Case : Mat Shuhaimi Shafiei v. Kerajaan Malaysia.

Citation : Mat Shuhaimi Shafiei v. Kerajaan Malaysia (Mat Shuhaimi Shafiei against the
Government of Malaysia, Reported in the second volume of the Current Law
Journal for 2017 at page 404-425).

Court : Court of Appeal, Putrajaya.

Judge(s) : 1) Varghese George JCA 2) Lim Yee Lan JCA 3) Harmindar Singh JCA

Facts of the case:

The appellant is an ADUN for the State Seat of Sri Muda at the material time. He was
charged at the Session Court under section 4(1)(c) of the Sedition Act 1948 for publishing an
online article entitled Pandangan saya berasaskan Undang-Undang Tubuh Kerajaan Negeri
Selangor, 1959. Before the trial started, the appellant had applied in the High Court to struck
off the charge against him by way of notice by motion. The ground of the motion was section
4 of the Sedition Act is in inconsistent with article 10 of the Federal Constitution (FC). The
motion was dismissed by the High Court and the appellants appeal to the Court of Appeal
was also dismissed. The appellant applied for leave to appeal to the Federal Court but the
application was withdrawn by virtue of the case of Siow Chung Peng v. PP on the ground
that the Federal Court had no jurisdiction to entertain any further appeal that arose in relation
to a criminal case filed in the Session Court.

The appeal was made against the dismissal by the High Court of the appellants originating
application (OS) for a declaration that section 3 and 4 of Sedition Act is in violation of with
citizens right to freedom of speech and expression as embodied in article 10 (1) of the FC.
Section 4 of the Sedition Act criminalizes the publication of messages carrying a seditious
tendency. Section 3(3) of the Sedition Act spells that, [f]or the purpose of proving the
commission of any offence against this Act the intention of the person charged [] shall be
deemed to be irrelevant if in fact the act had [] a seditious tendency. In other words,
Section 3(3) states that the mens rea element of the crime of sedition is irrelevant; it is
immaterial that whether a defendant had a seditious intent so long as the material published
was seditious in fact.

The appellant argued that Section 3(3) of the Sedition Act should be subject to the
proportionality test typically applied to government restrictions on speech in Malaysian
jurisprudence. That test, as articulated by the case Public Prosecutor v.
Azmi Shahrom, requires that for the government to place restriction on speech, it must be
objectively fair [and] must also be proportionate to the object sought to be achieved. The
permissible object[s] sought to be achieved are set out in Article 10(2)(a) of the FC, which
allows the government to restrict speech and expression rights as it deems necessary and
expedient only for objectives that serve national security or the public interest. The
appellant argued that, because Article 3(3) of the Sedition Act was just such a restriction, it
should be subject to the balancing test set out in Public Prosecutor v. Azmi Shahrom.
Moreover, the appellant argued, in order for a charge to stand under Article 4 of the Sedition
Act, the mens rea element deemed irrelevant by Article 3(3) of that Act should be restored,
for without it, the two Articles read together placed a disproportionate restriction on his Article
10 right to Freedom of Speech and Expression.

The lower court dismissed these arguments on the grounds that the appellants challenge to
Article 3(3) of the Sedition Act amounted to nothing more than an attempt to challenge the
constitutionality of Article 4 of the Sedition Act. The appellant had already challenged, and
the judge had already upheld, the constitutionality of Article 4 in a separate motion.
Therefore, the judge invoked the doctrine of res judicata and issued no finding on the
challenge to Article 3(3). The appellant then lodged the current application before the
Federal Court for appeal.

Issues:
1. whether the appellant was precluded by the doctrine of Res Judicata;
2. the position in law in respect of the test of proportionality with reference to the
legislative restrictions that might be imposed to meet the objectives of article 10(2) of
the FC;
3. and the legal effect of section 3(3) of Sedition Act as presently worded and found in
the statute book.

Reasoning:
On the first issue, res judicata, the judge came to the conclusion that the lower court judge
had misapplied precedent in reaching its decision. Taking note that the lower court was
clearly in error when stating that an identical question was posed, the judge explained
that the appellants challenge to section 3(3), and in particular his claim that it failed the
proportionality test established by Malaysian jurisprudence, was a substantive challenge,
separately brought and ought not to be shut out. Indeed, the question of whether section
3(3) of the Sedition Act was proportionate in light of the objective set out under Article 10(2)
of the Federal Constitution was a novel question, the specifics of which had never been
adjudicated upon previously.

