ON Nov 25, the Court of Appeal made a landmark ruling on the Sedition Act. The panel, consisting of Justices Datuk Varghese George Varughese, Datuk Lim Yee Lan and Datuk Harmindar Singh Dhaliwal, held Section 3(3) of the Sedition Act to be unconstitutional.
The section provides that the intention of the accused is irrelevant when proving a sedition charge.
The appeal was brought by Sri Muda assemblyman Mat Shuhaimi Shafiei, who challenged the constitutionality of the section at the High Court.
He was charged under Section 4(1) of the Sedition Act in 2011 over an article published in his blog. At the High Court, his application for a declaration that Section 3(3) is unconstitutional was dismissed. He then appealed to the Court of Appeal.
The Sedition Act criminalises “sedition” by making it an offence to do anything which has a “seditious tendency” or to utter any seditious words.
“Seditious” is defined in the Act as any act, speech, word, publication or other thing which qualifies one as having a “seditious tendency”.
One of the biggest criticisms of the Sedition Act is that by virtue of Section 3(3), intention is irrelevant. In other words, even if the accused person had absolutely no intention to be seditious and made the alleged seditious remarks innocently, it will have no bearing on the case.
Every law student will know that criminal offences have two elements: the guilty act (in Latin, actus reus) and the guilty state of mind (mens rea). A sedition charge only requires the guilty act to be proved.
The Sedition Act is a restriction of the constitutionally guaranteed freedom of speech and expression. The Federal Constitution allows Parliament to impose certain restrictions deemed necessary or expedient for certain purposes.
Therefore, one of the questions that the Court of Appeal needed to determine was whether this restriction was “proportionate” to the objectives of permitted restrictions set out in the Federal Constitution.
This is what is known as the proportionality test. A proportionate measure is one that is taken in order to achieve the objective. Anything more would be disproportionate, just as cracking open a nut with a sledgehammer is disproportionate since a nutcracker would suffice.
The Court of Appeal found that Section 3(3) did not meet the test of proportionality. There was no valid basis or justification for the section, considering that even cases of more socially abhorrent and heinous crimes still require proof of intention.
The Court of Appeal further found that Section 3(3) seeking to totally displace proof of intent for sedition offences was wholly unsustainable and a breach of the guarantee of equality before the law under the Federal Constitution.
Since Section 3(3) violates the equality provision under Article 8(1) of the Federal Constitution, the impugned section is therefore unconstitutional.
Equally as important, the Court of Appeal reiterated the Court’s role to ensure that an accused charged with an offence under the Sedition Act had a fair determination of the case against him, both procedurally and evidentially.
This judgment by the Court of Appeal should be lauded. For now, the Sedition Act is still part of our law, but at least some of its more reprehensible nature has been mitigated by the Court of Appeal.
Meanwhile, the campaign to repeal the Sedition Act must still continue so that we may one day be rid of this draconian legislation.
Syahredzan Johan is a partner of a legal firm in Kuala Lumpur with an interest in the laws that shape our country. He can be reached at firstname.lastname@example.org. The views expressed here are entirely the writer’s own.