Court rules Sedition Act clause breaches constitutional right to free speech

On February 7, 2011, PKR’s Mat Shuhaimi Shafiei (left) was charged in the Shah Alam Sessions Court with posting allegedly seditious material on his blog. — Picture by Mohd Yusof Mat Isa
On February 7, 2011, PKR’s Mat Shuhaimi Shafiei (left) was charged in the Shah Alam Sessions Court with posting allegedly seditious material on his blog. — Picture by Mohd Yusof Mat Isa

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PUTRAJAYA, Nov 25 ― The Court of Appeal today decided that a clause in the Sedition Act is unconstitutional, a ruling that could have far-reaching ramifications for the law regularly used against government critics.

The three-judge panel unanimously ruled that Section 3(3) of the Sedition Act violated the Federal Constitution’s Article 10, which guarantees the right to freedom of speech and expression.

“We order that there be the following declaration: Section 3(3) of the Sedition Act 1948 (Act 15), contravenes Article 10 of the Federal Constitution and therefore is invalid and of no effect in law,” the judgment delivered by Datuk Varghese George Varughese said.

The panel was chaired by Justice Datuk Lim Yee Lan and also included Justice Harminder Singh Dhaliwal.

According to The Star’s news site, the Court of Appeal panel said that intention to commit sedition must be shown in each case, whereas proving intent was not previously necessary to convict under the colonial-era law.

Under Section 3(3), the prosecution does not have to prove that a person had intended to commit sedition as intention is “irrelevant”, with the prosecution merely required to prove their remarks or actions had seditious tendency.

In a 24-page written judgment sighted by Malay Mail Online today, the Court of Appeal pointed out that Article 8 of the Federal Constitution provides that all citizens should receive equal treatment and were entitled to equal protection of the law.

The court noted however that Section 3(3) deviates from the usual prosecutions for other crimes where prosecutors have to prove intent before someone could be convicted.

It also said Section 3(3) is disproportionate to the permissible restriction of free speech under Article 10(2)(a) of the Federal Constitution for the purposes of preserving national security, public order or to even prevent incitement of any offence.

There is also no valid basis for sedition to be a strict liability offence—where the proof of the actions alone is sufficient for conviction—as even more heinous crimes such as drug trafficking and corruption only shifts the burden on the accused to disprove their intent to commit the crime, the court said.

“Section 3(3) of Act 15 in as much as it sought to totally displace proof of intent for offences under Act 15 was wholly unsustainable and a breach of the guarantee of equality before the law under the FC accorded to all persons in the country,” the judgment said, referring to the Sedition Act and the Federal Constitution.

In elaborating further on how inequality would occur with two sets of laws seemingly applicable to the same situation, the Court of Appeal said Section 3(3) would cause those charged with the offence of sedition to be “clearly disadvantaged and in effect discriminated”, as similar offences under Section 505 of the Penal Code that could alternatively be used instead requires the proving of “intent” to commit the crime.

“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,” it said.

The Court of Appeal’s decision today is in favour of PKR’s Seri Muda assemblyman Mat Shuhaimi Shafiei, who had in September 2014 mounted a constitutional challenge against the Sedition Act under which he was charged.

In his challenge filed on September 9, 2014, Shuhaimi had applied for a court order that Section 3 of the Sedition Act when read together with the same law’s Section 4 is in violation of a citizen’s right to freedom of speech and expression under Article 10(1)(a) of the Federal Constitution.

On February 7, 2011, Shuhaimi was charged in the Shah Alam Sessions Court with posting allegedly seditious material on his blog srimuda.blogspot.com.

The blog posting, titled “Beraja di mata, bersultan di hati”, had allegedly insulted the Selangor Sultan and was purportedly made on December 30, 2010.

Shuhaimi kept his Sri Muda state seat in Election 2013 with a whopping majority, but a sedition conviction could potentially disqualify him from holding office as a lawmaker.

First-time offenders under Sedition Act face a maximum three-year jail term or maximum fine of RM5,000 or both, with either a one-year jail term or a RM2,000 fine enough to make Shuhaimi lose his seat.

 

The trial for Shuhaimi’s case under Section 4(1)(c) of the Sedition Act is set to resume next January 3, his lawyer N. Surendran told Malay Mail Online today.

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