KUALA LUMPUR, Jan 11 — The government is seeking to postpone several constitutional challenges against the Sedition Act until the end of a landmark case at the Federal Court, a lawyer said today.
Melissa Sasidaran, who is handling five sedition cases, said the latest postponement happened today at the Shah Alam Sessions Court that was scheduled to hear her client Hassan Karim’s application to refer three constitutional questions on the Sedition Act to the High Court.
“Today is supposed to be hearing but AG applied for postponement pending outcome of Mat Shuhaimi’s leave hearing in the Federal Court,” she told Malay Mail Online when contacted, adding that the case will now come up for mention on February 24.
She said a representation was made last July to the Attorney-General to request the withdrawal of the sedition charge against Hassan over alleged Twitter remarks on the Selangor Sultan, but confirmed the Johor PKR chief’s request was rejected on September 20.
Melissa said the AG’s Chambers made the same request for deferment in three similar court cases involving her clients — lawyer Eric Paulsen, lawyer and PKR vice-president N. Surendran, cartoonist Zulkiflee SM Anwar Ulhaque (Zunar).
The Sessions Court was scheduled to seek clarification from lawyers and possibly deliver its decision on the trio’s application — to refer their similar constitutional challenge against the Sedition Act to the High Court — on January 24.
Melissa said the trio’s legal team received a letter on January 6 from the AGC requesting for a stay of proceedings pending the outcome of PKR lawmaker Mat Shuhaimi Shafiei’s case at the Federal Court.
As for PKR MP Sivarasa Rasiah’s sedition case, the High Court is scheduled to hear on February 7 his appeal against the Sessions Court’s refusal to refer his constitutional challenge to the High Court.
“For Sivarasa’s case, we didn’t receive a letter, but during mention at Sessions Court, the DPP (deputy public prosecutor) requested for postponement of the case pending the Mat Shuhaimi outcome at the Federal Court,” she said, adding that the mention then was on January 9.
All five are currently facing sedition charges in court, with their trial yet to start pending the courts’ decision on their applications to challenge the constitutionality of the Sedition Act used to prosecute them.
Three questions
Melissa confirmed that all five challenges revolve around three constitutional questions, namely whether the Sedition Act 1948 was unconstitutional as its Section 3(3) provision — which states “intention” to be irrelevant to prove a sedition offence — blocks the exercise of fundamental rights under the Federal Constitution’s Articles 5, 8 and 10.
They also want the court to determine are whether the Sedition Act is unconstitutional due to its criminalising of the right to free speech and runs counter to Article 10 — which guarantees such a right.
The final question revolves around whether the Federal Court had erred in its decision in Universiti Malaya academic Azmi Sharom’s constitutional challenge, where it ruled that the Sedition Act remains a valid and effective law under the Federal Constitution despite being a pre-Merdeka legislation that was not passed by Parliament.
In a landmark ruling last November 25, the Court of Appeal unanimously allowed Mat Shuhaimi’s constitutional challenge by ruling that Section 3(3) of the Sedition Act had breached the constitutional guarantee to free speech and was therefore invalid.
Under Section 3(3) which the appellate court has declared unconstitutional, the prosecution does not have to prove that a person intended to commit sedition to secure a conviction, but merely has to prove that the accused’s remarks or actions had seditious tendency.
The government has since filed an application for leave to appeal the decision at the Federal Court, which will be heard on February 21.
