A three-member Federal Court bench led by Justice Abu Bakar Jais granted the government leave to appeal the Court of Appeal’s decision which allowed activist Heidy Quah’s challenge to invalidate the provision.
Leave is granted if an applicant meets the threshold under Section 96 of the Courts of Judicature Act 1964 by raising novel constitutional or legal questions of public importance for the first time.
Abu Bakar, the Court of Appeal president, said the appeal would be heard based on three legal questions, including one formulated by the bench.
The bench’s question relates to the effect of Article 4(2) of the Federal Constitution on the ruling handed down by the appeals court in Quah’s case.
Two more questions framed by the government were also accepted for ventilation at the appeal.
The bench, which included Justices Nallini Pathmanathan and Nordin Hassan, also allowed the government’s application for a stay of the appeals court verdict pending the Federal Court’s disposal of the appeal.
This means that all cases pending before the lower courts must be put on hold pending the Federal Court ruling.
The provision had made it an offence for a person to make, create, solicit or initiate the online transmission of any “obscene, indecent, false, menacing or offensive” comment with the intent to “annoy, abuse, threaten or harass another person”.
Senior federal counsel Liew Horn Bin appeared for the government while lawyer Malik Imtiaz Sarwar represented Quah.
On Aug 27, the Court of Appeal unanimously struck down Section 233 of the CMA, ruling that it violated Article 10(2)(a) of the constitution, read together with Article 8.
Delivering the decision, Justice Lee Swee Seng said a charge of offending and annoying a third party could not be construed as going against public order.
The government passed an amendment to the CMA last year, raising the threshold for offences from “offensive” to “grossly offensive”. The amendment came into effect in February.
In July 2021, Quah, the founder of Refuge for Refugees, was charged with posting offensive online comments on Facebook highlighting the alleged mistreatment of refugees at immigration detention centres.
She filed a constitutional challenge after she was granted a discharge not amounting to an acquittal in April 2022.
She had sought a declaration that the words “offensive” and “annoy” in the provision were invalid and contravened two fundamental human rights safeguarded by the constitution.