Court of Appeal rules Section 3(3) of Sedition Act invalid
PUTRAJAYA: Section 3(3) of the Sedition Act, which allows for conviction once it is proven that the accused had made the seditious statement, has been ruled as unconstitutional by the Court of Appeal.
Instead, intention must now be proven in such sedition cases.
According to lawyers, this means many pending sedition cases will be grossly affected.
The Attorney-General’s Chambers, however, said it would appeal the decision.
Lawyer N. Surendran, whose client won in the landmark judgment yesterday, said: “It means the measures are excessive and unnecessary. It also means from now onwards, in all pending cases or any that will be charged after this, the element of intent will have to be proven by the prosecution.”
Surendran, who was acting for Sri Muda PKR assemblyman Mat Shuhaimi Shafiei, said prior to this, the prosecution only had to prove that the alleged seditious statement was indeed made by the accused.
“That was one of the reasons we saw so many convictions in sedition cases previously.”
He said all those sedition cases, including the related appeal, that were pending at the courts would be affected.
“Even the previous cases will be affected,” he said, adding that those who were convicted could now seek to set aside the convictions during their appeals at the higher courts.
Surendran said the prosecution would now have to review the charges against the accused.
The three judges who unanimously handed down this judgment are Justices Lim Yee Lan, Varghese George Varughese and Harmindar Singh Dhaliwal.
Justice Varghese, who wrote the judgment, specified that the section was flawed and invalid because it did not require the prosecution to prove intent – which contravenes Article 10 of the Federal Constitution on the right to freedom of speech.
(Article 10 guarantees Malaysians the right to freedom of speech, freedom of assembly and freedom of association.)
“Therefore, it is invalid and of no effect in law,” said Justice Varghese, who read out the 24-page judgment.
The panel yesterday set aside the High Court’s decision on Feb 23 last year which dismissed the same argument put forward, namely that Section 3 of the Sedition Act read together with Section 4 was in violation or inconsistent with a citizen’s right to freedom of speech and expression.
Mat Shuhaimi had earlier been charged on Feb 7, 2011, at the Shah Alam Sessions Court under Section 4(1)(c) of the Act for publishing an online article, “Pandangan saya berasaskan undang-undang tubuh kerajaan negeri Selangor” (My opinion is based on the Selangor State Constitution 1959).
He claimed trial to the charge.
Although the sedition case is pending in the Sessions Court, the application for declaration was filed in the High Court. A case that originated from the High Court will have its final determination made at the Federal Court.
Senior Federal Counsel Alice Loke Yee Ching from the Attorney-General’s Chambers said she would definitely appeal against the court decision.
In the judgment yesterday, Justice Varghese said the court’s role would also have been preserved to ensure that an accused charged with an offence under the Act had a fair determination of the case against him both procedurally and evidentially.
He also said that they were of the view the “seditious tendency” as defined in Section 3(1) of the Act would still require an objective determination by the court based on facts and circumstances in each case.
He said an offence under Section 4 could by no means be considered “strict liability” offence in the sense as argued by the prosecution.
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