The concept of proportionality holds that actions or responses should be commensurate with the circumstances and the goals they aim to achieve, ensuring a balance between means and ends.
It is a principle that transcends disciplines and is found in ethics, governance and even the natural order.
Proportionality as conduct demands that neither excess nor deficiency is justifiable when measured against a legitimate objective.
Proportionality in constitutional law
In constitutional law, proportionality serves as a safeguard against overreach. It ensures that legislative or executive measures do not unduly infringe upon fundamental liberties.
This principle lay at the heart of the Federal Court’s landmark decision in Amir Hariri Abd Hadi v Public Prosecutor (2025). The court struck down Section 9(5) of the Peaceful Assembly Act 2012 (PAA) as unconstitutional. The subsection imposed a penalty for noncompliance with the five-day notification requirement in subsection 9(1).
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The case arose when Amir Hariri Abd Hadi, a senior political party member, was charged with organising a peaceful rally on 14 August 2022 outside the Sogo Complex in Kuala Lumpur.
The rally, which drew around 60 participants, was held to protest a government defence contract that Amir alleged was scandalous due to non-performance.
Although the assembly concluded peacefully and without incident, Amir was prosecuted under Section 9(5) for failing to provide the required five-day notice to the police under Section 9(1). No other participants in the assembly were charged.
Amir challenged the constitutionality of the penal provision, arguing that it disproportionately infringed his right to peaceful assembly under Article 10(1)(b) of the Federal Constitution.
From reasonableness to proportionality
One of the most significant contributions of the Federal Court’s judgment in Amir Hariri lies in its doctrinal clarity.
The court decisively moved away from the earlier “reasonableness” test – once championed in cases like Sivarasa Rasiah – and reaffirmed that the correct constitutional standard for evaluating restrictions on fundamental liberties is the proportionality test.
This shift is not merely semantic. While the reasonableness test invites a more deferential, often subjective inquiry into whether a law is fair or justified, proportionality demands a structured, objective analysis. It scrutinises the necessity and impact of the restriction against its stated aim.
The court acknowledged that the “reasonableness” approach had been effectively displaced by its own decision in Azmi Sharom, which endorsed the proportionality framework articulated in Alma Nudo Atenza. In doing so, the court harmonised the interpretation of Article 10 (freedom of speech and assembly) with Article 8(1) (equality and equal protection).
It affirmed that any legislative restriction on fundamental rights must not only serve a legitimate constitutional purpose but must also be narrowly drafted and minimally impairing. This doctrinal clarity strengthens the constitutional structure by ensuring that constitutional rights are not eroded through vague or overly broad statutory provisions as Section 9(5) of the PAA.
Implications
The implications of this judgment are far-reaching.
First, it sets a high constitutional bar for any future legislation that seeks to regulate fundamental liberties. Drafters and MPs must now ensure that restrictions are not only justified in principle but also proportionate in practice. Blanket criminal sanctions, especially those that target organisers of peaceful, non-disruptive assemblies, are unlikely to survive constitutional scrutiny unless they are demonstrably necessary and the least restrictive means available.
Second, the judgment opens the door for renewed public interest litigation. By reaffirming the centrality of proportionality, the court has equipped civil society actors, legal advocates and affected individuals with a powerful analytical tool to challenge laws that disproportionately burden constitutional rights. This includes not only laws regulating assemblies but also those affecting speech, association and personal liberty.
Statutory bodies law
One such statute ripe for scrutiny is the Statutory Bodies (Discipline and Surcharge) Act 2005, which has been held to apply to public universities on the basis that they are statutory bodies. In Universiti Utara Malaysia v Mutiara Mohamad & Ors (2011), the courts affirmed that universities are not exempt from the act’s provisions.
Yet this formalistic reasoning, grounded solely in institutional classification, fails to grapple with the substantive impact of the Statutory Bodies (Discipline and Surcharge) Act on the constitutional and functional integrity of universities.
The disciplinary framework imposed by the act is fundamentally misaligned with the nature of academic institutions and the freedoms essential to their mission. It subjects academics to bureaucratic disciplinary procedures that may be appropriate for administrative agencies, but are wholly unsuitable for institutions whose vitality depends on intellectual independence, critical inquiry, and freedom of expression.
The application of the act to universities undermines academic freedom by chilling dissent, prohibiting criticism of government and the employer university, and subordinating scholarly autonomy to rigid administrative control. It denies universities their essential character as spaces of open debate and inquiry. It stifles the academic’s larger social role as commentator, critic, and conscience of the nation.
The argument that universities must be bound by the act simply because they are statutory bodies is a superficial one. It ignores the constitutional implications of such a regime and the disproportionate burden it places on academics and students.
The proportionality framework affirmed in Amir Hariri provides a powerful analytical tool to challenge the application of Statutory Bodies (Discipline and Surcharge) Act to universities.
It invites the courts to ask: is the restriction on academic freedom imposed by this act necessary to achieve a legitimate aim? Is it the least restrictive means available? And does it strike a fair balance between institutional discipline and constitutional liberty?
A close, principled analysis, long absent in judicial treatment of this issue, would be likely to reveal that this act has no place in academia.
Finally, the decision invites a broader political shift in how the state approaches civic participation. Rather than treating peaceful assemblies as threats to be managed, the state is constitutionally obliged to facilitate and protect them.
The reorientation from control to enablement reflects a maturing constitutional democracy that values dissent, dialogue and the active engagement of its people. For this alone, one must be grateful to the Federal Court.
Enforceable constitutional guarantees
The Federal Court in Amir Hariri Abd Hadi v PP did more than strike down a single provision. It reaffirmed the foundational principle that constitutional rights are not hollow promises, but enforceable guarantees.
By applying the proportionality test, the court marked the outer limits of legislative power to modify or restrict those rights. Laws that cloak prohibitions in the language of regulation, or that disproportionately burden the exercise of fundamental freedoms, will not withstand constitutional scrutiny.
This decision reinforces the idea that the right to assemble is not a privilege granted by the state, but a constitutional entitlement that must be protected, even and especially when it is exercised in dissent.
In doing so, the court has not only clarified the law; it has fortified the democratic space in which the people, including the academic community, can assemble, speak and act in pursuit of justice.
Proportionality beyond the courtroom
Beyond its immediate legal implications, the Federal Court’s decision in Amir Hariri offers a deeper civic lesson: proportionality is not merely a constitutional doctrine, but a principle of fairness that should guide conduct across all spheres of society.
Whether in the classroom, the boardroom or the streets, the idea that responses must be measured, justified and commensurate with their aims is a standard that fosters justice, trust and legitimacy.
For educators and school administrators, it is a reminder that discipline must be corrective, not singularly punitive. Punishment, as a corrective means, must consider the nature of the infraction and the dignity of the student.
For law enforcement, it reinforces the imperative that the use of force must always be the last resort, proportionate to the threat posed, and never a tool of intimidation.
For businesses, it serves as an ethical restraint against exploitative pricing, unfair contract terms, or opaque service conditions that disproportionately burden consumers.
The decision must also serve as a reminder to hierarchies within organisations, including those advancing civic rights, that their conduct meets the same standards underpinned in the Federal Court’s decision.
In this sense, the judgment is not only a vindication of constitutional rights. It is a call to embed proportionality as a cultural norm. It invites all institutions, public and private, to reflect on how power is exercised, and to ensure that authority, wherever it is wielded, is always tempered by fairness, necessity, and respect for the rights of others.
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Sagely argued.