PUTRAJAYA: The Federal Court will decide on Feb 6 whether the words “offensive” and “annoy” under Section 233 of the Communications and Multimedia Act are unconstitutional.
A five-man bench is set to deliver its judgment on the government’s appeal against an earlier Court of Appeal decision that declared the words unconstitutional.
A three-member bench led by Chief Justice Wan Ahmad Farid Wan Salleh fixed the date after parties involved in the appeal concluded their submissions, Bernama reported.
The other judges on the bench were Federal Court judges Tan Sri Nallini Pathmanathan, Datuk Che Mohd Ruzima Ghazali, Datuk Mohd Nazlan Mohd Ghazali and Datuk Collin Lawrence Sequerah.
Last year, the Court of Appeal made the declaration after allowing activist Heidy Quah’s appeal to overturn the High Court’s dismissal of her lawsuit in 2023.
Quah had contended that the use of those words violated two fundamental liberties protected under the Federal Constitution.
In July 2021, Quah, 31, was charged in the Kuala Lumpur Sessions Court with making “offensive” online comments in a Facebook post.
In April 2022, the Sessions Court granted her a discharge not amounting to an acquittal due to a defective charge under Section 233(1)(a).
Yesterday, senior federal counsels Shamsul Bolhassan and Liew Horng Bin submitted before the Federal Court that the appellate erred when it struck down the two words in Section 233.
Shamsul said the amendment made to Section 233 in 2025 had replaced the word “offensive” with “grossly offensive” and inserted an explanation to clarify what constituted “grossly offensive”.
“Despite the amendment, the Court of Appeal in Quah’s case confined its opinion to the constitutionality of the impugned words in the pre-amended section 233,” he said.
Liew submitted that the Court of Appeal’s decision invalidating the two words in Section 233 had far-reaching implications, including affecting accused persons who were discharged and acquitted.
He added that the ruling also created legal uncertainty, with offenders being treated differently depending on whether the offence was committed before or after the amendment.
