Content Regulation / Censorship, Political Expression, Religious Freedom
The Case of Hamad Al-Naqi (Kuwait Twitter Blasphemy Case)
Closed Expands Expression
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The Malaysian Federal Court of Appeal declared a section of the Sedition Act unconstitutional because it criminalized publication of seditious material without requiring the person charged to possess the requisite criminal intent (mens rea). The Court reasoned that virtually every crime required a proof of criminal intent, and that without it the law in question created a strict liability crime, which disproportionately restricted freedom of expression enshrined in Malaysia’s Federal Constitution.
On 7 February 2011, Mat Shuhaimi Bin Shafiei (“Shuhaimi”), a Malaysian politician and Member of the State of Selangor’s General Assembly, was charged with publishing allegedly seditious material for a December 2010 blog post containing the caption “Pandangan saya berasaskan Undang-Undang Tubuh Kerajaan Negeri Selangor, 1959” (“My opinion is based on the Constitution of the State of Selangor, 1959”). Before the trial took place, Shuhaimi filed a Notice of Motion with the trial court seeking to have the charge stricken from his record on the grounds that Section 4 of Malaysia’s Sedition Act – the provision under which he was charged – depended on the dismissal of any mens rea element typically required to prove criminality, and that this dismissal unconstitutionally restricted his Freedom of Speech and Expression as enshrined in Malaysia’s Federal Constitution, Article 10(1)(a).
Section 4 of the Sedition Act criminalizes the publication of messages carrying “a seditious tendency.” Section 3(3) of the Sedition Act states 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 does not matter whether a defendant harbored a seditious intent so long as the material published was seditious “in fact”.
Shuhaimi 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 Malaysian 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 Malaysian Federal Constitution, 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. Shuhaimi 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, Shuhaimi 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 Shuhaimi’s 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. Shuhaimi 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).
Shuhaimi then lodged the current application before the Malaysian Federal Court of Appeal.
Judge George Varghese, writing for the majority of a three-judge panel, addressed three issues in his opinion: (1) whether the appellant was precluded by the doctrine of res judicata; (2) whether the proportionality test could be properly applied in light of the objectives set out in Article 10(2) of the Federal Constitution; and (3) if the proportionality test applies, whether Article 3(3) of the Sedition Act can withstand it.
On the first issue, res judicata, Judge Varghese found that the lower court judge had misapplied precedent in reaching its decision. Noting that the lower court was “clearly in error when stating that an ‘identical question’ was posed,” Judge Varghese explained that Shuhaimi’s challenge to Article 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 Article 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.”
Judge Varghese then turned to the question of whether the proportionality test could be applied to Article 3(3) of the Sedition Act under the objectives set out in Article 10(2) of the Federal Constitution. Citing recent Malaysian Supreme Court jurisprudence applying the proportionality test to Article 4 of the Sedition Act, Judge Varghese noted that the same Article 10(2) objectives that justify an application of proportionality to Article 4 of the Sedition Act also apply to Article 3(3). Therefore, Judge Varghese found that, because Article 4 was subject to the proportionality test, Article 3(3) of the Sedition Act should also be subject to the proportionality test.
Finally, Judge Varghese found that Article 3(3) of the Sedition Act placed a disproportionate restriction on speech in light of the government’s aims in this regard. The Judge noted that the language of Article 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 Article 3(3) of the Sedition Act were simply too restrictive on speech to be proportionate to the government’s objectives. Accordingly, the Court ruled that Section 3(3) of the Sedition Act was unconstitutional, calling it “invalid and of no effect in law.”
Shuhaimi will still face criminal charges under Article 4 of the Sedition Act, but the prosecution will now be required to demonstrate seditious intent.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression, at least temporarily; the decision is likely to be appealed to Malaysia’s Supreme Court. For now, the case strikes down a longstanding provision of Malaysia’s Sedition Act, which made it possible for the government to criminally prosecute an individual for “seditious” speech without proving that the individual had seditious intent. Although this case does not do away with the crime of seditious speech itself, if the precedent set in this case stands, Malaysia’s prosecutors will be required to demonstrate criminal intent in charges under the Sedition Act of 1948.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Malaysia is a common law country. This case is binding upon Malaysia’s courts of first instance.
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