[47] Applying the approach explained in Johnson (supra), we begin determining whether Encl. 1 in
the Originating Summons is an abuse of the process by examining the Notice of Motion filed in the
criminal proceeding. In the Notice of Motion, what the respondent wanted was to have the criminal
prosecution on the charge for an offence under section 4(1)(c) of Act 15, instituted against him be
Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] MYFC 2
struck out and/or set aside and/or quashed [prayer (1)]. He also wanted the Court to acquit and
discharge him of the said charge [prayer 2]. Those were the purposes. To achieve those purposes, he
prayed for an order that section 4 of Act 15 be held to be inconsistent with Article 10 of the Federal
Constitution and therefore void. The grounds supporting the respondent’s application in the Notice
of Motion are as follows:
“(i) The charge against the appellant under the Sedition Act is contrary or not consistent with art
10 of the Federal Constitution read together with art 5 and art 9 of the Federal Constitution and
it is therefore void and invalid by virtue of art 4 and/or art 162 of the Federal Constitution.
(ii) The Sedition Act does not comply with art 10 cl (2)(a) of the Federal Constitution (which
permits law that restricts the freedom of expression for several objectives) and it cannot
objectively be said to be a reasonable restriction nor does it fulfill the objective in art 10 cl (2)
(a) of the Federal Constitution and it is wholly disproportionate to the valid reason permitted by
law to restrict the fundamental right of the appellant under the Federal Constitution.”
[48] The Shah Alam High Court dismissed the motion. The Court held that section 4 (1)(c) of Act 15
is not ultra vires the Federal Constitution. In the Court of Appeal, learned counsel for the
respondent [the appellant before the Court of Appeal] submitted that:
“That s 4(1)(c) of the Sedition Act 1948 (Act 15) read with the definition of 'seditious tendency'
in s 3 of the same Act amounts to an unreasonable restriction of the appellant's right to 'freedom
of speech and expression' under art 10(1)(a) of the Federal Constitution and that being the case,
s 4(1)(c) of the same Act is rendered unconstitutional and should be struck out.”
[49] The Court of Appeal held that being a pre Merdeka law, Act 15 is governed by Article 162 of the
Federal Constitution. Section 4(1) of Act 15 was not caught within the purview of Article 4(1) of
the Federal Constitution. Since Act 15 was enacted in 1948, any application to declare the
impugned law null and void for being inconsistent with Article 4 of the Federal Constitution must be
dismissed and it was grounded on the wrong premise.
[50] The Court then considered the provisions under sections 4(1)(c), 3(1) and 3(2) of Act 15 and
Article 10(1)(a) and Article 10(2)(a) and (4) of Article 10. The Court held that the right to freedom of
speech and expression under Article 10(1)(a) of the Federal Constitution is only accorded to the
citizens and it is not absolute. No one can deny that there must be some restrictions to this right.
Reference was made to several authorities including Madhavan Nair & Anor v PP [1975] 2 MLJ
264, Lau Dak Kee v PP [1976] 2 MLJ 229, PP v Ooi Kee Saik & Ors [1971] 2 MLJ 108 and Fan
Yew Teng v PP [1975] 2 MLJ 235. The Court stated that Article 10(2)(a) of the Federal
Constitution allows Parliament to impose “such restrictions as it deems necessary or expedient”.
These constitutional restrictions impugned on the freedom of speech and expression.
[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
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
MALAYSIAN JUDGMENTS
Page: 21 of 39
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
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