PUTRAJAYA: The Federal Court granted leave to the government to appeal the Court of Appeal decision striking out parts of Section 233 of the Communications and Multimedia Act 1998.
A three-judge panel chaired by Justice Abu Bakar Jais allowed two of four constitutional questions from the government.
The appeal relates to activist Heidy Quah’s originating summons to void the words “offensive” and “annoy” as inconsistent with Article 10 of the Federal Constitution.
Justice Abu Bakar said the panel unanimously allowed Question 3 and Question 4 of the government’s motion.
Question 3 concerns the interpretive approach of similar United Kingdom and European legislation to Section 233 of the CMA and Article 10 of the Constitution.
Question 4 asks whether the object of Section 233, including “offensive” and “annoy,” is to prevent misuse of networks and protect basic standards of society.
It also asks whether this falls within public order and morality under Article 10(2) of the Constitution.
“We will also formulate another question of law,” said Justice Abu Bakar.
He said it is on the effect of Article 4(2) of the Federal Constitution in this case.
The judge said leave was granted based on the applicant’s undertaking that authorities will not proceed with related cases for now.
Other judges on the panel were Justices P. Nallini and Nordin Hassan.
Earlier, Senior Federal Counsel Liew Horng Bin said prosecutions under Section 233 will cease until the appeal is disposed of.
“Basically it will be status quo,” he said.
Quah’s lawyer Datuk Malik Imtiaz Sarwar said he had no issue with the undertaking.
He added it was on the condition that his client is not re-charged.
At the outset, the panel comprised five judges, including Justices Ahmad Terrirudin Mohd Salleh and Che Mohd Ruzima Ghazali.
Malik pointed out that Justice Ahmad Terrirudin was the Attorney General during the Court of Appeal proceedings.
He said the judge was directly involved in the case as the then-AG.
The court adjourned briefly to deliberate.
Justice Abu Bakar said Justice Ahmad Terrirudin agreed to recuse himself.
Justice Che Mohd Ruzima also stepped down, reducing the panel to three.
In August, the Court of Appeal allowed Quah’s appeal against the High Court dismissal of her originating summons.
She had challenged Section 233, which was used against her in separate criminal proceedings at the Kuala Lumpur Sessions Court.
Section 233(1)(a) makes it an offence to transmit online content that is “obscene, indecent, false, menacing or offensive” with “intent to annoy, abuse, threaten or harass.”
An amendment effective February this year replaced “offensive” with “grossly offensive.”
The amendment did not affect Quah’s legal challenge.
Quah began the challenge at the Shah Alam High Court on August 30, 2021, a month after being charged.
She was accused of sharing offensive content in a Facebook post alleging mistreatment of refugees at an Immigration detention centre.
She allegedly posted via her Facebook page “Heidy Quah” at about 5.30am on June 5, 2020.
On April 25, 2022, she received a discharge not amounting to an acquittal after the Sessions Court allowed a preliminary objection.
On September 12, 2023, the High Court dismissed her legal challenge without order as to costs.
She appealed and won at the Court of Appeal, which struck out “annoy” and “offensive” from the provision.
