Special Series: Perspectives from Undergraduate Law Students
LL.B. Student Contribution
–Shukri Ahmad Shahizam, LL.B. Candidate, London School of Economics
In a long-awaited judgement with large ramifications on cases throughout the country the apex court in Malaysia, the Federal Court, has thrown a spanner into the works of constitutional challenges against restrictions on fundamental freedoms.
Mat Shuhaimi v The Government of Malaysia (Civil Appeal No. 01 (f)-6-03/2017(W)) (Federal Court) (‘Shuhaimi 3’) concerns a constitutional challenge against the Sedition Act 1948 on the basis that its criminalization of ‘sedition’ on a strict liability basis is unconstitutional.
The case was borne of the criminal prosecution of Selangor State Assemblyman Mat Shuhaimi Shafei under the Sedition Act for a blog post published in 2010 in which he expressed his views on an ongoing political matter relating to the Selangor State Government (‘the criminal case’). It was alleged that in doing so he fell foul of s 4(1)(c) of the Act which states that ‘Any person who—… prints, publishes, sells, offers for sale, distribute or reproduces any seditious publication… shall be guilty of an offence…’. Section 2 of the Act defines seditious publication as ‘one having a seditious tendency’, whilst s 3(1) lists instances of ‘seditious tendencies’.
In the criminal case, the constitutionality of the Act was challenged on the basis that it disproportionately curtailed the freedom of speech as guaranteed in Art 10(1) of the Federal Constitution, or that its enactment pre-independence means that it is constitutionally unable to do so. The challenge culminated in Court of Appeal’s finding that s 4(1) that it was a valid pre-independence law, its curtailment was both reasonable and proportionate and therefore it was constitutional (‘Shuhaimi 1’).
The case arose by way of originating summons before the High Court for a declaration that s 3(3) of the Act was unconstitutional. This was on the basis that in stating that ‘For the purpose of proving the commission of any offence against this Act the intention of the person charged… shall be deemed to be irrelevant…’, s 3(3) made the sedition offences ones of strict liability, and that doing so was disproportionate to the legitimate aim sought to be achieved.
In response, the government argued that the suit was an abuse of the court’s process as the matter was res judicata. This prevailed before the high court, which dismissed the originating summons on the basis that it was ‘scandalous, vexatious and embarrassing’ as the issue ‘had been resolved by the Court of Appeal’. No opinion was given on the merits of the challenge.
On appeal by the plaintiff, the Court of Appeal overruled the High Court, finding that the judge was ‘clearly in error when stating that an “identical question” had been considered and decided upon by the courts’. It considered the case to be a ‘novel constitutional challenge’. Therefore, res judicata did not apply and it was able to decide the merits. Subsequently, it decided that s 3(3) was disproportionate, taking note of the fact that the ‘lesser’ crimes of drug trafficking and corruption and the ‘similar’ crime of making ‘statements conducive to public mischief’ all required intent to be proven.
The Federal Court
In a unanimous decision, a five-person panel of the Federal Court allowed the appeal, finding that the case was an abuse of process and set aside the Court of Appeal’s judgment. Despite the Court of Appeal’s findings, no opinion was given in the merits of the challenge.
In short, the Court’s decision was based on a wide-encompassing notion of ‘constructive res judicata’  which includes not only grounds which have been litigated and decided by a competent court, but also those ‘which might and ought to have been made a ground of attack or defence’. It traces the doctrine to Henderson v Henderson and ‘applied’ the ‘approach’ expressed by Lord Bingham in Johnson v Gore Wood which requires a ‘broad, merits-based judgment’. It asserted that as the plaintiff had challenged the general validity of the Act in Shuhaimi 1, he ought to have challenged the particular validity of s 3(3) ‘because of the interplay between sections 4(1)(c), 2, 3(2), and 3(3)’. Finally, it denied that constructive res judicata has no applicability in constitutional cases, citing Indian Supreme Court Case of State of Haryana v State of Punjab.
