Justice Mohd Sofian Abd Razak fixed the date after finding that the Sessions Court was wrong in refusing to transmit Sivarasa’s application to the High Court.
“The Sessions Court judge erred in law in refusing the application to be transmitted to the High Court,” he said in allowing Sivarasa’s appeal.
Sofian said the trial judge relied on a wrong Federal Court judgment in refusing to send the matter to the High Court, as required under Section 30 of the Courts of Judicature Act.
Lawyer Gurdial Singh Nijar, who represented Sivarasa, submitted that the Sessions Court judge acknowledged there were constitutional issues but declined to send it to the High Court.
Gurdial said a recent Federal Court court ruling in the case of Gan Boon Aun v Public Prosecutor had ruled that lower courts must send cases to the High Court to determine whether constitutional issues need to be referred to the apex court.
“If the High Court finds there are constitutional issues, it will refer it to the apex court. Otherwise, the High Court will send it back to the lower court for trial to commence,” he said.
In this case, Sivarasa’s complaint is that Section 233 of the CMA is in violation of Article 10 which guarantees freedom of speech and expression.
This provision criminalises using the internet for communications that are “obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person”.
Sivarasa was charged in April last year with two counts of posting a doctored Time magazine cover on his Facebook account featuring Prime Minister Najib Razak along with the words “No 2 on the most corrupt list”.
However, he took it down the same day in March after learning that it was a fake.
The said offence is punishable under Section 233 (1) (a) of the CMA with a fine not exceeding RM50,000 or a jail term of up to a year or both.