Last Updated: 5:49pm, Jun 27, 2014

KUALA LUMPUR (June 27): Blogger and activist Haris Ibrahim failed in his attempt to strike out the sedition charge against him, after the High Court accepted the government's argument that the matter should be heard at the Sessions Court where he  was charged.

Haris was charged on May 29 last year for allegedly giving seditious speeches at a post-GE13 gathering at the Kuala Lumpur and Selangor Chinese Assembly Hall on May 13 last year. He was charged along with PKR vice-president Tian Chua, PAS member Datuk Tamrin Abdul Ghafar and activists Hishamuddin Rais, Adam Adli and Safwan Anang.  

Haris' lawyers Gobind Singh Deo and Malik Imtiaz Sarwar had filed an application at the High Court to strike out the charge, arguing that the Sedition Act 1948 is unconstitutional.

The government however raised preliminary objections which were heard today.

Deputy Public Prosecutor Yusaini Amer Abdul Karim argued that the application should be thrown out because the matter originated in the Sessions Court and therefore the High Court does not have the jurisdiction to hear the matter as per Section 30 of the Courts of Judicature Act. The Sessions Court has yet to hear Haris' matter.

"The (High Court) does not have original jurisdiction because it started at the Sessions court. Only inherent jurisdiction is left," he argued, adding that such application which touched on constitutional  effect cannot be referred straight to the High Court without reference to the Sessions Court.

‘Sedition Act was not passed by Parliament, therefore void’

Gobind, in his reply, argued that this was not an application which would change the effect of the Federal Constitution as it was the reference point.

Rather the application was to question the validity of the Sedition Act as it was not passed by the Malaysian Parliament, but just a piece of legislation adopted from pre-Independent law.

"Affidavit is clear. We are not challenging any constitutional provisions. There is no challenge. There is no question on the effect of the Federal Constitution," he said.  

Central to the applicants' argument is that the Sedition Act is void as it was not enacted by Parliament.

Gobind, argued that the application is based on Article 10(2)(a) of the Federal Constitution which states that only Parliament can pass laws to impose restrictions which is deemed necessary in the interest of security.

He pointed out that there was a precedent in 1992 –  Kelantan State Assembly and Anor v Nordin Salleh and Anor - where the courts ruled that only Parliament specifically is empowered to enact laws that restrict freedom.

Highlighting the pertinence of this case to reporters later, Gobind said that the Kelantan assembly had passed anti-hopping laws. However the courts later ruled that this legislation passed was void as only Parliament can pass legislation pertaining to freedom of expression which in this case concerns freedom of association.

The applicants argued that the Sedition Act was revised by a Law Revision Committee in 1969, not the Parliament.

High Court Judge Kamardin Hashim ruled that the preliminary objection was allowed. However he noted that the High Court does in fact have the jurisdiction to decide if an act of Parliament was indeed constitutional.

However, he said that because the matter is before the Sessions Court, Section 30 of the CJA does come into play if and when the matter of constitutionality is brought up later at the Sessions Court.  

Gobind then requested for a stay as the trial was set for next week. Stay was granted and Kamardin's decision will be appealed at the Court of Appeal.

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