APEX COURT TO DECIDE GOVT’S APPEAL ON UNCONSTITUTIONALITY OF SECTION 233 RULING ON FEB 6

PUTRAJAYA, Jan 13 (Bernama) -- The Federal Court five-man bench has set Feb 6 to deliver its decision on an appeal by the government against the decision of the Court of Appeal 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 Chief Justice Datuk Seri Wan Ahmad Farid Wan Salleh fixed the date after parties involved in the appeal concluded their submissions.

The other judges on the bench were Federal Court judges Tan Sri Nallini Pathmanathan, Datuk Che Mohd Ruzima Ghazali, Datuk Mohd Nazlan Mohd Ghazali and Datuk Collin Lawrence Sequerah.

Last year, the Court of Appeal declared the words “offensive and “annoy” in Section 233 of Act 588 as unconstitutional and struck them down after allowing activist Heidy Quah’s appeal to overturn the High Court’s dismissal of her lawsuit in 2023.

She had contended that the use of those words violated two fundamental liberties protected under the Federal Constitution.

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.

Before the Federal Court today, Senior Federal Counsels Shamsul Bolhassan and Liew Horng Bin submitted that the Court of Appeal had erred in striking down the two words in Section 233. 

Shamsul submitted that the amendment made to Section 233 last year had replaced the word “offensive” with “grossly offensive” and inserted an explanation to clarify what constituted “grossly offensive”.

“Despite the amendment, the Court of Appeal in Quah’s case confined its opinion to the constitutionality of the impugned words in the pre-amended section 233,” he said.

Liew submitted that the Court of Appeal’s decision invalidating the two words in Section 233 had far-reaching implications, including affecting accused persons who were discharged and acquitted.

He added that the ruling also created legal uncertainty, with offenders being treated differently depending on whether the offence was committed before or after the amendment.

Meanwhile, lawyer Benjamin John Dawson, appearing for the Malaysian Communications and Multimedia Commission (MCMC), which was allowed to intervene in the appeal, submitted that the two words should not be struck down.

He said the Court of Appeal had failed to consider that the purpose of Section 233 is to prohibit misuse of network services that violate the basic standard of society.

Quah’s lawyer, Datuk Malik Imtiaz Sarwar, argued that the Court of Appeal had correctly declared the two words in Section 233 unconstitutional.

He said the appellate court had rightly decided that the words in Section 233 were disproportionate to the protection of public order or morality under Article 10 (2) (a) of the Federal Constitution. 

Malik Imtiaz said that the two words criminalise a broad range of everyday speech with no available defence or exception to an offence under Section 233.

Lawyers K. Shanmuga appeared for the Malaysian Bar, while lawyer Lim Wei Jiet appeared for Suara Rakyat Malaysia, Clooney Foundation for Justice and International Bar Association’s Human Rights Institute (Ibahri). The four organisations appeared as amici curiae (friends of the court).

-- BERNAMA