A five-man bench chaired by Justice Zulkefli Ahmad Makinudin said the case had been improperly brought to the apex court.
“There is no compliance with the Courts of Judicature Act,” he said in setting aside a High Court order.
Following today’s ruling, the trial of activist Fahmi Reza, who is charged with improper use of network facilities or network service, under Section 233 (1) (a) of the Act, will start in the Sessions Court.
The case has been fixed for mention on Nov 8.
Fahmi is accused of intentionally using his Instagram account to post the edited image of Prime Minister Najib Razak with the intention of offending others on Jan 31, 2015
The offence carries a sentence of a year’s imprisonment or a RM50,000 fine, or both.
On June 6, last year, Fahmi pleaded not guilty to the charge.
Fahmi’s lawyers then filed an application at the High Court to strike out the charge on grounds that Section 233 (1) (a) is unconstitutional.
Despite a preliminary objection by the prosecution, the judge said he had the jurisdiction to hear the matter.
This resulted in the government referring the matter to the Federal Court to determine the legality of the section in light of Articles 8 and 10 of the constitution.
At the outset of the proceeding, Zulkefli said the bench was not inclined to see criminal proceedings held in installments.
Lawyer Gurdial Singh Nijar, who held a watching brief for the Bar Council, told reporters the Federal Court ruling meant that an accused person charged in the Sessions Court should raise constitutional issues before the trial judge.
“The Sessions Court could then refer the matter to the High Court whether to refer constitutional issues to the Federal Court,” he said.
Gurdial said the High Court should send back the matter for trial in the Sessions Court if there was no constitutional issue to be argued.
He said the High Court could not hear and decide on constitutional issues on a matter that originated from the Sessions Court.