Court of Appeal strikes down Sec 3(3) of Sedition Act: The prosecution must now prove intention.

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25 Nov 2016

Appeals Court allows PKR rep’s challenge on Sedition Act

November 25, 2016

It rules that Section 3(3) of the Act contravenes Article 10 of the Federal Constitution.

via

PUTRAJAYA: 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.”
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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.

Court of Appeal strikes down Sec 3(3) of Sedition Act in landmark case

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Hafiz Yatim

In a landmark decision today, the Court of Appeal has struck down Section 3(3) of the Sedition Act 1948, meaning to cite a person of sedition, the prosecution must now prove intention.

The ruling of the court would have an impact on all ongoing sedition cases, said lawyer N Surendran.

This happened in the case of Mat Shuhaimi Shafiei vs DPP Public where the lawyer appeared for the Sri Muda assemblyperson.

Justice Varghese George Varghese ruled that Section 3(3) contravenes Article 10 of the Federal Constitution regarding freedom of expression, and therefore it is invalid and unenforceable.

“This is a novel constitutional challenge, the specifics of which were never litigated before,” he said.

Justice Varghese said Section 3(3) failed the test of proportionality, which is contained in Article 8 of the constitution.

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Mat Shuhaimi was charged in February 2011 at the Sessions Court in Shah Alam with posting an allegedly seditious article in his blog, srimuda.blogspot.com, on the appointment of Mohd Khusrin Munawi as the new Selangor state secretary.

He was alleged to have committed the offence at Pusat Khidmat Rakyat, Jalan Anggerik Vanilla, Kota Kemuning in Shah Alam on Dec 30, 2010.

Mat Shuhaimi is the political secretary to Selangor Menteri Besar Azmin Ali

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