The Centre for Independent Journalism (CIJ) is alarmed with the recent Federal Court ruling in Government of Malaysia v Heidy Quahm which reinstates “offensive” and “annoy” in Section 233(1)(a) of the Communication and Multimedia Act 1998 (CMA), stating that these words are not deemed unconstitutional.
This marks a setback for freedom of expression and democratic accountability in Malaysia.
While the Federal Court upheld the appeals court’s decision that Heidy Quah should not have been subjected to prosecution under Section 233(1)(a) for her Facebook post in relation to the spread of Covid at immigration detention centres, the core of this decision affirms the continued criminalisation of online speech deemed ‘offensive’ and with the intent to ‘annoy’.
This significantly weakens constitutional safeguards under Article 10 of the Federal Constitution.
We note the court’s argument that freedom of expression is not absolute, and is subject to restrictions, under Article 10(2) of the Federal Constitution.
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Nonetheless, the restrictions must meet the threshold of international human rights standards – legality, necessity and proportionality, and should not be left vulnerable to its interpretation due to the vague and broad application. There must be a direct and demonstrable risk of serious harm.
In practice, the lack of clear threshold and subjectiveness of this provision has allowed for political weaponisation of the CMA for censorship and curtailment of criticism against the government as well as on the basis of race, religion and royalty.
This is evident in not just the case of Heidy Quah, but also the recent investigations against Rex Tan, Fahmi Reza and many other journalists and political critics.
Though Judge Nallini Pathmanathan – who presided over the case – addressed that this can be rectified “by ‘reading down’ the section to narrow the types of cases falling within its purview, as well as to set the requisite thresholds to warrant the bringing of a prosecution”, by allowing this law to persist in its ambiguity and subjectiveness, it allows the authorities to consistently undermine international standards, without adequate established thresholds.
The ruling legitimises the lowering of the threshold for criminal liability, given the highly punitive nature of the fines and imprisonment under this section.
The risks of criminalising legitimate speech related to public interest, especially criticism of state institutions and government policiesm and precluding any healthy debate or discourse on matters deemed ‘sensitive’, in particular on race or religion, remain high and reinforces the chilling effect of investigation or prosecution.
Any legal provision that aims to protect freedom of expression, especially within the digital sphere, must refrain from broad, vague, subjective and highly punitive provisionsm such as Section 233 of the CMA.
It is often argued that broad and vague legal provisions provide flexibility and adaptability in specific contexts and unique circumstances, including in the evolving digital environment.
Nonetheless, criminal provisions in Section 233 of the amended CMA, with a fine up to RM500,000 and imprisonment for up to two years, will require narrow and precise non-subjective clauses to ensure legal certainty and fair notice, as well as to protect against arbitrary enforcement.
It should not normalise state regulation of ‘acceptable’ speech and open doors for selective prosecution, particularly against non-conforming voices and government critics.
A democratic society like Malaysia must promote robust, uncomfortable and critical speech, including on race, religion and royalty.
Criminal provisions should be the last resort for the most extreme cases of incitement to imminent violence and not the default tool for managing discomfort, annoyance or dissent in online discourse.
This decision underscores the urgent need to repeal Section 233 of the CMA – failing which, it must be amended to provide clearer and narrower definitions that target demonstrable harm rather than subjective offences.
It also calls for stronger judicial activism and scrutiny to ensure that freedom of expression is meaningfully protected in line with international human rights standards.
CIJ sees this as the democratic way forward in seeing a nation that respects freedom of expression while still protecting the human rights of all its people. – CIJ
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