[51] The Court then said, it is an offence to act, speak, or publish statements with “seditious
tendency” [as provided in section 2 of Act 15]. The prosecution need not prove that the words were
Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] MYFC 2
true or otherwise. Then referring to section 3(3) of Act, the Court said that:
“Act throws the net wider in favour of the prosecution. In the present form under section 3(3) of
the Sedition Act, the intention of the maker of the statements in making those statement is
irrelevant. It is also not an essential ingredient of the offence under section 4(1)(c) of the
Sedition Act for the prosecution to prove that the statements made will incite [or had incited]
violence or public disorder ...
... Based on the authority of PP v Ooi Kee Saik (supra), the truth of the statement is also
irrelevant.”
[52] It is opportune at this stage to reproduce the submission of learned counsel for the respondent in
the Court of Appeal:
“[49] Learned counsel for the appellant complained that a person who makes a statement which:
(a) is not seditious; and
(b) made in good faith with a bona fide intention; or
(c) contains the truth of the matter;
would still be liable to be convicted for sedition under the Sedition Act.
[50] Learned counsel for the appellant lamented that the position is absurd, untenable and
unreasonable.
[51] ... the Sedition Act does not distinguish between two categories of individuals, namely:
(a) those who are genuine in their speech and who speak the truth; and
(b) those who are not genuine and who wish to incite hatred and violence.
[52] ... the sting of the Sedition Act contravened art 8 and 10 of the Federal Constitution
following the guidelines of the Federal Court cases in Sivarasa Rasiah v Badan Peguam
Malaysia & Anor [2010] 2 MLJ 333; [2010] 3 CLJ 507 (FC); and Lee Kwan Woh v Public
Prosecutor [2009] 5 MLJ 301; [2009] 5 CLJ 631 (FC).
[53] ... the crux of the legal challenge centred on s 4(1)(c) of the Sedition Act which is said to be
inconsistent with art 10(1)(a) of the Federal Constitution read with the right to equal protection
of the law as encapsulated in art 8(1) of the Federal Constitution thereby rendering the said s
4(1)(c) to be unreasonable and/or disproportionate to the mischief it seeks to curtail.”
[53] It was argued on behalf of the appellant that whether the Sedition Act 1948 is considered to be a
preMerdeka law or a postMerdeka law, the tests to be applied in a constitutional challenge of the
kind as advanced by the appellant would be the same. It was submitted that the appropriate tests to
be applied would be by way of considering the following questions:
(a) Whether section 4(1)(c) of the Sedition Act 1948 restricts a person's right to freedom of
speech and expression?
(b) If the question is answered in the affirmative, then the next question to pose would be whether
MALAYSIAN JUDGMENTS
Page: 22 of 39
the restriction is unreasonable and/or disproportionate to its objective?
(c) Should the answers to both questions be in the affirmative, then the court is empowered under
art 162(6) and (7) of the Federal Constitution to repeal the preMerdeka legislation which is
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