PUTRAJAYA (Nov 13): The Federal Court has granted the government permission to challenge the appellate court's decision that online remarks defined as “offensive” with intention to “annoy” are not a criminal offence under the Communications and Multimedia Act 1998 (CMA).
A three-member apex court panel led by Court of Appeal (COA) President Datuk Abu Bakar Jais on Thursday allowed two of the four questions of law proposed by the government, and additional questions formulated by the panel itself on the appeal.
The court also granted a stay of the COA's decision in relation to the challenged provision, following the government's undertaking that the cases in the courts below will be "status quo" pending the final outcome of this case.
Federal Court judges Tan Seri Nallini Pathmanathan and Datuk Nordin Hassan also sat on the panel.
Thursday's leave (permission) application was in relation to activist Heidy Quah's case, where the COA in August struck down the provision of the CMA which criminalises online posts that “annoy” and were “offensive”, on the grounds that it violated freedom of speech guaranteed by the Federal Constitution.
The COA said that Section 233 of the CMA doesn’t clearly define what counts as offensive remarks, or an intent to annoy.
An offence under Section 233 used to carry a fine of up to RM50,000, a maximum one-year jail term, or both, upon conviction.
However, it should be noted that the government has passed amendments to the law, which include changes to the specific section at the heart of the court case. The amendments came into effect in February this year.
Among the changes include the addition of the word "grossly" offensive, six guidelines on definitions, and an increased penalty.
If found guilty under Section 233, a person now faces RM500,000 in fines, or imprisonment for a maximum of two years, or both, and is further liable to additional fines of RM5,000 for every day during which the offence is continued after conviction.
Three questions of law to be determined later
Following Thursday's decision, the country's top court will now hear the appeal proper on a later date.
Among the questions that the Federal Court will now adjudicate upon are:
- If similar laws from the UK and Europe have any relevance in interpreting Section 233 of the CMA and Article 10 of the Constitution. Article 10 concerns freedom of speech, assembly and association;
- Whether the object of Section 233, including the words 'offensive' and 'annoy', is to prevent the misuse of public electronic communication networks and to protect the basic standards of society, and whether it is in the interest of public order and morality under Article 10(2) of the Constitution;
- What is the effect of Article 4(2) of the Constitution in the circumstances of this case.
Terrirudin recuses himself
Senior federal counsel Liew Horng Bin led the team of government lawyers, while senior lawyer Malik Imtiaz Sarwar led the team of lawyers who acted for Quah.
At the onset of Thursday's proceedings, a five-member panel sat to hear the application. The two additional judges were Federal Court judges Tan Sri Ahmad Terrirudin Mohd Salleh and COA judge Datuk Che Mohd Ruzima Ghazali.
However, Malik took issue against Terriruddin, who is a former attorney general, sitting on the bench, on account that Terrirudin may have had a say in the direction of Quah's case while he was the AG. Terrirudin therefore recused himself following a brief stand down.
The ruling was in relation to Quah’s challenge against her 2021 charge, under the original Section of the CMA.
Quah was charged in 2021 under the same law for an “offensive” Facebook post about conditions in an immigration detention centre during the Covid-19 pandemic.
Although the Sessions Court later granted her a discharge not amounting to an acquittal, Quah pressed ahead with a constitutional challenge of the law.
The High Court dismissed her application in 2023, but the COA reversed that finding in August this year.