Section 3 (3) of the Sedition Act 1948 is unconstitutional because there is no need to prove the intention of the maker of sedition as it is considered irrelevant, a lawyer argued in the Court of Appeal today.

N Surendran said the Sedition Act is there to allow restrictions within the interest of public order, hatred and disaffection. However, that section restricts freedom of speech.

"The section makes the need to prove intention to be irrelevant, compared to other criminal acts such as murder or robbery, where intention needs to be proven.

"Section 3(3) is the most restrictive measure as it takes away intention. What my client Mat Shuhaimi Shafiei is seeking is not to challenge the offence of sedition," Surendran argued before the bench.

Their concern, he told the three-member Court of Appeal bench, is that Section 3(3) of the Sedition Act takes away mens rea (intention).

As a result of this, Surendran argued, the section is also disproportionate in law and this violates his client's right to his proper defence, especially under Article 10 of the Federal Constitution on freedom of expression.

Mat Shuhaimi, who is the Seri Muda assemblyperson from PKR, had filed an originating summons to have the Section 3(3) of the Sedition Act be declared unconstitutional.

Section 3(3) of the Act states that the intention of the person charged at the time he did or attempted (at seditious act) ... shall be deemed to be irrelevant if in fact the act had, or would, if done, have had, or the words, publication or thing, a seditious tendency.

The bench led by Justice Lim Yee Lan reserved its decision this case as this was the first time the argument to have that section declared unconstitutional had been made.

The two other members with him are Justice Varghese George Varughese and Justice Harminder Singh.

DPP Alice Loke represented the prosecution.

Charged because of blog posting

On Feb 7, 2011, Mat Shuhaimi, who is also the political secretary to Selangor Menteri Besar Azmin Ali, was charged in a Sessions Court in Shah Alam for posting an allegedly seditious article in his blog, srimuda.blogspot.com, on the appointment of Mohd Khusrin Munawi as the new Selangor state secretary.

He was alleged to have committed the offence at Pusat Khidmat Rakyat, Jalan Anggerik Vanilla, Kota Kemuning in Shah Alam on Dec 30, 2010.

Mat Shuhaimi had applied to strike off his sedition charge in the High Court in Shah Alam in 2011, which was under Section 3 of the Sedition Act, but this was dismissed on Aug 26, 2011. The ruling was also upheld by the Court of Appeal on May 17, last year.

The Sri Muda assemblyperson failed in his originating summons before the High Court in Kuala Lumpur in February last year, when Justice Asmabi Mohamad dismissed his application.

While Surendran submitted that this point was not raised earlier, Loke submitted otherwise, that this was raised in the striking out application the last time, which was dismissed.

The DPP said intention was not an ingredient of the offence as what was required to be proven was the act, which had seditious tendency.

She cited the court case in the Public Prosecutor vs Param Cumaraswamy case and also the Azmi Sharom's case where mens rea was irrelevant from the construction of Section 3 (1).

“Hence, this application should be dismissed,” Loke said.

Outside court, lawyer Latheefa Koya, who appeared with Surendran, told reporters said if intention was not important why did the prosecutor drop its prosecution on Perkasa president Ibrahim Ali, when he was quoted as saying “burn the bibles” but he was not charged as then attorney-general Abdul Gani Patail said there was no intent.

“This shows intention is important,” she said.

Latheefa also said in Azmi's case, he was expressing his academic and legal opinion, and subsequently the AG Mohamed Apandi Ali also decided to drop the sedition prosecution against the academician.