SEDITION cases nationwide may be put in limbo after the Federal Court failed to resolve the constitutionality of a section of the Sedition Act today.

A five-judge panel, led by Justice Wira Ahmad Haji Maarop, unanimously ordered criminal proceedings to commence for PKR assemblyman Mat Shuhaimi Shafiei, who had been charged under the act in 2011 for posting a seditious publication in his blog.

The other judges on the panel are Zaharah Ibrahim, Prasad Sandosham Abraham, Jeffrey Tan and Alizatul Khair Osman Khairuddin.

Federal prosecutors, in seeking leave to appeal the Appeals Court decision by then High Court judge George Varughese in 2016, had posed a question whether Section 3(3) of the Sedition Act contravenes Article 10 of the Federal Constitution and is therefore invalid and of no effect in law.

The panel today had set aside the 2016 ruling that Section 3(3) of the Sedition Act was unconstitutional.

Justice Ahmad said: “There is no necessity for the court to consider the leave question. We order that the trial of the respondent to proceed at the Shah Alam Sessions Court.”

Shuhaimi’s hearing was fixed for mention on Wednesday.

The subsection allows government prosecutors to charge someone with sedition without proving intent. Suhaimi, who is Sri Muda assemblyman in Selangor, first challenged his criminal charge in 2011, saying it was unconstitutional.

In its decision today, the panel also upheld a 2015 High Court ruling by Justice Asmabi Mohamad, who dismissed Shuhaimi’s civil action.

Asmabi had also dismissed an application to stay the proceedings at the High Court while the respondent referred a question of law to the Federal Court for determination, calling it an “abuse of the court process.”

Asmabi had also ruled that intention of the person charged of sedition is irrelevant and it was enough to prove their remarks had seditious tendency.

It was this decision that Varughese later overturned, saying it was unconstitutional.

Ahmad added today that the panel found it “unnecessary” to answer two other questions by federal prosecutors.

The first question was whether it would be an “abuse of the process of court” to challenge the constitutionality of the Sedition Act’s Section 3 in civil proceedings, when the Court of Appeal had already decided on the same issue in a criminal appeal.

The second was whether such a challenge via civil proceedings is “res judicata”, a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same parties, as Mat Shuhaimi has previously made a similar challenge in criminal proceedings.

The court held that Shuhaimi had abused court process in his attempt to mount a civil challenge against his original criminal charge.

“We hold that question one is an abuse of process, for this alone the question should have been dismissed,” Ahmad added.

Meanwhile, a request for RM50,000 in costs by senior federal counsel Awang Armadajaya Awang Mahmud for “enormous” research and preparation for the case was rejected by the panel.

“This appeal should not have been allowed in the first place. It has caused the criminal trial to be stalled and it would encourage others to use this method to have their (trials) stalled,” Awang said in his request.

“We didn’t ask for costs in the Court of Appeal. They shouldn’t either,” said Suhaimi’s lead counsel Gopal Sri Ram. “It is a matter of public interest. It is a matter of freedom of speech.”

The panel ordered no costs to be paid.

Awang told reporters later that he was pleased with today’s outcome.

“What the Federal Court found was that it was an abuse of process; (if) you can’t succeed in the criminal trial, you go for civil mode.

“This actually can be very disruptive for trials, and apart from that it becomes a backdoor. The danger will be every accused person who has been convicted will go by way of civil mode, there’s no finality in things.

“There will be interference, criminal against civil and civil against civil. We are grateful to the court for clearing the air… in setting aside the judgement of the Court of Appeal,” Awang said.

Gopal, who is a former Federal Court Judge, did not to comment to reporters.  

On February 7, 2011, Shuhaimi was charged in the Shah Alam Sessions Court with posting allegedly seditious material on his blog.

He allegedly posted on the material on December 30 with the caption “Pandangan saya berasaskan Undang -Undang Tubuh Kerajaan Selangor, 1959”.

Shuhaimi kept his Sri Muda seat in the 2013 general election. If fined more than RM2,000, he will be stripped of his legislative seat and barred from politics for five years. – January 8, 2018.