front of SOGO, as both locations fall under DBKL’s general control. Therefore, the requirement of DBKL’s serves as the pivotal legal question that either supports or undermines the authorities’ case.

Thus, to answer whether the approval of the DBKL is needed, two legal questions have to be answered, which is firstly, does the general control of DBKL fall within the meaning of owner/ occupier within Section 11 of the PAA?; and secondly, whether conditions of the by-laws are mandatory. 

In addressing the first legal question, an owner is  someone who has the right to use, manage, and enjoy property; meanwhile occupier can be defined as one who has possessory rights in or control over certain property or premises.[xiii] Based on the prima facie joint-reading of the PAA,[xiv] Local Government Act,[xv] and the Local Government (Federal Territory of Kuala Lumpur) By-laws 1992,[xvi] DBKL does have general jurisdiction over public areas.[xvii] However, some argue that spaces like Dataran Merdeka belong to the general public, affirming that no single party holds exclusive ownership over the area.[xviii]

UMLS would like to emphasise that if the local government is ever considered to be the owner or occupier of public spaces, it would set a very dangerous precedent. If DBKL is considered an owner/occupier, every protest in any public space, including roads, sidewalks, and open parks, would require local authority approval, which is absurd and impractical. This ambiguity raises serious concerns about the scope of Section 11 of the PAA, particularly in how it may be applied to public spaces. If public places are subjected to the same consent requirement as private properties, it risks turning an essential right into a privilege dependent on government discretion.

While the right to assembly is not an absolute right, as it is subject to restrictions,[xix] Section 11 of the PAA remains vague and arbitrary in its consent requirement, particularly regarding whether public places necessitate approval from an ‘owner’ or ‘occupier.’ Given the vagueness, this ambiguity should be resolved in favour of fundamental rights. Courts have consistently held that constitutional provisions on fundamental liberties must be construed broadly, while provisions which limit fundamental liberties must be interpreted as narrowly as possible.[xx]

In Tan Teck Seng v Suruhanjaya Perkhidmatan Perkhidmatan, Justice Gopal Sri Ram  affirmed that Article 8(1) of the Federal Constitution,[xxi] which enshrines that the equality doctrine has an ‘all-pervading effect’ that protects citizens against arbitrary barriers in exercising their rights.[xxii] Therefore, until and unless there are express wordings which necessitate the requirement, the right to free assembly cannot be unduly suppressed. 

In line with established principles of constitutional interpretation, Article 10(1)(b) has been given an ‘extended meaning’ by the courts, where the word ‘restrictions’ shall be read with the word ‘reasonable.’[xxiii] Therefore, any restrictions imposed, must not only align with the objective of the law, in maintaining public order and security,[xxiv] but must also be reasonable.[xxv]

Moreover, as affirmed in Public Prosecuter v Azmi Sharom, even if Parliament has full discretion in assessing the reasonableness of the provision, their power is not without its limits, as it still must be subjected to the proportionality test in order to be valid.[xxvi] As articulated in Sivarasa Rasiah v Bandan Peguam Malaysia:[xxvii]

‘… all forms of state action — whether legislative or executive — that infringe a fundamental right must (a) have an objective that is sufficiently important to justify limiting the right in question; (b) the measures designed by the relevant state action to meet its objective must have a rational nexus with that objective; and (c) the means used by the relevant state action to infringe the right asserted must be proportionate to the object it seeks to achieve.’

Applying this test, Section 11 of the PAA should not be interpreted to require occupier consent for rallies in public places as this interpretation is neither reasonable nor proportionate. The fundamental objective of restrictions is for public security and order, and requiring local authority consent for public spaces is not rationally connected to the stated objective. Security concerns are already sufficiently addressed by requiring notification to the police under Section 9 of the PAA. 

