Chief Justice Wan Ahmad Farid Wan Salleh, leading a five-member panel of judges, fixed the date after hearing three hours of submissions from the Attorney-General’s Chambers and lawyers for activist Heidi Quah, the respondent in the appeal.
Also on the bench hearing the government’s appeal were Justices Nallini Pathmanathan, Che Ruzima Ghazali, Nazlan Ghazali and Collin Lawrence Sequerah.
The appeal revolved around three legal questions – including whether the Court of Appeal’s ruling was consistent with Article 4(2) of the Federal Constitution.
Section 233 of the CMA had made it an offence for any person to make, create, solicit or initiate the online transmission of any “obscene, indecent, false, menacing or offensive” comment with the intent to “annoy, abuse, threaten or harass another person”.
On Aug 27 last year, the Court of Appeal unanimously struck down the section, ruling that it violated Articles 8 and 10(2)(a) of the constitution.
Article 8 provides for equality before the law, while Article 10(2)(a) permits certain limitations to free speech.
Delivering the appeals court’s decision, Justice Lee Swee Seng, now a Federal Court judge, said the act of offending and annoying a third party could not be construed as going against public order.
Today, senior federal counsel Shamsul Bolhassan contended that the Court of Appeal’s decision violated Article 4(2)(b) of the constitution and was made in excess of jurisdiction.
Article 4(2)(b) prohibits any challenge to speech restrictions made in the interests of public order and public morality pursuant to Article 10(2).
“The Court of Appeal has entertained an appeal which it had no jurisdiction to decide on,” said Shamsul, who was assisted by senior federal counsel Liew Horn Bin.
Shamsul said the Court of Appeal should have narrowed or limited the interpretation of the words “offensive” and “annoy” in Section 233 of the CMA in line with Article 10, rather than strike down the provision in its entirety.
Counsel Benjamin Dawson, representing the Malaysian Communications and Multimedia Commission, said the court was entitled to decide if the CMA was made in the interest of public morality and public order.
“However, the court cannot decide whether any restriction is reasonable or not. It cannot even apply the proportionality test,” he said.
Malik Imtiaz Sarwar, representing Quah, said the Federal Court should maintain the Court of Appeal’s findings as they are well-founded.
He said any offensive posting which has the intention to annoy is a violation of free speech under the constitution.
Lawyer K Shanmuga, representing the Malaysian Bar, also called for the Court of Appeal’s ruling to be maintained.
In 2024, the government passed an amendment to Section 233 of the CMA, raising the threshold for offences from “offensive” to “grossly offensive”. The amendment came into effect in February last year.
In July 2021, Quah, founder of Refuge for Refugees, was charged under Section 233, prior to its amendment, with posting offensive online comments on Facebook after she highlighted the alleged mistreatment of refugees at immigration detention centres.
In April 2022, the High Court granted her a discharge not amounting to an acquittal (DNAA).
Quah then sought a declaration that the words “offensive” and “annoy” in the provision were invalid and contravened two fundamental rights safeguarded by the constitution.
The Court of Appeal ruled in her favour and struck down Section 233, giving rise to the present appeal.