[11] At the outset of the appeal, we directed parties to firstly, submit on the first two questions of law
referred to at paragraph 2 of this judgment. We indicated to parties that we would proceed to hear
submissions on the third question if the first two questions were decided against the appellant.
Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] MYFC 2
THE APPELLANT’S SUBMISSION
[12] Relying on his written submission, the thrust of the argument of the learned Senior Federal
Counsel (SFC) submitting for the appellant is as follows. What was in issue before the Court in the
Originating Summons which is the subject matter of the present appeal is section 3 and 4 of Act 15.
The crux of the matter had been decided by the High Court pursuant to the Notice of Motion filed in
criminal application No. 44722011, and the decision was affirmed by the Court of Appeal in
Criminal Appeal No: B0921209/2011 reported as Mat Shuhaimi Shafiei v PP [2014] [Shuhaimi I].
In the Notice of Motion in Shuhaimi I, the focus was on the constitutionality of section 4(1)(c) of Act
15. However, according to the learned SFC that section could not be read in isolation but must be
read with section 3 of Act 15. The latter section must be invoked to interpret section 4 of Act 15.
There are four paragraphs to section 4(1) of Act 15 which includes section 4(1)(c). One cannot
challenge��sections 4(1)(a), 4(1)(b), 4(1)(c), and 4(1)(d) of Act 15 separately. In this case the whole of
section 4 was held to be constitutional by the Court of Appeal in Shuhaimi I. It was argued that when
the respondent challenged the constitutionality of section 4, since that section must be read with
section 3, the respondent should not withhold the challenge and the argument on the constitutionality
of section 3(3) to be taken up later. One cannot present one’s case by instalments. It was contended
that it was not proper for the respondent to use the motion in the civil proceeding to circumvent the
decision of the Court made in the criminal proceeding [Shuhaimi I]. Referring to paragraph 18 in the
Court of Appeal’s judgment in Shuhaimi I, the learned SFC pointed out that the learned counsel for
the respondent submitted in the Court of Appeal that section 4(1)(c) of Act 15 read with the
definition of ‘seditious tendency’ in section 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, section 4(1)(c) of the same Act is rendered unconstitutional and
should be struck out. According to the learned SFC, the Court of Appeal responded to that
submission by holding that Act 15 was still good and valid law. It falls squarely within the framework
of Article 10(2) of the Federal Constitution and its validity and constitutionality could not be
challenged. The Court also held that section 4(1) of Act 15 did not infringe the reasonable and the
proportionality test by virtue of section 3(2) of Act 15, and hence it is constitutional. Paragraphs
[115] to [117] of the Court of Appeal’s judgment were referred to by the learned SFC. Therefore, he
submitted the respondent should not be allowed to litigate the constitutionality of section 3(3) of Act
on the same facts and point of law. In support of his submission, the learned SFC relied on Hunter v
Chief Constable of the West Midlands [1981] 3 All ER 727, Tractors Malaysia Bhd v Charles Au
Yong [1982] 1 MLJ 320, Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 CLJ
783.
THE RESPONDENT’S SUBMISSION
[13] Starting his submission, learned counsel for the respondent contended that the validity of Act 15
was not in issue before the Court of Appeal, in so far as the criminal case was concerned. Any
comment by the Court of Appeal as to the constitutionality of Act 15 as a whole was entirely obiter
dicta. Learned counsel referred to section 3(3) of the Sedition Act which provides that:
“(3) For the purpose of proving the commission of any offence against this Act the intention of
the person charged at the time he did or attempted to do or made any preparation to do or
conspired with any person to do any act or uttered any seditious words or printed, published,
sold, offered for sale, distributed, reproduced or imported any publication or did any other thing
MALAYSIAN JUDGMENTS
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shall be deemed to be Irrelevant if in fact the act had, or would, if done, have had, or the words,
publication or thing had a seditious tendency.”