Federal Court sets aside landmark Sedition Act ruling

A five-member Federal Court bench today set aside a landmark Court of Appeal decision from Nov 2016, which stated that the prosecution must prove intent when charging a person with sedition.

The court also described the civil appeal by PKR’s Sri Muda assemblyperson Mat Shuhaimi Shafiei to have Section 3(3) of the Sedition Act declared unconstitutional as an abuse of the court process.

However, Chief Judge of Malaya Ahmad Maarop, who wrote the unanimous decision, made no ruling on the constitutionality of the law.

“The COA erred in allowing the respondent (Mat Shuhaimi's) appeal, which warrants our interference.”

“The decision of the High Court is restored, and the Court of Appeal decision is set aside. We decline to answer questions 2 and 3 of the challenge," he said.

The court called the civil application an abuse of the court process because Mat Shuhaimi had previously been unsuccessful in striking out Section 4 of the same Act.

The other judges on the Federal Court panel included Justices Ramly Ali, Balia Yusof Wahi, Zaharah Ibrahim and Prasad Sandosham Abraham.

The court made no order as to costs, despite the senior federal counsel, led by Awang Armadajaya Awang Mahmud, seeking RM15,000.

With the decision today, the apex court fixed for Shuhaimi's ongoing sedition trial to be mentioned in Shah Alam on Wednesday.

Mat Shuhaimi, who is also the Selangor menteri besar's political secretary, was charged in Feb 2011 with sedition when he posted an allegedly seditious article on the appointment of Mohd Khusrin Munawi as the Selangor state secretary on his blog.

He was alleged to have committed the offence at Pusat Khidmat Rakyat in Shah Alam, on Dec 30, 2010.

'Section 3(3) is constitutional'

Besides the constitutionality of Section 3(3), two other questions were posed before the Federal Court today, namely whether constitutionality of the law can be challenged through a civil proceeding - as a decision had been made by the Court of Appeal in a criminal appeal - and whether the challenge was tantamount to an abuse of the court process.

Although the court made no ruling on its constitutionality, Awang Armadajaya told reporters outside court that Section 3(3) is considered constitutional.

“You cannot go through a civil mode in a criminal case, as it would not result in finality in the case,” he said, citing the court's ruling that the application was an abuse of the court process and res judicata - where a matter that has been adjudicated by a competent court may not be pursued further by the same parties.

In 2016, Justice Varghese George Varughese (photo) in a landmark decision struck down Section 3(3) of the Sedition Act 1948, ruling that the prosecution must prove intention when charging a person with sedition.

The judge ruled there were merits in Mat Shuhaimi's application, as Section 3(3) was a total displacement or removal of any consideration of mens rea, a vital element in criminal proceedings.

Varughese had said that although Section 3(3) deems the intention of the person charged irrelevant, in this court's assessment, it was not to create a presumption that the accused could disprove.

“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; it would not have such a drastic effect if such a restriction was couched as a rebuttable presumption.”

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

The outcome in Mat Shuhaimi's case is long awaited as it would affect other politicians or activists facing sedition charges, namely Batu MP Chua Tian Chang, Subang MP Sivarasa Rasiah, Padang Serai MP N Surendran and cartoonist Zunar.

Mat Shuhaimi was represented by Gopal Sri Ram, Latheefa Koya and David Yii.- Mkini