Section 233(1)(a) of the Communications and Multimedia Act 1998
Creates a Chilling Effect on Freedom of Speech and Expression, and Should be Repealed
The Malaysian Bar is deeply concerned over the use of Section 233(1)(a) of the Communications and Multimedia Act 1998 (“CMA”) which, among others, criminalises the use of network facilities or network services by a person to transmit any communication that is deemed to be offensive and could cause annoyance to another person.
Section 233(3) of the CMA stipulates, upon conviction, the imposition of a maximum fine of RM50,000 or a maximum one-year jail term or both, as well as a further fine of RM1,000 for every day the offence is continued after conviction.
Section 233(1)(a) has been frequently used, and recently against the following persons and entities:
(1) Radio journalist Aisyah Tajuddin and two of her colleagues were investigated on 23 March 2015 for her alleged appearance in a video posted online, entitled “Hudud Isi Periuk Nasi? (Kupas)”;
(2) The Malaysian Insider (“TMI”) managing editor Lionel Morais, Bahasa Malaysia news editor Amin Shah Iskandar, and features and analysis editor Zulkifli Sulong were arrested on 30 March 2015; and chief executive Jahabar Sadiq and group CEO of The Edge Media Group (which owns TMI) Ho Kay Tat were arrested on 31 March 2015, for allegedly publishing a news report that claimed the royal institution had opposed the amendment of the Federal Constitution to enable hudud laws to be implemented;
(3) Whistleblower website Sarawak Report was investigated, and access to it blocked, in July 2015 for allegedly publishing unverified information relating to the Prime Minister and 1MDB;
(4) Political analyst Shahbudin Husin was investigated on 29 September 2015 for allegedly posting a comment piece entitled “Kenapa lawatan rasmi Zahid ke Indonesia sama tarikh dengan majlis sanding anaknya di Jakarta?”;
(5) Former Chief Minister of Malacca Tan Sri Abdul Rahim Thamby Chik was charged on 5 October 2015 for allegedly posting an item on his Facebook account concerning the Selangor Raja Muda;
(6) Parti Sosialis Malaysia Secretary-General S Arutchelvan was charged on 23 November 2015 for allegedly criticising the Court of Appeal’s decision against then-Opposition leader Anwar Ibrahim, in a Facebook post;
(7) Activist Khalid Mohd Ismath was charged on 13 November 2015 for making allegedly seditious online posts regarding the Johor royalty;
(8) Former Minister in the Prime Minister’s Department Dato’ Zaid Ibrahim was charged on 3 December 2015 for the alleged offence of publishing the transcript of a speech that he delivered at the Royal Selangor Club on his blog. The blog post, entitled “Rally Behind Tun Dr Mahathir Mohammad”, called for the removal of the Prime Minister; and
(9) “Letak Jawatan” Facebook page administrator Joe Haidy Sulaiman was investigated on 4 December 2015 for allegedly defaming the Prime Minister in a Facebook post.
Section 233(1)(a) of the CMA is a serious encroachment on the freedom of speech and expression guaranteed by Article 10(1)(a) of our Federal Constitution. While Parliament may impose restrictions on this fundamental constitutional liberty, such restrictions must be reasonable and proportionate. The extremely wide and draconian effect of Section 233(1)(a) renders it an impermissible restriction, inasmuch as it unduly negates the exercise of the right to speech and expression.
Section 233(1)(a) of the CMA is also repugnant to the rule of law, as it is broad in scope, vague and ambiguous, with entirely subjective terms such as “offensive” and “annoy”. It can easily be misused to stifle speech and expression, to shut out contrary views, to quash dissent, to deny democratic space, and to suppress Malaysians. It is this imprecision that gives rise to the perception that the provision is yet another dressed-up political weapon in the armoury of the Government.
In any event, there can certainly be no basis for Section 233(1)(a) to be invoked against any person who calls for the Prime Minister to step down. It is absurd to criminalise the exercise of such a legitimate democratic right. Peaceful change to the executive leadership of a nation is part and parcel of democracy. The Prime Minister must accept that the price for being in office includes constant scrutiny and criticism, and this could include calls for him to resign.
The continuous use of Section 233(1)(a) of the CMA to clamp down on views, discourse and expression, and to restrict democratic space, creates a climate of fear that threatens to silence Malaysians. Section 233 (1)(a) suffocates not only freedom of expression and freedom of speech in Malaysia, but more critically, freedom of thought. In this age of connectivity, where the exchange of ideas and information is rife, no nation that aspires to be recognised and accepted as a world leader in ideas and intellectualism can afford to raise an unquestioning and non-discerning population.
The Malaysian Bar therefore calls upon the Government to cease its use of Section 233(1)(a) of the CMA, and to repeal Section 233 of the CMA. The chilling effect on the freedom of speech and expression that is created by its use must be eliminated.
21 December 2015