In support of this view, R v Chief Constable of Gloucestershire Constabulary, decided that the acts of the police restricting a public assembly was disproportionate as there were less drastic alternatives in ensuring peace and order.[xxviii] In this context, it is important to highlight that the PAA had other alternatives than blatantly imposing a restriction. The chief of police may engage with the organiser of the rally for further discussions, pursuant to Section 13 of the PAA.[xxix] While the organisers of the rally also requested to discuss with the police concerning the rallies, no similar effort was reciprocated on the part of the police.[xxx]

Regarding the second legal question, the power to curtail fundamental liberties lies solely in the hands of Parliament. Thus, while it is argued that the by-laws impose conditions for obtaining consent before organising an assembly, such conditions, if it restricts a person’s fundamental right to hold assemblies, can be deemed unconstitutional.[xxxi]

Executive Inconsistencies, and the Need for Uniform Application of Law 

There are also concerns regarding statements issued by executive members of the government, in support of the police chief’s action. On 21 January 2025, the Home Minister, Dato Seri’ Saifuddin Nasution Ismail, aligned himself with the stance of the Chief of Police, urging the organisers to obtain prior consent from SOGO and DBKL before proceeding with the rally.[xxxii] Similarly, the Communications Minister, Fahmi Fadzil, expressed a  similar stance as well.[xxxiii]

While UMLS acknowledges that the cabinet, led by Prime Minister, Datuk Seri Anwar Ibrahim, declared its support,[xxxiv] and ‘respect for the freedom of assembly guaranteed by the federal constitution’ on 24 January 2025, it is deeply concerning that senior government officials have issued inconsistent legal statements on a whim.[xxxv] Regardless of whether the initial remarks had any legal basis, such contradictions may constitute representations impacting the constitutional rights of individuals.

Moreover, it is highly disappointing that, despite these statements, individuals involved in the rally were still summoned for investigations. This arguably constitutes  a clear breach of their legitimate expectations as top government executives, especially since the Prime Minister and the Minister of Home Affairs had stated their clear approval towards this rally.[xxxvi] Therefore, the executive is legally estopped from pursuing any actions against them.[xxxvii]

Our Stance

Beyond legal arguments, UMLS firmly believes that the right to assemble peaceably is the cornerstone of a functioning democracy, and an essential tool for societal engagement that must be upheld. From the March of Washington which historically altered the status quo of America, to the anti-Malayan Union March which paved the way to our nation’s independence, the right to voice grievances has always been a catalyst for change domestically, and globally. 

While UMLS applauds the effort of the Prime Minister’s commitment in introducing amendments to the PAA,[xxxviii] this effort should not be confined in statements, it must be expressed through clear actions and directives. Therefore, we echo the concerns of the public and key stakeholders that these reforms must be implemented without undue delay and all relevant stakeholders must be meaningfully consulted before any final changes are made.[xxxix] Moreover, amendments must also be made to other legislation to ensure a consistent application of law. 

This freedom must not only be protected by words of the statutes, but it must also be protected in practice. Aside from legislative efforts, the government must also ensure that public authorities act consistently within the boundaries of law and not repeat the practices of issuing legally inconsistent statements or acting arbitrarily without any legal basis.

Therefore, we urge the Madani Government, which firmly believes in upholding fundamental rights,[xl] to seize again the opportunity to demonstrate that they are a shield, and not a barrier towards fundamental liberties. Ultimately, the right to assemble must be safeguarded not merely because the law permits it, but because it is an essential pillar of a thriving democracy. As stated by Lord Denning in Hubbard v Pitt:[xli]

‘The right to demonstrate and the right to protest on matters of public concern are rights which it is in the public interest that individuals should possess; and, indeed, that they should exercise without impediment so long as no wrongful act is done. It is often the only means by which grievances can be brought to the knowledge of those in authority - at any rate with such impact as to gain a remedy. Our history is full of warnings against suppression of these rights.’ 

*We would like to express our sincere appreciation to Sekretariat Rakyat Benci Rasuah (SRBR), Himpunan Advokasi Rakyat Malaysia (HARAM), and Tobey Qi-Sean a/l Arun Prakash for providing us with the essential facts of the instances, which have been invaluable in our analysis and understanding of the matter.

