Judge who ruled intention must be proved in sedition cases retires

Court of Appeal judge Varghese George Varughese who, in a landmark judgment two months ago ruled that the prosecution is required to prove intention in sedition cases, retired today.

Prior to this, the prosecution need not prove intention, as per Section 3(3) of the Sedition Act 1948.

In the Mat Shuhaimi Shafiei vs Public Prosecutor case, Justice Varghese ruled that Section 3(3) contravenes Article 10 of the Federal Constitution on freedom of expression and is therefore invalid and unenforceable.

“More significantly, apart from seeking to totally relieve the prosecution of the burden to prove intention… that provision also had the effect of putting the issue of the accused's intention beyond judicial consideration; such would not have been the drastic effect if such restriction was couched as a rebuttable presumption,” Justice Varghene had ruled.

“It was indisputable that an accused (charged with an offence under Section 4 [read together with section 3(1)] of the Sedition Act 1948), would be clearly disadvantaged and in effect discriminated. This in effect would leave open the door for selective prosecution, an anathema or affront to the constitutional right to be dealt with equally and to be also protected equally before the law,” his judgment states.

The judge said there were merits in Mat Shuhaimi's application as Section 3(3) was a total displacement or removal of any consideration or necessary finding of intention of the accused, termed as 'mens rea', which is an essential ingredient to be proved in criminal proceedings.

In criminal law, 'mens rea', or proof of intention behind a purported act, has always been an essential element to show culpability of a crime.

The judge, along with two other Court of Appeal judges, further described the challenge posed in the case of Mat Shuhaimi, who is also the Seri Muda assemblyperson, as a novel issue.

Pulled in from private practice

The Bar Council had earlier this month, welcomed Justice Varghese's decision in the Mat Shuhaimi case, saying it upheld the notion of freedom of speech and expression.

Justice Varghese, now aged 66, had also ruled that the seven days detention faced by Seputeh MP Teresa Kok over the azan issue in 2008 was illegal and done without basis, on grounds that an elected representative could not be a threat if the arrest was made after seven months.

“It was obvious to us that in any event, this so-called reason for belief was no longer an immediate cause for any 'threat' on Sept 12, 2008, some seven months later, when she was arrested under Section 73(1) of the ISA (Internal Security Act)."

He also found on the issue of azan that the nazir (mosque supervisor) at the Bandar Kinrara 5 mosque had denied that Kok was involved in the signing of the petition seeking the mosque to lower the volume of its loudspeakers.

The judge also wrote the unanimous decision last year that ruled the government cannot claim damages from election watchdog Bersih 2.0, for the damages suffered by the police in the Bersih 3 rally. This decision was upheld by the Federal Court last week.

Justice Varghese ascended to the Court of Appeal from the High Court. Prior to that he practised law, as a partner in the firm of M/s Zain & Co.

He was one of those pulled from the private practice to become a High Court judge during term of the chief justice then, Zaki Azmi.- Mkini