Court to rule Aug 19 on activist's challenge to CMA provision
PUTRAJAYA: The Court of Appeal has fixed August 19 to deliver its decision in an appeal brought by an activist over the dismissal of her lawsuit that had challenged the validity of parts of a provision in the Communications and Multimedia Act 1998 that criminalises offensive online comments.
A three-man bench consisting of Federal Court judge Datuk Lee Swee Seng and Court of Appeal judges Datuk Hashim Hamzah and Datuk Azman Abdullah set the decision date after parties completed their submissions earlier today.
Heidy Quah Gaik Li, the founder of Refuge for Refugees is claiming the use of the words 'offensive' and annoy' in Section 233 of the Act are invalid as it goes against two fundamental human rights protected by the Federal Constitution.
Section 233(1)(a) states that it is an offence for a person to make, create or solicit, and initiate the transmission of any online comment which is 'obscene, indecent, false, menacing or offensive' with 'intent to annoy, abuse, threaten or harass another person.
In Sept 2023, the Shah Alam High Court dismissed Quah's lawsuit, leading her to file an appeal in the Court of Appeal.
The hearing today was a continuation of proceedings that had begun earlier. Justice Lee was serving as a Court of Appeal judge before being elevated to the Federal Court in May this year.
During today's hearing, senior federal counsel Liew Horng Bin representing the Malaysian government submitted that speech involving expletives, profanity, crude references, hate speech or incitement to violence are not expressions protected under Article 10 (1) (a) of the Federal Constitution.
He argued that the right to free speech should be used to disseminate truth, respect for human dignity and perform essential informing function.
On the other hand, lawyer Datuk Malik Imtiaz Sarwar, representing Quah argued the words 'offensive' or annoy contained in Section 233 is inconsistent with Article 10 and Article 8 of the Federal Constitution, namely the right to equality and freedom of speech.
He argued that the two words in Section 233 are not a 'permissible restriction' under public order as prescribed in 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. In April the following year, the Sessions Court granted her a discharge not amounting to an acquittal (DNAA) due to the charge under section 233(1)(a) being defective.
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