PUTRAJAYA, July 17: The Federal Court has deferred its decision to another date to decide whether Sri Muda assemblyman Mat Shuhaimi Shafiei could re-relitigate on the validity of a provision in the Sedition Act 1948 which was decided in his criminal appeal.
Chief Judge of Malaya Tan Sri Ahmad Maarop chairing a five-man bench reserved the court’s judgment after hearing submissions in the prosecution’s appeal on two legal questions on the issue.
The two questions were whether a challenge to the constitutionality of Section 3 of the Sedition Act made in civil proceedings when the same had been determined in a criminal appeal involving the same applicant (Mat Shuhaimi) amounts to an abuse of the court process.
The other question is whether a challenge to the constitutionality of Section 3 of the Act made in civil proceedings is res judicata in view of a prior similar challenge in criminal proceedings by the same applicant.
Res judicata is a matter that has been adjudicated by a court and should not be pursued further by the same parties.
The prosecution led by head of the prosecution division in the Attorney-General’s Chambers Datuk Noorbahri Baharuddin contended that Mat Shuhaimi cannot re-litigate on the validity of Section 3 (3) of the Sedition Act regarding element of intention of a person charged with making seditious statements.
He said Mat Shuhaimi had already made a similar challengedto that section in his criminal proceeding which was already decided and could not raise the same issue again through a civil proceeding.
Noorbahri said it would be “a second bite of the cherry” for Mat Shuhaimi to re-litigate a similar issue by way of a civil proceeding after he was unsuccessful in the criminal proceeding.
Lawyer Datuk Seri Gopal Sri Ram, representing the assemblyman, argued that that Section 3 (3) of the Sedition Act was not raised or decided in Mat Shuhaimi’s criminal proceeding.
“This matter is not vexatious or an abuse of court process nor it is covered by the doctrine of res judicata,” he said.
Sri Ram said what was decided in Mat Shuhaimi’s criminal proceeding was on Section 4 of the Sedition Act.
Federal Court judges Tan Sri Ramly Ali, Datuk Balia Yusof Wahi, Datuk Wira Aziah Ali and Datuk Prasad Sandosham Abraham were the other judges on the panel.
The third legal question with regard to the constitutionality of Section 3 (3) of the Act would be heard depending on the court’s outcome on the first two questions.
The prosecution is appealing against the appellate court ‘s verdict on Nov 25, last year to declare section 3 (3) of the Act invalid.
Mat Shuhaimi, 49, filed a originating summons in September 2014 seeking the court to declare Section 3 and 4 of the Sedition Act invalid as he claimed the provisions violated the fundamental liberty of freedom of speech guaranteed by Article 10(1)(a) of the Federal Constitution. Section 4 deals with the penalty for the offence.
He is currently facing a sedition charge for allegedly posting seditious material on his blog at Pusat Khidmat Rakyat, Jalan Anggerik Vanilla, Kota Kemuning in Shah Alam on December 30, 2010.–Bernama