The judge then turned to the question of whether the proportionality test could be applied to
section 3(3) of the Sedition Act under the objectives set out in Article 10(2) of the Federal
Constitution. Quoting recent Malaysian Supreme Court jurisprudence applying the
proportionality test to section 4 of the Sedition Act, the judge noted that the same Article
10(2) objectives that justify an application of proportionality to section 4 of the Sedition Act
also apply to Article 3(3). Therefore, the judge found that, because section 4 was subject to
the proportionality test, section 3(3) of the Sedition Act should also be subject to the
proportionality test.

Finally, the judge found that section 3(3) of the Sedition Act placed a disproportionate
restriction on speech in light of the governments aims in this regard. The Judge noted that
the language of section 3(3) (shall be deemed irrelevant) placed an absolute dismissal on
the mens rea element in the crime of sedition, rather than providing a rebuttable
presumption or some lesser standard. Given the fact that, in virtually every modern
democracy, mens rea is a required component of virtually every crime, and given a general
preference to avoid the imposition of so-called strict liability crimes, the Judge found that
the requirements set out in section 3(3) of the Sedition Act were simply too restrictive on
speech to be proportionate to the governments objectives. The court further found that
Section 3(3) seeking to totally displace proof of intent for sedition offences was wholly
unsustainable and a breach of the guarantee of equality before the law under the Federal
Constitution. Since Section 3(3) violates the equality provision under Article 8(1) of the
Federal Constitution, the impugned section is therefore unconstitutional. Equally as
important, the Court of Appeal reiterated the Courts role to ensure that an accused charged
with an offence under the Sedition Act had a fair determination of the case against him, both
procedurally and evidentially.

The Appellant will still face criminal charges under section 4 of the Sedition Act, but the
prosecution will now be required to demonstrate seditious intent.

Statutory Interpretation Approach:

In my observation the judge had applied the golden rule approach. In deciding the legal
effect section 3 (3) of the Sedition Act, the judge look at the language of the said section
which clearly placed an absolute dismissal of the element of mens rea. However, given the
fact that every crime required the element of mens rea and to avoid the imposition of strict
liability crimes, the judge found that requirements in section 3(3) is too restrictive and
ludicrous. Hence, the judge ruled that section 3(3) is unconstitutional.

Ratio:

As regard to the issue of Res Judicata, the judge found that the lower court was in error in
applying the precedent in reaching its decision. The lower court treated the issue as identical
question as the proportionality issue while the judge in Court of Appeal found that is a
separate question. The judge found that the question of proportionality had never been dealt
with by the lower court, hence, the case ought not to be shut out. The doctrine of Res
Judicata is flexible and based on the principles of equity. Hence, the court may in special
circumstances use its discretion to provide justice in the case where unfair decision was
made. As regard to the issue of proportionality, the judge stated that the proportionality test
should apply to section 3(3) of Sedition Act as the same test is applied to section 4 of the
same Act under the objectives set out in Article 10(2) of Federal Constitution. As for the final
issue as regard to the legal effect of section 3(3) of the Sedition Act, the Judge noted that the
language of section 3(3) (shall be deemed irrelevant) placed an absolute dismissal on
the mens rea element in the crime of sedition, rather than providing a rebuttable
presumption or some lesser standard. There was no valid basis or justification for the
section, considering that even cases of more socially abhorrent and heinous crimes still
require proof of intention. The Court of Appeal further found that Section 3(3) seeking to
totally displace proof of intent for sedition offences was wholly unsustainable and a breach of
the guarantee of equality before the law under the Federal Constitution. Since Section 3(3)
violates the equality provision under Article 8(1) of the Federal Constitution, the impugned
section is therefore unconstitutional.

Obiter:

Obiter can be seen in paragraph 39; we were of the view that seditious tendency as
defined in s.3(1) of Act 15 would still require an objective determination by the court based
on facts and circumstances in each case.
Commentary:

In my humble opinion, the appellants Originating Summon can be deemed as an abused of

the court process. It was scandalous and vexatious since it amounted to another attempt to
reopen the constitutionality issue surrounding section 4 of the Sedition Act, that had already
been resolved by the Court of Appeal in the appellants earlier application. This attempt here
was to reopen a settle issue and hence the court in exercise it inherent jurisdiction was
entitled to invoke the doctrine of Res Judicata to dismiss the appellants action.

The appellants application was relied on the same factual matrix and identical question that
had already been decided by a competent court. Hence, the appellants application should
be dismissed on the principle of Res Judicata.