Disclaimer:

The views and opinions expressed in this press statement do not necessarily reflect the official position of the Faculty of Law, Universiti Malaya and Universiti Malaya respectively. For the sake of conciseness, the UM Law Society has only selected a few issues to elaborate on, which may not represent the whole picture of the incident. The UM Law Society only intends to provide our collective view on this issue from an academic legal perspective. 

UM Law Society (UMLS) 24/25

19 February 2025

Email: lawsocietyum@gmail.com

Website: www.umlawsociety.com 

“The Will To Do, The Soul To Dare”

[i]  Tham, Y.L. (2025, 21 Jan). Cops advise against attending rally on Saturday that lacks venue owner’s consent. The Edge Malaysia. Retrieved from <https://theedgemalaysia.com/node/741895> Site accessed on 13 Feb 2025.

[ii] See footnote 1.

[iii] Tobey Qi-Sean a/l Arun Prakash (2025, 3 Feb). Mobilisation Coordinator, Himpunan Rakyat Benci Rasuah. Interview with the University of Malaya Law Society. 

[iv] Malaysia, Parliamentary Debates, Representative, Fifteenth Parliament Session, First Session, 13 February 2025, pp 1-2 (Datuk Seri Anwar Ibrahim).

[v] Article 10(1)(b) of the Federal Constitution.

[vi] See footnote 5.

[vii] Section 9 Peaceful Assembly Act 2012.

[viii] Section 10 and 11 Peaceful Assembly Act 2012.

[ix] FMT Reporters. (2025, 16 Jan). NGOs, student groups to rally against graft in KL on Jan 25. Free Malaysia Today. Retrieved from: <https://www.freemalaysiatoday.com/category/nation/2025/01/16/ngos-student-groups-to-rally-against-graft-in-kl-on-jan-25/>. Site accessed on 13 Feb 2025.

[x] FMT Reporters. (2025, 31 Jan). Saifuddin suggests easing ‘processes’ for peaceful assemblies. Free Malaysia Today. Retrieved from: <https://www.freemalaysiatoday.com/category/nation/2025/01/31/saifuddin-suggests-easing-processes-for-peaceful-assemblies/>. Site accessed on 13 Feb 2025.

[xi] Section 3 of the Peaceful Assembly Act 2012; Section 3 of the Road Transport Act 1987.

[xii] Shad Saleem Faruqi. (n.d.). Article 10 - Freedom of assembly.

[xiii] Garner, B.A. (2019). Definition of “owner” and “occupier”. In B.A. Garner (Ed.) Black’s Law Dictionary (11th. Ed., p. 1345, 1423). Retrieved from <https://www.westlaw.com/>. Site accessed on 13 Feb 2025. 

[xiv] Section 3 and Section 4 of the Peaceful Assembly Act 2012. 

[xv] Section 63 of the Local Government Act 1976.

[xvi] Section 2 of the Local Government (Dataran Merdeka) (Federal Territory of Kuala Lumpur) By-laws 1992.

[xvii] Seraj, Z. (2024, 14 April). Yes, you need DBKL’s consent to rally in Dataran Merdeka, experts say. Malay Mail. Retrieved from: <https://www.malaymail.com/news/malaysia/2024/04/15/yes-you-need-dbkls-consent-to-rally-in-dataran-merdeka-experts-say/126931>. Site accessed on 17 Feb 2025.

[xviii] Nagarajan, R. (2025, 21 Jan). DBKL permission not needed to gather at Dataran Merdeka, says lawyer. Free Malaysia Today. Retrieved from: <https://www.freemalaysiatoday.com/category/nation/2025/01/21/dbkl-permission-not-needed-to-gather-at-dataran-merdeka-says-lawyer/>. Site accessed on 16 Feb 2025.

[xix] See footnote 5.

[xx] CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] MLJU 887, [26]; Letitia Bosman v Public Prosecutor & Ors (No 1) [2020] 5 MLJ 277, [173]; Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301, [13]; Dato Menteri Othman bin baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29, 32.

