Appeal on CMA: Terrirudin recuses self from apex court panel

Federal Court judge Ahmad Terrirudin Salleh has recused himself from the apex court panel presiding over the government’s appeal on Section 233(1)(a) of the Communications and Multimedia Act 1998 (CMA).

This came after lawyer Malik Imtiaz Sarwar voiced his concerns to the panel chaired by Court of Appeal president Abu Bakar Jais, as Terrirudin (above), who was the former attorney-general, had previously argued the case in the lower court.

Initially, the panel comprised five judges, including Abu Bakar, Terrirudin, Federal Court judges Nallini Pathmanathan and Nordin Hassan, as well as Court of Appeal judge Che Ruzima Ghazali.

However, after about 40 minutes of deliberation, Abu Bakar informed the parties that with Terrirudin recusing himself and Che Ruzima also doing the same, the panel had been reduced to three.

A Federal Court panel is usually formed with an odd number of judges to prevent tie votes and ensure a majority decision.

The panel then granted leave for the government to appeal against the Court of Appeal ruling made on Aug 19, which struck down the terms “offensive” and “annoy” in Section 233(1)(a) of the Act.

Legal questions for court’s consideration

Abu Bakar, in granting leave to the government to appeal, said the panel will hear arguments on three legal questions - two from the government’s application and one formulated by the court.

The panel also granted the leave following the government's undertaking that it will not continue with any prosecution related to the section pending the Federal Court ruling.

The panel will consider legal questions involving the interpretative approach of Section 233 and Article 10 of the Federal Constitution, with similar legislation from the United Kingdom and Europe.

Apart from this, they will also consider another question posed by the government which is whether the object of Section 233(1)(a) of CMA, including the words “offensive” and “annoy” would prevent the misuse of public electronic communication network and to protect the basic standards of society, in the interest of the public order and morality under Article 10(2) of the Constitution.

The panel’s formulated question would touch on the effect of Article 4(2) of the Constitution in the circumstances of this case.

Activist’s lawsuit

Senior federal counsel Liew Horng Bin appeared for the government, while Malik appeared for activist Heidy Quah.

The government is appealing against the Court of Appeal decision, which struck down the two terms from Section 233(1)(a) after finding the terms would amount to a prohibition of free speech.

Quah had sued to challenge the validity of the two words in Section 233 in September 2021. The suit was dismissed by the High Court in September 2023, prompting her appeal.

The civil action was initiated after Quah was charged in July 2021 under the section over a Facebook post highlighting the mistreatment of refugees at immigration detention centres.

In April 2022, the Sessions Court granted the human rights activist a discharge not amounting to an acquittal (DNAA) due to the charge under Section 233(1)(a) being defective.

The government passed an amendment to the CMA last year, which saw an increase in penalties and expanded the MCMC’s power of enforcement.

The amendment came into effect in February this year.

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