Apex court reserves judgment on appeal against Mat Shuhaimi

A five-member Federal Court bench today reserved judgment on the prosecution's appeal against the Court of Appeal decision that the prosecution must prove intention in Seri Muda assemblyperson Mat Shuhaimi Shafiei's sedition case.

The bench, led by Chief Judge of Malaya Justice Ahmad Ma'arop, heard submissions from the prosecution led by the head of prosecution in the Attorney-General's Chambers, Noorbahri Baharuddin, and senior federal counsel Awang Armadajaya Awang Mahmud, as well as from Gopal Sri Ram, who is leading the defence.

The panel today decided to hear on two out of three questions of law posed before the bench, namely:

• Whether there is an abuse of the court process in challenging the constitutionality of Section 3 of the Sedition Act through the civil proceeding, as a decision had been made by the Court of Appeal in a criminal appeal; and
   
• Whether the constitutionality of Section 3 of the Sedition Act 1948 cannot be challenged in the civil proceeding due to a similar challenge in a prior criminal proceeding.

The other judges who heard the appeal were Federal Court judges Ramly Ali, Balia Yusof Wahi, Zaharah Ibrahim and Prasad Sandosham Abraham.

Noorbahri submitted that the case appeared to be a repetition of Mat Shuhaimi's (photo) criminal appeal, which also went all the way to the Federal Court the last time, and hence was frivolous, vexatious and an abuse of the court process.

“It is another way of circumventing criminal prosecution against Mat Shuhaimi,” he said.

Sri Ram, a former Federal Court judge, responded that the constitutionality of Section 3 (3) was never argued in the earlier criminal application before the Court of Appeal and Federal Court, but was only brought up in the civil application.

Furthermore, Sri Ram told the bench, the defence was also appealing that the apex court's decision in the Azmi Sharom case was wrong.

He also argued that while Section 3(3) states that the intention is irrelevant, the defence sought to modify the current legislation that “intention is relevant”.

He further said while the prosecution argued there is res judicata, the doctrine that res judicata could have and should have does not apply in constitutional law cases.

The senior lawyer further argued that the issue of intent was never argued in the criminal case, as the focus then was on Section 4.

Res judicata is a Latin term meaning a matter that has been adjudicated by a competent court may not be pursued further by the same parties.

The Court of Appeal had ruled that Section 3(3) contravened Article 10 of the Federal Constitution on freedom of expression, and it was therefore invalid and unenforceable.

Court of Appeal judge Justice Varghese George Varughese, who delivered the judgment, said although Section 3(3) stated the intention of the person charged was deemed irrelevant, in the Court of Appeal's assessment, it was not to create a presumption that the accused could disprove.

The judge also said that Section 3(3) was in conflict with Section 505 of the Penal Code, where intent (or mens rea) had clearly to be proven for any offence in the Penal Code.

Prior to the landmark Court of Appeal decision, the prosecution need not prove intention.- Mkini