Justice Mohd Sofian Abd Razak said Section 233 of the CMA was legal and did not violate Article 10 of the Federal Constitution.
“There is no merit in the application and I am sending the matter to the Sessions Court for trial,” he said, referring to the charge against Sivarasa over the Facebook posting of a doctored Time magazine cover featuring Prime Minister Najib Razak.
Sofian said Section 233 was similar to Section 127 of United Kingdom’s Malicious Communications Act 1988.
“An offence is committed when a grossly indecent message is sent,” he said in reference to a case decided by the highest court in the UK.
He said the judges in that case had also considered the effect of sending offensive messages through the internet, especially in a multi-racial society.
Sofian said like the provision in the UK law, the Malaysian constitution also allowed parliament to impose restrictions of free speech on grounds of morality, public order and national security.
Lawyer Gurdial Singh Nijar, who represented Sivarasa, said he had instructions to appeal against today’s ruling.
Government lawyer Mohd Sophian Zakaria said the judge relied on the UK provision and a case law from that jurisdiction because there was no legal precedent from the Federal Court or the Court of Appeal.
Sivarasa’s complaint is that Section 233 of the CMA is in violation of Article 10 which guarantees freedom of speech and expression.
This provision criminalises using the internet for communications that are “obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person”.
Sivarasa was charged in April 2016 with two counts of posting a doctored Time magazine cover on his Facebook account featuring Prime Minister Najib Razak along with the words “No 2 on the most corrupt list”.
However, he took it down the same day in March after learning that it was a fake.
The said offence is punishable under Section 233 (1) (a) of the CMA with a fine not exceeding RM50,000 or a jail term of up to a year or both.