Unfortunately, it is difficult to see the judgment as anything other than a backward step in the Court’s jurisprudence. Despite Malaysian courts’ longer history of deference to the legislative capacity of Parliament, the past several years have heralded a perceived resurgence of judicial power. The challenge itself was premised on proportionality as a constitutional requirement for administrative and legislative legality, which had rapidly and enthusiastically been imported into the constitutional sphere over the past decade. Further developments, including a widely acclaimed decision invalidating provisions which limited the courts’ jurisdiction, have led commentators to speculate whether the Court has ‘positioned itself to play a stabilizing and rights-enhancing role’ in the future of the country.
Notwithstanding the doctrinal framework in place, the courts have been reticent in applying their powers in the searching manner facilitated, and arguably necessitated, by proportionality. In this context, the Court of Appeal’s decision was seen as a welcome and significant of expression of judicial power which went to the heart of the courts’ role as constitutional firewatchers. Its robustly reasoned judgment, explicitly stating that ‘fundamental liberties… had now evolve to a stage’ where any legislation must ‘meet the test of proportionality’, evidenced the possibility of progressive jurisprudence despite doctrinal and historical indications to the contrary. Its declaration that s 3(3) is unconstitutional dealt a powerful blow to a long-maligned restriction on civil liberties and gave many a cause for hope.
However, it must be noted that the Federal Court itself is markedly more conservative and has tended to construe restrictions on legislative capacity more narrowly. Therefore, the effect of its judgment is, although unfortunate, not entirely unanticipated. Nonetheless, still striking is its complete evasion of the Court of Appeal’s reasoning on the merits themselves. There is no indication whatsoever whether it approves of the manner in which the issue was analyzed or the eventual conclusion. Whether the Court was merely exercising restraint or harboring other intentions cannot be discerned with any certainty.
Additionally, and more directly relevant to the decision, it is submitted that the court’s decision on res judicata is doctrinally and normatively inconsistent. First, its interpretation of the doctrines of abuse of process and constructive res judicata are premised on a perverse reading of authorities. Second, even in light of such a reading, the specifics of the challenge cannot reasonably said to fall under the doctrines.
In citing Johnson, the Court first unbolds and de-emphasizes and later omits entirely the following passage from Lord Bingham’s speech which provides context for its ‘broad merits- based’ approach:
… there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That it to adopt too dogmatic an approach to what should be in my opinion a broad, merit-based judgment…
Consequently, an authority for an approach which ought to have been favourable to the plaintiff had been turned into one for a wide-reading of constructive res judicata, and thus unfavorable to him.
The omission notwithstanding, even an application of the applied principle should have been favorable to the plaintiff. The approach in Johnson requires:
[a] broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.
Taking account ‘the public and private interests involved’ should also have led to the Court’s finding against an abuse of process. At the time of judgment, numerous prosecutions for sedition were pending before the lower courts, all of which were stayed awaiting its decision. Where it could have grasped the opportunity to produce legal certainty, it has instead deferred judgment on the merits to a later point in time. With its statement at  that ‘[the applicant] should have raised the constitutionality of section 3(3) of [the Act]’ in Shuhaimi 1, it all but explicitly indicates that such a challenge may still be made – but only within the context of criminal proceedings proper. Therefore, whilst potentially creating ‘finality of litigation’ in the most limited sense it has, of its own accord, created an unnecessary obstacle to legal certainty – necessary in the proper administration of justice – for pending defendants.
Finally, the substance of the challenge itself was sufficiently distinct from that in Shuhaimi 1 such that it should not have come within constrictive res judicata. Whilst the Court cited the ‘the interplay between sections 4(1)(c), 2, 3(1) 3(2), and 3(3)’ to support its conclusion that ‘when the respondent challenged the constitutionality of section 4(1)… he could not leave out the constitutionality of section 3(3)’.
However, this reasoning is flawed. If inspected closely, s 3(3) is distinct from both s 3(1) and s 3(2). In prescribing ‘seditious tendencies’, they supply actus reus elements pertaining to consequences. These are supplemented by elements in s 2 and s 4(1) which then all together fully define the acts reus requirements of substantive offences under the Act. Section 3(3) stands apart as a provision prescribing the mens rea requirement. Its placement under s 3 is presumably due to its use of the phrase ‘seditious tendency’, rather than its being part of its definition. Therefore, the Court’s note that the main point raised in Shuhaimi 1 was the constitutionality of s 4(1)(c) read with the definition of ‘seditious tendency’ in s 3 is irrelevant and does not lead to the conclusion that ‘the respondent should have challenged the constitutionality of s 3(3)… in [Shuhaimi 1]’.
