PUTRAJAYA, Nov 13 — The Federal Court has granted the government leave to appeal against the Court of Appeal’s decision declaring the words “offensive” and “annoy” under Section 233 of the Communications and Multimedia Act 1998 (Act 588) unconstitutional and invalid.
A three-member bench led by Court of Appeal President Datuk Abu Bakar Jais, and comprising Federal Court judges Tan Sri Nallini Pathmanathan and Datuk Nordin Hassan, in a unanimous decision allowed two of the four questions of law proposed by the government, along with an additional question formulated by the panel itself.
“We are unanimous in our decision to allow Question 3 and Question 4 of the motion. We will also formulate another question of law, namely, what is the effect of Article 4(2) of the Federal Constitution in the circumstances of this case,” said Justice Abu Bakar.
The court allowed two questions relating to the interpretive approach of similar legislation from the United Kingdom and Europe in relation to Section 233 of the CMA and Article 10 of the Federal Constitution.
Another question concerns whether the objective of Section 233, including the words “offensive” and “annoy”, is to prevent the misuse of public electronic communication networks and to uphold basic societal standards, and whether it falls within the interests of public order and morality under Article 10(2) of the Federal Constitution.
The Federal Court will hear the substantive appeal on a date to be fixed later.
The court also allowed the government’s application to stay the Court of Appeal’s ruling pending the final disposal of the appeal before the Federal Court.
“We grant the application based on the undertaking of the applicant (government) that they will not continue with any prosecution of cases of the motion,” said Justice Abu Bakar.
The Court of Appeal, in a unanimous decision by a three-man bench on August 19, ruled that the words “offensive” and “annoy” in Section 233 were unconstitutional.
However, the panel held that the decision would have a prospective effect, so as not to revive past cases.
The ruling was made after the court allowed the appeal filed by activist Heidy Quah Gaik Li, who sought to invalidate parts of Section 233 of the Communications and Multimedia Act 1998.
The Court of Appeal’s decision will apply prospectively, meaning it will affect only ongoing or future court cases involving the crime of offensive speech intended to “annoy” under Section 233. The ruling does affect past cases that the court had already decided.
The pre-amendment Section 233(1)(a) states that it is an offence for a person to make, create or solicit, and initiate the transmission of any online comment which is “obscene, indecent, false, menacing or offensive” with “intent to annoy, abuse, threaten or harass another person”.
Under the amended CMA, which came into effect in February this year, the word “offensive” was replaced with “grossly offensive.
Earlier, Senior Federal Counsel Liew Horng Bin, representing the government, informed the court that prosecution in cases related to Section 233 of the CMA would cease until the disposal of the appeal.
“Basically, it will be status quo,” he said, referring to prosecution in related cases.
Meanwhile, lawyer Datuk Malik Imtiaz Sarwar, representing Quah, said he had no issue with the applicant’s undertaking as long as his client was not re-charged in court.
At the outset, the panel of judges initially comprised five judges, including Federal Court Judge Tan Sri Ahmad Terrirudin Mohd Salleh and Court of Appeal judge Datuk Che Mohd Ruzima Ghazali
However, Malik Imtiaz said that Justice Ahmad Terrirudin was the Attorney General during the proceedings at the Court of Appeal and was therefore directly involved in the case as the then AG.
Upon hearing the submission, the court adjourned the proceedings, and when the court reconvened, Justice Abu Bakar informed that Justice Ahmad Terrirudin had agreed to recuse himself. Due to that, the panel of five was then reduced to three judges, where Justice Che Mohd Ruzima also recused himself.
In her suit, Quah, the founder of Refuge for Refugees, is claiming the use of the words “offensive” and annoy” in Section 233 of the Act is invalid as it goes against two fundamental human rights protected by the Federal Constitution.
In September 2023, the Shah Alam High Court dismissed Quah’s lawsuit, leading her to file an appeal in the Court of Appeal.
In July 2021, Quah, 31, was charged in the Kuala Lumpur Sessions Court for allegedly making “offensive” online comments in a Facebook post and in April 2022, the Sessions Court granted her a discharge not amounting to an acquittal (DNAA) due to the charge under Section 233(1)(a) being defective. — Bernama
