PROSECUTION MUST PROVE SEDITIOUS INTENT

LANDMARK RULING STATES

IN a landmark decision, the Court of Appeal yesterday ruled that Section 3(3) of the Sedition Act 1948, which removes the requirement for the prosecution to prove the intention of a person charged with sedition, is invalid.

A three-man bench, chaired by Justice Lim Yee Lan, unanimously allowed the appeal brought by Sri Muda assemblyman Mat Shuhaimi Shafiei over his challenge on the constitutionality of the provision.

Justice Varghese George Varughese, who delivered the judgment, said Section 3(3) of the act violated the constitutional rights of citizens to be treated and protected equally before the law.

The other judge presiding on the panel was Justice Datuk Harmindar Singh Dhaliwal.

Section 3(3) states that for purposes of proving the commission of any offence under the Sedition Act, the intention of a person charged would be irrelevant if the act had or would, if done, or the words or publication, had a seditious tendency.

Justice Varghese said Section 3 (3), in as much as it sought to totally displace proof of intent for seditious offences, was wholly unsustainable and a breach of the guarantee of equality before the law under the Federal Constitution accorded to all persons in the country.

He said it was indisputable that an accused person charged under the Sedition Act 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,” he said in the 24-page judgment.

He said Section 3(3) contravened Article 10 of the Federal Constitution, which guaranteed freedom of speech and expression, and was, therefore, invalid and of no effect in law.

“We were of the unanimous view that Section 3(3) of Act 15 (Sedition Act) was a disproportionate restriction or measure to meet the permissible objectives spelt out in Article 10(2)(a) of the Federal Constitution.”

Mat Shuhaimi is facing a sedition charge for allegedly posting seditious material on his blog at Pusat Khidmat Rakyat in Jalan Anggerik Vanilla, Kota Kemuning, Shah Alam, on Dec 30, 2010.

He filed an originating summons in September 2014 seeking the court to declare Sections 3 and 4 of the Sedition Act invalid as he claimed the provisions violated the fundamental liberty of freedom of speech guaranteed by Article 10(1)(a) of the Federal Constitution.

Section 4 deals with the penalty of the offence.

He lost his case at the High Court, prompting him to appeal to the Court of Appeal.

After the decision, Mat Shuhaimi’s lawyer, N. Surendran, said following the court’s decision, the prosecution conducting sedition cases must prove the intention of a person charged with the commission of the offence.

“So, what this means is that from now onwards, all the pending (sedition) cases, or those that will be charged after this, the element of intention will have to be proven by the prosecution,” he said outside the court.

Senior federal counsel Alice Loke represented the government, which was named as respondent in Mat Shuhaimi’s originating summons. Bernama