Case Summary and Outcome

The Federal Court of Malaysia ruled on a case involving Mat Shuhaimi Bin Shafiei, a Malaysian politician charged with sedition for publishing an article. Shuhaimi challenged the constitutionality of Section 3(3) of the Sedition Act, which eliminates the need to prove intention in sedition charges. The Court of Appeal initially allowed the appeal, declaring Section 3(3) unconstitutional. The Government of Malaysia contended that the challenge duplicated issues already adjudicated in previous criminal proceedings and should not be allowed to circumvent the decision made in the earlier case. However, the Respondent argued that the previous discussion on the constitutionality of the Sedition Act in the criminal case was incidental and did not address the specific challenge to Section 3(3) of the Act. The Federal Court overturned this decision, ruling that the originating summons amounted to an abuse of process due to the failure to challenge Section 3(3) in the earlier criminal proceeding. It dismissed the summons without delving into the merits of the constitutional challenge and reinstated the decision of the High Court, directing the trial to proceed in the Shah Alam Sessions Court.

Facts

On February 7, 2011, Mat Shuhaimi Bin Shafiei, the Respondent, a Malaysian politician and Member of the State of Selangor’s General Assembly, was charged with the offence of publishing a seditious publication under Section 4(1)(c) of the Sedition Act. Shuhaimi published an article titled “Pandangan saya berasaskan Undang-Undang Tubuh Kerajaan Negeri Selangor, 1959 [My opinion is based on the Constitution of the State of Selangor, 1959].”

The Respondent pleaded not guilty to the charge and filed a criminal application in the High Court seeking to strike out, set aside, quash, or stay the criminal prosecution against him, arguing that Section 4 of the Sedition Act was inconsistent with Article 10 [freedom of expression] of the Federal Constitution and therefore void. The High Court, followed by the Court of Appeal, dismissed the application, affirming the validity of Section 4(1)(c) of the Sedition Act. The Court of Appeal directed the Respondent to appear before the Sessions Court for the case to be heard on its merits.

On September 15, 2014, the Respondent filed an originating summons before the High Court, seeking a declaration that Section 3 of the Sedition Act 1948, read with Section 4, violates Article 10(1)(a) of the Federal Constitution and is thus null and void. On February 23, 2015, the High Court dismissed the Respondent’s application for a declaration, characterizing it as an abuse of the Court process. The High Court viewed it as an attempt to revisit the constitutionality issue of Section 4 of the Sedition Act, which had already been resolved by the Court of Appeal in the Respondent’s previous criminal application. This attempt was deemed an effort to reopen a settled matter, leading the Court to invoke the principle of res judicata and dismiss the Respondent’s action.

The Respondent filed an appeal before the Court of Appeal. Before the Court of Appeal, the Respondent contended that Section 3(3) of the Sedition Act, which eliminates the requirement to prove intention in sedition charges, represented an unjustifiable infringement on fundamental rights. The Respondent emphasized that mens rea, or the proof of intention, has traditionally served as a cornerstone of criminal law, ensuring that culpability is established based on evidence. By negating the relevance of intention in sedition cases, Section 3(3) undermined this longstanding legal principle. [paras. 8-9, Court of Appeal Decision]

Furthermore, the Respondent asserted that the exclusion of intention as a necessary element in sedition charges was disproportionate and unreasonable. The Respondent highlighted that while Article 10(2)(a) of the Federal Constitution permits laws aimed at preserving national security or public order, such laws must still adhere to the principles of proportionality. Section 3(3), in its current form, failed to meet this standard, as it restricted freedom of expression without adequate justification. In conclusion, the Respondent sought a declaration that Section 3(3) of the Sedition Act, when read together with Section 4, was inconsistent with the equality provisions of the Federal Constitution. Alternatively, they proposed that Section 3(3) should be interpreted in a manner that aligns with constitutional guarantees of freedom, while still allowing for reasonable restrictions as permitted under Article 10. [paras. 10-13, Court of Appeal Decision]

On November 25, 2016, the Court of Appeal allowed the appeal and reversed the High Court’s decision. Judge George of the Court of Appeal addressed three key questions in its decision regarding the Respondent’s appeal. Firstly, it considered whether the doctrine of res judicata precluded the Respondent from seeking the declaration in the present case. Secondly, the Court analysed the concept of proportionality with legislative restrictions imposed to achieve the objectives of Article 10(2) of the Federal Constitution. Lastly, the Court examined the legal effect of Section 3(3) of the Sedition Act, which eliminates the need to prove intention in sedition charges. [paras. 12-15, Court of Appeal Decision]

