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‘Accused charged with sedition exposed to selective prosecution’

 | November 26, 2016

It is indisputable that an accused will be clearly disadvantaged and in effect discriminated against, says Court of Appeal.


PUTRAJAYA: The Court of Appeal has observed that an accused charged with sedition will face discrimination as the prosecution need not prove intention to establish its case.

It pointed out that the offence of public mischief under the Penal Code, for instance, imposed a duty on the prosecution to prove intention.

“It is indisputable that an accused under the Sedition Act would be clearly disadvantaged and in effect discriminated,” said Justice Varghese George Varughese, when delivering a unanimous landmark ruling yesterday.

He said this effect would leave open the door for selective prosecution, which is anathema and an affront to the constitutional right to be dealt with equally and be protected equally before the law.

In the 24-page judgment, Varghese, who sat with justices Lim Yee Lan and Harminder Singh Dhaliwal, allowed a declaration by Sri Muda assemblyman Mat Shuhaimi Shafiei that Section 3 (3) of the Sedition Act 1948 contravened Article 10 of the Federal Constitution.

That provision in the law states that the prosecution need not prove the intention of the accused said to have made an inflammatory speech or statement.

He had filed his originating summons against the government in September 2014 but last year the High Court dismissed his suit on the grounds it was an abuse of court process.

Mat Shuhaimi need not stand trial in the Sessions Court as the Court of Appeal has invariably struck out the charge.

Mat Shuhaimi, who is also the Selangor menteri besar’s political secretary, had on Feb 7, 2011, claimed trial to posting a seditious publication in his blog.

He risked losing his position as an elected representative if the court sentenced him to more than a years’ jail or more than a RM2,000 fine.

Those found guilty of sedition could face a jail term of up to three years or a maximum RM5,000 fine.

Varghese said the bench was of the view that Section 3(3) of the law did not meet the test of proportionality required to impose restrictions to preserve national security, public order or prevent an incitement of an offence.

“Section 3(3) of the Act was in violation of the constitutional rights of a citizen to be treated equally and also to be treated equally before the law,” he added.

Lawyer N Surendran, who represented Shuhaimi, submitted to the court that the total removal of proof of intention was a disproportionate measure to meet restrictions imposed under Artice 10 (2).

Article 10 guarantees citizens the freedom of speech and expression but subject to restrictions imposed by Parliament.

The court, in making an objective assessment, said the removal of intention was an overkill, akin to “using a hammer to confront the menace of a mosquito”.


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