It remains to be seen how the Federal Court’s complete disregard for the Court of Appeal’s well-reasoned finding of unconstitutionality will translate in future cases before it and lower courts. Its resort to a novel application of procedural restrictions premised on strained interpretations of authority to support its doing so without engaging whatsoever in the merits of the case, obiter or otherwise, is worrying. Let it not be said that such engagement is unnecessary, as now the Court of Appeal has only its own set-aside decision to rely upon as guidance on the s 3(3) matter. Any outcome bar an acceptance of its earlier decision, nullified value as precedent notwithstanding, would be farcical.
Wider concerns beyond the justice of the case itself involve the potential impact on constitutional challenges in general. Depending on how the judgment is treated as direct legal precedent or example for practice by other courts, there may be a chilling effect on potentially meritorious challenges. That the Court of Appeal accepted the applicant’s argument almost entirely is sufficient proof of the challenge’s merits. If even such a claim is to be ignored by the apex court, what could be said of its attitude towards more facially tenuous ones? At the very least, the Court has demonstrated that even in cases of fundamental liberties and where the basic liberty of a citizen is at stake, it is not willing to look beyond unnecessary formalisms in order to administer justice.
Broader still, the decision leads one to wonder this signals a retreat from the courts’ movements towards playing a more active role in policing constitutional rights. Time will tell whether it is an aberration, or a reversion towards the historical norm. One must hope that it is the former, and that any concerns otherwise are misplaced.
Suggested Citation: Shukri Ahmad Shahizam, One Step Forward, Two Steps Back? Constructive res judicata in Malaysian Constitutional Cases, Int’l J. Const. L. Blog, Jan. 31, 2018, at: http://www.iconnectblog.com/2018/01/one-step-forward-two-steps-back-constructive-res-judicata-in-malaysian-constitutional-cases
 Public Prosecutor v Mat Shuhaimi  2 Malayan Law Journal 145 (‘Shuhaimi 1’).
 Mat Shuhaimi v Kerajaan Malaysia  Malayan Law Journal Unreported 633 (HC)  (Asmabi Bt Mohmamad J).
 Mat Shuhaimi v Kerajaan Malaysia  1 MLJ 436 (CA)  (Varghese George JCA) (‘Shuhaimi 2’).
 ibid  (George Varghese JCA).
 Ibid - (George Varghese JCA).
 Mat Shuhaimi v The Government of Malaysia (Civil Appeal No. 01 (f)-6-03/2017(W)) (Federal Court) (‘Shuhaimi 3’)  (Ahmad Bin Haji Maarop CJM).
 Citing Government of Malaysia v Dato’ Chong Kok Lim  2 MLJ 74, 76 (Sharma J).
 (1873) 3 Hare 100 (Ch).
  2 AC 1 (HL).
 Shuhaimi 3 (n 6)  (Ahmad Bin Haji Maarop CJM).
  12 SCC 673.
 See Nasir Hashim v Menteri Dalam Negeri Malaysia  6 MLJ 213 (CA) for the introduction of proportionality in judicial review of administrative action and Sivarasa Rasiah v Badan Peguam Malaysia  2 MLJ 333 on its application in judicial review of legislation.
 Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat  3 MLJ (FC)
 Alec Stone Sweet and Jud Matthews, ‘Proportionality and Rights Protection in Asia: Hong Kong, Malaysia, Couth Korea, Taiwan – Whither Singapore?’ (2017) 29 SAcLJ 774, 795
 Shuhaimi 2 (n 3)  (Varghese George JCA)
 See, for example, PP v Azmi Sharom  8 Current Law Journal 921 (FC), and Public Prosecutor v Gan Boon Aun  3 MLJ 12 (FC).
 Shuhaimi 3 (n 6)  (Ahmad Bin Haji Maarop CJM).
 Ibid .
 Johnson (n 9) 32D (Lord Bingham)
 Ibid (emphasis added).
 Shuhaimi 3 (n 6) .