On the issue of res judicata, Judge Varghese critiqued the lower court’s decision, asserting that it had misconstrued precedent. Highlighting the error made by the lower court in considering the challenge as posing an identical question, Judge Varghese elucidated that the Respondent’s challenge to Article 3(3) was distinct and substantive. He emphasized that this challenge, particularly concerning its failure to meet the proportionality test as per Malaysian legal principles, warranted separate consideration. Judge Varghese underscored the novelty of the question regarding the proportionality of Article 3(3) in relation to Article 10(2) of the Federal Constitution, noting that it had not been previously adjudicated upon. [paras. 17-24, Court of Appeal Decision]

Judge Varghese proceeded to address whether the proportionality test was applicable to Article 3(3) of the Sedition Act in line with the objectives outlined in Article 10(2) of the Federal Constitution. Drawing on recent Malaysian Supreme Court rulings that applied the proportionality test to Article 4 of the Sedition Act, he asserted that the same objectives of Article 10(2) justified its application to Article 3(3) as well. Consequently, Judge Varghese concluded that since Article 4 was subjected to the proportionality test, Article 3(3) should also undergo the same scrutiny. [paras. 25-29, Court of Appeal Decision]

In his final determination, Judge Varghese highlighted that Article 3(3) of the Sedition Act imposed an excessively restrictive limitation on freedom of speech concerning the government’s objectives. He noted that the language used in Article 3(3) [“shall be deemed irrelevant”] effectively disregarded the mens rea element in sedition offences, without allowing for any rebuttable presumption or lesser standard. Given that mens rea is typically a fundamental component of criminal offences in modern democracies, and strict liability crimes are generally disfavoured, Judge Varghese found the provisions in Article 3(3) to unduly curtail freedom of speech without being proportional to the government’s aims. In conclusion, the Court declared Section 3(3) of the Sedition Act unconstitutional, rendering it “invalid and of no effect in law.” [paras. 30-38, Court of Appeal Decision] Consequently, the Court allowed the appeal, setting aside the High Court’s decision. It granted the Respondent’s prayer for a declaration, stating that Section 3(3) of the Sedition Act 1948 contravenes Article 10 of the Federal Constitution and is therefore invalid. [paras. 43-44, 46, Court of Appeal Decision]

The Government of Malaysia (Kerajaan Malaysia) filed an appeal before the Federal Court of Malaysia against the Court of Appeal’s ruling.

Decision Overview

Chief Justice of the Federal Court of Malaysia, Ahmad Maarop, wrote the decision along with Justice Ramly Ali, Justice Balia Yusof, Justice Aziah Ali, and Justice Prasad Abraham. The primary issue before the Federal Court was to determine whether a challenge to the constitutionality of Section 3 of the Sedition Act 1948, made in civil proceedings after the same issue had been decided by the Court of Appeal in a criminal appeal involving the same applicant, constitutes an abuse of the Court’s process. Additionally, the Court needed to ascertain whether such a challenge, made in civil proceedings, is barred by the principle of res judicata due to a previous similar challenge raised in criminal proceedings by the same applicant. Furthermore, the Court was tasked with determining whether Section 3(3) of the Sedition Act 1948 violates Article 10 of the Federal Constitution, rendering it invalid and having no legal effect.

The Government of Malaysia’s submissions revolved around the contention that the challenge to the constitutionality of Sections 3 and 4 of the Sedition Act in the present civil proceedings duplicates issues already adjudicated in previous criminal proceedings. The Government asserted that the matter regarding the constitutionality of Section 4(1)(c) of the Sedition Act was thoroughly addressed in the prior case of Mat Shuhaimi bin Shafiei v Public Prosecutor [2014] 2 MLJ 145 (“Shuhaimi I”), wherein the Court of Appeal upheld the constitutionality of the entire Section 4 of the Sedition Act. The Government contended that Section 4 must be read in conjunction with Section 3, and thus, challenging Section 4(1)(c) separately in civil proceedings amounts to circumventing the decision made in Shuhaimi I. The Government referred to Hunter v Chief Constable of West Midlands and another [1981]; Tractors Malaysia Bhd v Charles Au Yong [1982]; and Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] and contended that presenting the case in “installments” is improper and that the constitutionality of Section 3(3) cannot be litigated separately from Section 4. [para. 12]

