The government has gone to the Federal Court to challenge a ruling that deemed the words “offensive” and “annoy” in the previous reiteration of Section 233 of the Communications and Multimedia Act 1998 (CMA) as unconstitutional.
The Attorney-General’s Chambers filed an application for leave last week to appeal the Court of Appeal’s Aug 19 verdict which had allowed an appeal by activist Heidy Quah to nullify the provision.
In the cause papers filed by the AGC, it framed three legal questions in its bid for leave.
It also seeks a stay of the Court of Appeal’s verdict until the Federal Court disposes of the appeal, if leave is granted.
A case management through e-review is scheduled for Oct 6 to possibly fix the hearing date.
FMT understands that the government wants the Court of Appeal’s decision to be stayed as there were “a sizeable number of cases” of those charged under the former Section 233(1)(a) of the CMA, where the accused had been either told to enter their defence or the trial judge was about to deliver a ruling at the close of the defence case.
The provision had made it an offence for a person to make, create, solicit or initiate the transmission of any online comment which was “obscene, indecent, false, menacing or offensive” with the “intent to annoy, abuse, threaten or harass another person”.
On Aug 27, the Court of Appeal unanimously struck down Section 233 of the CMA, which criminalises the online transmission of offensive comments.
Justice Lee Swee Seng said the words violated Article 10(2)(a) of the Federal Constitution, read together with Article 8.
He also said a charge of offending and annoying a third party could not be construed as going against public order.
The government passed an amendment to the CMA last year, adding the words “grossly offensive” to constitute an offence. The amendment came into effect in February.
In July 2021, Quah, the founder of Refuge for Refugees, was charged with posting offensive online comments on Facebook highlighting the alleged mistreatment of refugees at immigration detention centres.
She filed a constitutional challenge after she was granted a discharge not amounting to an acquittal in April 2022.
She had sought a declaration that the words “offensive” and “annoy” in the provision were invalid and contravened two fundamental human rights safeguarded by the constitution.
