Bersih activist files to strike down law criminalising offensive online posts

A former Bersih deputy chairperson has mounted a legal challenge over the constitutionality of a provision that criminalises offensive online posts that cause annoyance.

The High Court in Taiping yesterday set Oct 17 to decide on Sarajun Hoda Abdul Hassan’s application to refer to the apex court over the constitutionality of Section 233 of the Communications and Multimedia Act 1998.

The Bersih activist is seeking to strike down Sections 233(1)(a) and 233(3) of the Act for allegedly contravening several fundamental rights laid down under several provisions of the Federal Constitution.

These are the right to life and liberty under Article 5, the right to equality before the law under Article 8 and the right to freedom of speech and expression under Article 10 of the Constitution.

The constitutional referral bid to the Federal Court was made in the context of the 66-year-old’s application before the High Court against an earlier decision of the Taiping Sessions Court.

The Sessions Court had dismissed his application to have the High Court look into the constitutionality of the impugned provisions. 

On Aug 3 last year before the Taiping Sessions Court, Sarajun Hoda claimed trial for a charge under Section 233(1)(a) for allegedly posting insulting comments on social media. This criminal case is still pending before the lower court.

When contacted by Malaysiakini yesterday, Sarajun Hoda’s counsel Abraham Au confirmed that High Court judicial commissioner Noor Ruwena Md Nurdin set the Oct 17 decision date after having heard submissions from legal teams for both the applicant and the prosecution.

Lead counsel Gurdial Singh Nijar had presented oral submissions for the applicant, while deputy public prosecutor Sariza Ismail submitted for the prosecution.

“The High Court heard the case today. Yang Arif (Her Honourable) Noor Ruwena then adjourned for the decision to be on Oct 17, 2022,” Au said.

According to the charge sheet for the criminal case, Sarajun Hoda was accused of consciously making and initiating the transmission of offensive communications on Islam on his Facebook page between 9am and 12.52pm on April 26, which was read after about 9am at No 15, Jalan Wawasan 8, Taman Wawasan Jaya in Parit Buntar on April 27, 2021.

The charge provides for a fine not exceeding RM50,000 or jail time for up to one year, or both, if found guilty.

The accused is currently out on RM8,000 bail with one surety and his passport is currently being held by the court.

Also, as part of bail terms, he is required to report to the nearest police station every month.

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