By Lim Wei Jiet
Today, the Court of Appeal struck down parts of Section 233 of the Communications and Multimedia Act 1998 (CMA) that had criminalised “offensive” online statements made with the intention to “annoy”.
The panel comprised judges Lee Swee Seng, Hashim Hamzah and Azman Abdullah.
In summary, the court found that the provision:
- does not fall under any of the permissible restrictions on free speech under Article 10(2)(a) of the Federal Constitution, including ‘public order’
- has no rational nexus to regulating civility of discourse, as it wrongly assumes society has a uniform standard on what is deemed ‘offensive’
- is a disproportionate restriction to free speech – it is akin to using “a sledgehammer to kill a fly”
There are other gems in the grounds of judgment. These include “one man’s vulgarity is another man’s lyrics” and “the fact that some truths are unpalatable does not justify criminalising the messenger”. Lawyers can ordinarily expect such turns of phrase from Justice Lee Swee Seng.
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But we just have to wait for the full published grounds to appreciate in full this remarkable tour de force of a judgment.
Full credit to Malik Imtiaz Sarwar, Surendra Ananth Anandaraju, New Sin Yew and Nur Izni Syazwani who represented the appellant, Heidy Quah. Hui Yee held a watching brief for the Malaysian Bar.
Nevyn Vinosh and I acted as amicus for the Clooney Foundation for Justice and Suara Rakyat Malaysia (Suaram). It was a real pleasure working with brilliant lawyers from the UK, US and across the Commonwealth. They spent many hours providing unparalleled input into the submissions.
More than anything, this decision is a vindication of civil society’s consistent position over the decades – that Section 233 of the CMA is extremely arbitrary and thus regularly abused to silence any form of political dissent.
In fact, the extent of how absurdly it has been abused can be seen in Heidy’s case. At the height of Covid, she voiced genuine concerns on Facebook about how migrants were treated by immigration officers.
Someone high up was obviously unhappy, lodged a police report.
Heidy was then swiftly charged under Section 233. This carries prison time if convicted.
We hope that such draconian acts by the state do not ever rear their ugly heads again.
We recognise that the government has since amended Section 233 of the CMA in late 2024. It replaced the word “offensive” with “grossly offensive”.
One wonders if there is any practical difference. For instance, is the four-letter word “offensive” or “grossly offensive”? Who’s to say?
This is nonetheless an important judgment that signals the judiciary will step in to strike down unfair legislation and uphold free speech befitting an increasingly mature democracy like Malaysia.
Lim Wei Jiet is an experienced constitutional lawyer based in Kuala Lumpur.
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