Kuala lumpur: The Federal Court has granted the government leave to appeal against the Court of Appeal's decision that declared the words 'offensive' and 'annoy' under Section 233 of the Communications and Multimedia Act 1998 unconstitutional and invalid.

According to BERNAMA News Agency, a three-member bench led by Court of Appeal President Datuk Abu Bakar Jais, and comprising Federal Court judges Tan Sri Nallini Pathmanathan and Datuk Nordin Hassan, unanimously allowed two of the four questions of law proposed by the government, along with an additional question formulated by the panel itself. Justice Abu Bakar stated, "We are unanimous in our decision to allow Question 3 and Question 4 of the motion. We will also formulate another question of law, namely, what is the effect of Article 4(2) of the Federal Constitution in the circumstances of this case."

The court permitted two questions concerning the interpretive approach of similar legislation from the United Kingdom and Europe in relation to Section 233 of the CMA and Article 10 of the Federal Constitution. Another question considered whether the objective of Section 233, including the terms 'offensive' and 'annoy', is to prevent misuse of public electronic communication networks and uphold societal standards, and whether it aligns with public order and morality as defined under Article 10(2) of the Federal Constitution.

The Federal Court will hear the substantive appeal on a date to be determined later. Additionally, the court agreed to the government's request to stay the Court of Appeal's ruling pending the final outcome of the appeal before the Federal Court. Justice Abu Bakar noted, "We grant the application based on the undertaking of the applicant (government) that they will not continue with any prosecution of cases of the motion."

The Court of Appeal had previously, in a unanimous decision by a three-man bench on August 19, ruled that the words "offensive" and "annoy" in Section 233 were unconstitutional. However, the panel stated that this decision would have a prospective effect, ensuring it does not revive past cases. This decision followed an appeal by activist Heidy Quah Gaik Li, who sought to invalidate parts of Section 233 of the Communications and Multimedia Act 1998.

The Court of Appeal's ruling applies prospectively, affecting only ongoing or future court cases involving the crime of offensive speech intended to 'annoy' under Section 233. It does not influence past cases that the court had already decided. The pre-amendment Section 233(1)(a) outlined that it is an offence to make, create, or solicit, and initiate the transmission of any online comment deemed "obscene, indecent, false, menacing or offensive" with "intent to annoy, abuse, threaten or harass another person."

Under the amended CMA, effective from February this year, the term 'offensive' was replaced with 'grossly offensive.' Senior Federal Counsel Liew Horng Bin, representing the government, informed the court that prosecution in cases related to Section 233 of the CMA would cease until the appeal is resolved, indicating that it would be "status quo." Meanwhile, lawyer Datuk Malik Imtiaz Sarwar, representing Quah, expressed no issue with the government's undertaking as long as his client was not re-charged.

Initially, the panel of judges included five members, but following submissions, Justice Ahmad Terrirudin Mohd Salleh and Justice Che Mohd Ruzima Ghazali recused themselves, reducing the panel to three judges. Quah, the founder of Refuge for Refugees, claims that the use of the words 'offensive' and 'annoy' in Section 233 is invalid as it contravenes fundamental human rights protected by the Federal Constitution. After the Shah Alam High Court dismissed Quah's lawsuit in September 2023, she filed an appeal in the Court of Appeal. Previously, in July 2021, she was charged in the Kuala Lumpur Sessions Court for allegedly making 'offensive' online comments, with the Sessions Court later granting her a discharge not amounting to an acquittal due to a defective charge under Section 233(1)(a).