Is S.233 Communications and Multimedia Act (CMA) 1998 constitutional?

In April 2016, Subang MP Sivarasa was charged under section 233 of the Communications and Multimedia Act (CMA) 1998 for initiating and sharing electronic communication which is offensive to Prime Minister Dato Seri Najib Tun Razak. He has allegedly posted a fake Time magazine cover featuring Prime Minister Najib along with the words “No.2 on the most corrupt list”.

On 24 January 2018, the High Court dismissed his application for the Federal Court to deliberate whether s.233 CMA is in breach of freedom of speech and expression. The High Court ruled that S.233(1) CMA 1998 was lawful and did not contravene Article 8 and 10 of the Federal Constitution. Specifically, Justice Mohd Sofian Abdul said S.233 CMA is similar to the UK’s Malicious Communications Act 1988. MP Sivarasa’s case was referred back to the Sessions Court for trial.

Discussion:

Let us compare the UK law and Malaysian law in this respect:

• Malicious Communications Act (CMA) 1988 c. 27 (UK law)

Section 1 – Offence of sending letters etc. with intent to cause distress or anxiety.

• Any person who sends to another person a letter, electronic communication or article which conveys a message which is indecent or grossly offensive, or a threat; or false information (or known to be false by the sender) is guilty of an offence if his purpose is to cause distress or anxiety to the recipient.

• A person found guilty can be sentenced to up to six months and/or be fined up to £5,000.

• Section 233(1) CMA 1998 (Malaysian Law)

Section 233 – Improper use of network facilities or network service, etc.

• A person who by means of any network facilities or network service knowingly    

(i) makes, creates or solicits; and

(ii) initiates the transmission of, any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person… commits an offence.

• A person found guilty is punishable with a fine not exceeding RM50,000 and/or imprisonment up to a year.

In the UK, the CMA was sparingly used as the Crown Prosecution Service, only when there is a sustained campaign of harassment or discrimination of an individual, or where court orders are flouted, or where grossly offensive or threatening remarks are made and maintained. In the UK, the threshold for criminal prosecution is set to be very high because the fundamental right to free speech is highly respected. This is in light of the European Court of Human Rights decision (Handyside v UK) which confirmed that the right to freedom of expression includes “the right to say things or express opinions that offend, shock or disturb the state or any sector of the population.” For example, throughout 2017, there was only one case in the UK where MCA 1988 was used. It involved a prosecution of a man who had used a false Facebook profile to send unsolicited messages to women and young girls requesting intimate photographs and threatening them when they refused.

On the other hand, in Malaysia, the MCA 1998 has been largely used against the general public. With more than 10 people being arrested and investigated each year. SUARAM Human Rights Report Overview 2016 provides a good list how the CMA was used to arrest and investigate individuals, particularly those who had made negative comments on members of royal family or the Prime Minister.

For example, an old man was arrested for uploading a photo on WhatsApp that insulted the Prime Minister. R Sri Sanjeevan was charged for allegedly insulting the Inspector-General of Police. A 19-year-old teenager was arrested and sentenced for insulting a member of royal family. Following the death of PAS leader Haron Din in 2016, journalist Sidek Kamiso tweeted that “Someone who made his career selling air jampi for any illnesses succumbed to his illness in a modern hospital in San Francisco. #irony”. The tweet was deemed to be insulting to Islam and Sidek Kamiso was arrested twice. Political analyst Shahbudin Husin was investigated for posting a comment piece entitled “Kenapa lawatan rasmi Zahid ke Indonesia sama tarikh dengan majlis sanding anaknya di Jakarta?” In fact, the Malaysian Bar is concerned that s.233 CMA is used too frequently to clamp down views and expression of people, restricting democratic space and creating a climate of fear to silence Malaysians.

Concluding thoughts:

Although the provisions of CMA 1988 in the UK and CMA 1998 in Malaysia might look similar from the wordings, their real-life applications are vastly different (as you can tell by comparing the cases above).

Back to MP Sivarasa case, he had instructed his lawyer to appeal against the High Court ruling. It will be interesting to see how the appeal plays out when the applications of CMA in the UK and CMA in Malaysia are compared and contrasted in the court.