[xxi] Article 8(1) of the Federal Constitution.

[xxii] [1996] 1 MLJ 261, 282.

[xxiii] [2010] 2 MLJ 333, [30].  

[xxiv] See footnote 22.

[xxv] Dr Mohd Nasir bin Hashim v Menteri Dalam Negeri Malaysia [2006] 6 MLJ 213, [9].

[xxvi] Public Prosecutor v Azmi bin Sharom [2015] 6 MLJ 751, [42]–[43].

[xxvii] See footnote 23, 30.

[xxviii] [2006] UKHL 55, 53.

[xxix] Section 13 of the Peaceful Assembly Act 2012.

[xxx] See footnote 3.

[xxxi] Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor [1992] 1 MLJ 697, 713.

[xxxii] Hassan, H. (2025, 24 Jan). Bowing to public pressure, Malaysia PM Anwar now says an anti-graft rally can go ahead in KL. The Straits Times. Retrieved from: <https://www.straitstimes.com/asia/se-asia/bowing-to-public-pressure-malaysia-pm-anwar-now-okays-anti-corruption-rally-in-kl>. Site accessed on 14 Feb 2025. 

[xxxiii] Azemi, A. (2025, 22 Jan). Polis Ada Perkiraan Untuk Tolak Himpunan Rakyat Benci Rasuah - Fahmi. MalaysiaGazette. Retrieved from: <https://malaysiagazette.com/2025/01/22/polis-ada-perkiraan-untuk-tolak-himpunan-rakyat-benci-rasuah-fahmi/#google_vignette>. Site accessed on 14 Feb 2025.

[xxxiv] See footnote 33

[xxxv] Malay Mail. (2025, 25 Jan). ‘Govt committed to freedom of assembly,’ says Saifuddin Nasution as Home Ministry to facilitate smooth running of anti-corruption rally. Malay Mail. Retrieved from: <https://www.malaymail.com/news/malaysia/2025/01/25/govt-committed-to-freedom-of-assembly-says-saifuddin-nasution-as-home-ministry-to-facilitate-smooth-running-of-anti-corruption-rally/164503>. Site accessed on 14 Feb 2025. 

[xxxvi]Malay Mail. (2025, January 24). PM Anwar says ‘go ahead, protest against corruption’ ahead of anti-graft rally, criticises attempts to blame him for pre-administration cases. Malay Mail. Retrieved from: 

<https://www.malaymail.com/news/malaysia/2025/01/24/pm-anwar-says-go-ahead-protest-against-corruption-ahead-of-anti-graft-rally-criticises-attempts-to-blame-him-for-pre-administration-cases/164475>. Site accessed on 16 Feb 2025.

[xxxvii] Dr Chandra Muzaffar v Universiti Malaya [2002] 5 MLJ 369, 387.

[xxxviii] Malaysiakini. (2025, 31 Jan). Home minister moots scrapping approval process for peaceful rallies. Malaysiakini. Retrieved from: <https://www.malaysiakini.com/news/733161>. Site accessed on 13 Feb 2025.

[xxxix] Shesshsan, D. (2025, 14 Feb). Amendments To The PAA Must Guarantee The Right To Protest Without Fear. Amnesty Malaysia. Retrieved from: <https://www.amnesty.my/2025/02/14/amendments-to-the-paa-must-guarantee-the-right-to-protest-without-fear/>. Site accessed on 16 Feb 2025.

[xl] Seraj, Z. (2025, February 13). No more consent needed: Peaceful Assembly Act to be amended, Section 11 requirement to be scrapped, says PM Anwar. Malay Mail. Retrieved from: <https://www.malaymail.com/news/malaysia/2025/02/13/no-more-consent-needed-peaceful-assembly-act-to-be-amended-section-11-requirement-to-be-scrapped-says-pm-anwar/166509>. Site accessed on 13 Feb 2025.

[xli] [1976] QB 142, 178.

Photo Credits to https://www.amnesty.my