The Respondent contended that the previous Court of Appeal’s consideration of the constitutionality of the Sedition Act in a criminal case was merely incidental (obiter dicta) and not the main focus of the Court’s decision. The Respondent emphasized that Section 3(3) of the Sedition Act, which deems intention irrelevant in proving an offence, was not addressed or challenged in the previous case. Therefore, the Respondent asserted that the present civil proceedings are not an abuse of the Court process or subject to res judicata. Regarding res judicata, the Respondent contended that the conditions for its application are not fully met in this case. The Respondent referred to the Supreme Court of India decision in Nand Kishore v State of Punjab [1995] to argue that challenges to the constitutionality of a statute are not subject to res judicata. They also pointed out that the specific issue of the constitutionality of Section 3(3) was not “necessarily and with precision” determined in the prior case, as required for res judicata to apply. Drawing on the judgments in Tong Lee Hwa & Anor v Lee Yoke San [1979] and Chua Wee Seng v Fazal Mohamed [1971], the Respondent contended that the earlier Court did not conclusively decide on the constitutionality of Section 3(3) of the Sedition Act. Therefore, the current originating summons should be considered on its merits without being dismissed based on res judicata or abuse of process. [paras. 13-18]

The Federal Court found that the Court of Appeal failed to address the crucial issue of whether the originating summons constituted an abuse of the legal process. [para. 41] While the Court of Appeal discussed the concept of res judicata, it did not consider whether the summons amounted to an abuse of process. [para. 40] The Federal Court clarified that abuse of process and res judicata are distinct legal doctrines, although they both aim to uphold the principle of finality in litigation and prevent parties from being vexed twice in the same matter. [para. 41] Additionally, the Federal Court emphasized that even if res judicata did not apply, the originating summons could still be dismissed if it was deemed an abuse of process. [para. 43]

Furthermore, the Federal Court outlined the approach to determine whether the originating summons constituted an abuse of process, drawing from legal precedent. [paras. 44 and 47] The Court began by examining the notice of motion filed in the criminal proceeding to understand the Respondent’s intentions. [para. 44] It noted that the Respondent sought to challenge the constitutionality of Section 4 of the Sedition Act in the criminal case. [para. 49] However, the Court of Appeal held that the Sedition Act, being a pre-Merdeka law, was governed by a different constitutional provision and dismissed the challenge. [para. 50] Despite the arguments presented by the appellant regarding constitutional tests, the Court of Appeal upheld the constitutionality of the Sedition Act, citing precedents and constitutional provisions. [para. 53]

The Federal Court examined the interplay between the originating summons filed by the Respondent and the constitutional challenge regarding Section 3(3) of the Sedition Act. [paras. 60-62] It highlighted that while the Respondent’s initial affidavit lacked specific reasons for the constitutional violation, subsequent submissions clarified the grounds for challenging the constitutionality of the Section. The Court emphasized the importance of raising all relevant issues in the appropriate legal proceedings and noted the failure to challenge the constitutionality of Section 3(3) in the earlier criminal proceedings. [paras. 60-62] Moreover, the Court elucidated the significance of Section 3(3) of the Sedition Act in proving the commission of offences under the Act, particularly in cases involving seditious publications. [paras. 64-69] It underscored that once the seditious tendency of a publication is established, the Respondent’s intention becomes irrelevant, as mandated by Section 3(3). This provision formed the crux of the Respondent’s challenge, asserting its unconstitutionality due to its imposition of strict liability and disproportionate legislative response.

Furthermore, the Federal Court addressed the applicability of the doctrine of res judicata to challenges on the constitutionality of statutes. [paras. 70-72] It rejected the argument that res judicata did not apply to such challenges, asserting that the doctrine serves the public interest of finality in litigation. Drawing from legal precedent, the Court affirmed that constructive res judicata could indeed apply to challenges regarding the constitutionality of statutes, emphasizing the importance of raising all relevant issues in a timely manner during legal proceedings.

In conclusion, the Federal Court found that the originating summons constituted an abuse of process due to the failure to challenge the constitutionality of Section 3(3) in the earlier criminal proceeding. Consequently, the Court dismissed the originating summons without delving into the merits of the constitutional challenge. The decision of the Court of Appeal was overturned, reinstating the decision of the High Court and ordering the trial to proceed in the Shah Alam Sessions Court. [paras. 79-82]