By Hafiz Yatim | The Edge Malaysia
“Wouldn’t it be better for the matter to be heard and decided by the High Court, and then all matters considered on appeal at the Court of Appeal and then the Federal Court, rather than have the apex court decide on this issue and have the lower courts bound on it?” — Court of Appeal President Datuk Seri Abu Bakar Jais.
A five-member Federal Court bench has declined to answer the four referral questions posed by former prime minister Tan Sri Muhyiddin Yassin with regards to his sedition case, and has remitted the matter back to the High Court for trial.
The judiciary’s No 2, Court of Appeal President Datuk Seri Abu Bakar Jais, who led the bench, said this after Muhyiddin’s lead counsel Datuk Amer Hamzah Arshad of Messrs AmerBon agreed not to proceed with the referral after consulting with Muhyiddin and the prosecution.
Amer Hamzah thanked the bench for the guidance provided and said that Muhyiddin’s legal team had taken instructions from their client.
“In light of, and in accordance with the panel’s advice, we have discussed with the respondent who accepts that this (the issues raised in the referral) is a live issue on intention, which can be properly raised and falls to be determined by the High Court at the substantive trial, and to be determined by the Court of Appeal and/or Federal Court should there be any appeals,” he said.
Following this, Amer Hamzah, who appeared with lawyers Chetan Jethwani from Messrs Chethan Jethwani and Rosli Dahlan from Messrs Rosli Dahlan Saravana Partnership, said they are not proceeding with the reference.
Four questions that were not decided
Muhyiddin had posed four questions of law with regards to intention concerning the Sedition Act 1948, especially when there are two conflicting judgments in the Court of Appeal with regards to the Mat Shuhaimi Shafie case.
In the Mat Shuhaimi case, the appellate court had found Section 3(3) of the Sedition Act 1948 to be constitutional; but in another challenge, a different bench had decided that Section 3(3) — which provides that the intention of the accused is irrelevant to a sedition charge — should be struck down as invalid as it is disproportionate to the freedom of speech.
Muhyiddin’s four referral questions were:
- Whether Section 4 read with Section 3(3) of the Sedition Act 1948 amounts to an unreasonable and disproportionate restriction to the freedom of speech and expression and/or renders the exercise of the freedom of speech and expression ineffective or illusory and therefore inconsistent with Article 10(1)(a) of the Federal Constitution;
- Whether Section 3(2) read with Section 3(3) of the Sedition Act 1948 (which renders the intention of the accused irrelevant for the purpose of proving the offence of sedition) is unconstitutional for being inconsistent with the right of a fair trial guaranteed under Article 5 read with Article 8 of the Federal Constitution;
- Whether statement, speech, or discussion in relation to Article 43(2)(a) (namely the Yang di Pertuan Agong to appoint the prime minister) of the Federal Constitution and/or the exercise of discretion under the said Article falls within and is covered under Section 3(2) read with Section 3(3) of the Sedition Act 1948; and
- If the answer to question (iii) is in the affirmative, whether it renders Section 3(1) of the Sedition Act 1948 disproportionate.
Bench cautioned on whether Muhyiddin wants apex court to decide
Abu Bakar, who sat with the High Court judge Datuk Seri Hashim Hamzah and Federal Court judges Datuk Rhodzhariah Bujang, Datuk Lee Swee Seng,and Datuk Mohd Nazlan Mohd Ghazali, had questioned whether parties were prepared in the hearing of the referral under Section 84 of the Courts of Judicature Act 1964 in wanting the apex court to answer the questions.
He said that while the apex court had not decided on the matter yet, he cautioned that should this apex court decide in the negative, it would be bound by the lower court and the matter would not be considered at the High Court.
“Wouldn’t it be better for the matter to be heard and decided by the High Court, and then all matters considered on appeal at the Court of Appeal and then the Federal Court, rather than have the apex court decide on this issue and have the lower courts bound on it?” he asked.
Abu Bakar also quizzed whether having the trial first would have sped up the matter, rather than have the referral be decided upon, to which Amer Hamzah disagreed.
Prior to this, deputy public prosecutor (DPP) Saiful Hazmi Mohd Saad, who appeared with DPPs Datuk Ahmad Sazali Omar and Nadia Mohd Izhar, indicated that they would be making a preliminary objection on the referral and this resulted in the exchange with Amer Hamzah.
Following the defence deciding not to proceed with the referral, Abu Bakar said the bench declined to answer the questions, with the case to be remitted to the High Court where the defence would have the opportunity to raise the issue there.
“The trial may take months or a year,” the judge said.
On Aug 28 last year, High Court judge Datuk Muhammad Jamil Hussin allowed Muhyiddin to refer the four questions to the apex court for determination.
Muhyiddin, who is the Pagoh member of Parliament and Parti Pribumi Bersatu Malaysia president, was charged with sedition in August 2024, over comments where he allegedly questioned the then-Yang di-Pertuan Agong’s discretion in not summoning him to form the government following the 2022 election, as he claimed to have the support of 115 out of 222 parliamentarians.
The charge, under Section 4(1)(b) of the Sedition Act 1948, is punishable by a maximum fine of RM5,000, imprisonment of up to three years, or both, upon conviction.
Muhyiddin was first charged at the Gua Musang Sessions Court. The case was then transferred to the Kota Bharu High Court, following an application by his legal team. His legal team then once again asked for a transfer, this time to the Kuala Lumpur High Court to hear the case. The ex-PM has claimed trial.
Edited By Aniza Damis
