Malaysia’s apex court will decide on Feb 6 whether the words ‘offensive’ and ‘annoy’ in the Communications Act are unconstitutional.
PUTRAJAYA: The Federal Court will deliver its decision on the government’s appeal regarding the constitutionality of Section 233 of the Communications and Multimedia Act on 6 February.
A five-member bench led by Chief Justice Datuk Seri Wan Ahmad Farid Wan Salleh fixed the date after hearing submissions from all parties involved.
The appeal challenges a Court of Appeal ruling that declared the words “offensive” and “annoy” in the Act unconstitutional and invalid.
Last year, the appellate court allowed activist Heidy Quah’s appeal and struck down the two words from the legislation.
Quah had contended that the use of those words violated fundamental liberties protected under the Federal Constitution.
Senior Federal Counsel Shamsul Bolhassan argued the Court of Appeal erred in striking down the two words in Section 233.
He noted that an amendment last year replaced “offensive” with “grossly offensive” and inserted an explanatory clause.
Shamsul submitted that the appellate court’s opinion was confined to the constitutionality of the words in the pre-amended section.
His colleague, Liew Horng Bin, said the ruling had far-reaching implications and created legal uncertainty for offenders.
Lawyer Benjamin John Dawson, for the Malaysian Communications and Multimedia Commission, argued the words should not be struck down.
He said the Court of Appeal failed to consider that Section 233’s purpose is to prohibit misuse of network services violating societal standards.
Quah’s lawyer, Datuk Malik Imtiaz Sarwar, argued the appellate court correctly declared the two words unconstitutional.
He said the court rightly decided the words were disproportionate to protecting public order or morality under the Constitution.
Malik Imtiaz added that the words criminalise a broad range of everyday speech with no available defence.
The Malaysian Bar and three human rights organisations appeared as friends of the court in the proceedings.
In 2021, Quah was charged in the Sessions Court for allegedly making “offensive” online comments in a Facebook post.
The Sessions Court later granted her a discharge not amounting to an acquittal after finding the charge defective.
