The Court of Appeal in a landmark decision today ruled that a section in the Sedition Act which states that the element of intention need not be proven, was unconstitutional.
Panel judges led by Justice Lim Yee Lan made the unanimous decision in allowing the appeal by PKR’s Sri Muda assemblyman Mat Shuhaimi Shafiei to challenge the colonial-era legislation.
“The order of the High Court (in dismissing the originating summons) is set aside,” she said.
Justices Varghese George and Harminder Singh Dhaliwal were the other judges on the panel.
The court said Section 3(3) of the Act contravened Article 10 of the Federal Constitution.
Varghese said under Article 8, all persons are equal before the law.
“We remind ourselves on this point,” he said.
“It’s obvious that Section 3(3) creates another ‘regime’ on the element of seditious tendency.”
Shuhaimi, charged with sedition in 2011 based on a blog post on the appointment of then Selangor state secretary Mohd Khusrin Munawi, filed for a declaration seeking to nullify Sections 3 and 4 of the Sedition Act.
He failed to strike out his charge at the High Court.
Varghese said Section 3(3) deviated from the norm in other laws.
“Other legislations need the prosecution to prove the element of intention.”
Under normal conditions, he said, the burden of proof lies with the prosecution.
“Under Section 3(3), the burden of proof has been moved out from the prosecution,” he said.
As such, he said the section was “wholly unsustainable” and breached the provisions in Article 8.
Lawyer N. Surendran who represented Shuhaimi welcomed the decision, saying it would have a bearing on other ongoing sedition charges.
“What this means is that from now onwards, all the pending sedition cases or any to be charged after this, the element of intention will have to be proved by the prosecution,” he said.
Meanwhile, Shuhaimi said he was happy with today’s outcome, saying the ruling was important for the Malaysian public.
“I hope in future, matters relating to rights and freedom will be reviewed to make them in tune with today’s borderless world.”
Source : Ho Kit Yen@FMT Reporters Online