Noorbahri Baharuddin said Sri Muda assemblyman Mat Shuhaimi Shafiei, who is facing a sedition charge, could not raise the validity of Section 3 (3) of the Sedition Act in his civil application now as it was impliedly argued previously.
“It is not right for the respondent (Mat Shuhaimi) to use the civil case to circumvent his criminal trial,” the government lawyer submitted before a five-man bench chaired by Chief Judge of Malaya Ahmad Maarop.
However, lawyer Gopal Sri Ram, appearing for Mat Shuhaimi, said the point raised in this case was not argued in the first criminal application.
“The present case is about the prosecution having to prove the element of intention (mens rea) in sedition cases and this was never decided in the criminal application,” he said.
Sri Ram said Section 3 (3) stated intention was irrelevant but his client’s position was that the provision was unconstitutional.
Ahmad said the bench would deliver its ruling on a date to be fixed.
Should the court dismiss the issue raised by the government, the bench would proceed to hear whether Section 3 (3) of the Sedition Act contravened Article 10 of the Federal Constitution.
However, if the application is allowed, Suhaimi, who is political secretary to the Selangor menteri besar, would have to return to the Sessions Court to face his sedition charge.
On Feb 23, the government obtained leave to appeal from the Federal Court a ruling delivered by the Court of Appeal on Nov 25 last year.
The Court of Appeal’s three-man bench, led by Justice Lim Yee Lan, had allowed Mat Shuhaimi’s appeal and declared that Section 3 (3) was unconstitutional as it violated the right to freedom of speech and expression.
The Court of Appeal’s ruling means the prosecution now has to prove intent before a person can be convicted of sedition.
Mat Shuhaimi was charged with sedition on Feb 7, 2011 over a blog posting which he was accused of making on Dec 30, 2010 at Pusat Khidmat Rakyat on Jalan Anggerik Vanilla, Kota Kemuning, Shah Alam, Selangor.
On April 1, 2011, he filed a notice of motion at the High Court in Shah Alam seeking to have his sedition charge struck out on grounds that the Sedition Act was unconstitutional as it conflicted with Article 10 of the Federal Constitution, which guaranteed freedom of speech.
His application to strike out the charge was dismissed by the High Court but was later upheld by the Court of Appeal in 2013.
In September 2014, he filed an originating summons to challenge the constitutionality of the Sedition Act but the High Court dismissed the suit.
In allowing Mat Shuhaimi’s appeal, the Court of Appeal had invariably struck out the charge and he was not required to stand trial in the Sessions Court.