Government of Malaysia v Heidy Quah Gaik Li

1. INTRODUCTION

If a constitutionally valid law keeps being wrongly used, should it be struck out? This is the paradox in Government of Malaysia v Heidy Quah Gaik Li,¹ a case involving a challenge to Section 233(1)(a) of the Communications and Multimedia Act 1998 (“CMA”).²

As a landmark case defining digital speech freedom, it highlights how the Federal Court balanced the protection of constitutional liberties against the government’s need to regulate online speech. The judgment vindicated and disappointed Malaysia’s free speech advocates in the same breath: it upheld the Respondent’s freedom of speech, yet reversed the Court of Appeal’s decision to strike out the restriction on it. This analysis therefore examines how the Federal Court reconciled these two seemingly conflicting outcomes, and what effect the decision has had on freedom of speech.

2. FACTS OF THE CASE

The Respondent, Heidy Quah, was charged under Section 233(1)(a) CMA over a Facebook post alleged to be offensive. The post contended that the inadequate living conditions in Malaysian immigration detention centres caused Covid-19 to spread within them.

Separately, the Respondent filed an originating summons seeking to strike out the words “offensive” and “annoy”, or one of them (the “Impugned Words”), in the section. She argued that they were inconsistent with Article 10 of the Federal Constitution (“FC”),³ which protects freedom of speech. The Government of Malaysia (the “Appellant”) opposed the application.

The High Court dismissed the summons. On appeal, however, the Court of Appeal held in August 2025 that the Impugned Words were unconstitutional. The Appellant then appealed to the Federal Court, which delivered a delicately balanced ruling on 6 February 2026.

It should be noted that Section 233(1)(a) CMA has since been amended by the Communications and Multimedia (Amendment) Act 2025, which substituted “offensive” with “grossly offensive”, retained “annoy”, and increased the penalties.⁴ The challenge in this case concerned the words as they stood before that amendment.

3. LEGAL ISSUES & ARGUMENTS

3.1. Issue 1: Interpretation of Articles 4 and 10 FC

Article 4(1) FC states that any law inconsistent with the FC shall, to the extent of the inconsistency, be void.⁵ However, Article 4(2)(b) FC limits this power by precluding the courts from questioning whether a restriction on freedom of speech under Article 10(2)(a) FC is “necessary”.⁶ Hence, the Court had to interpret how Article 10 FC operates within the framework of Article 4 FC. This in turn determined whether it could review Section 233(1)(a) CMA.

The Appellant submitted that Article 4(2)(b) FC aims to exclude any inquiry into whether a restriction falls within the permissible grounds in Article 10(2) FC. It relied on the reports of the Federation of Malaya Constitutional Commission (the Reid Commission) and the Working Party, arguing that the drafters of the FC wanted Parliament to have an unchallengeable power to restrict free speech. It also asked the Court to revisit Pung Chen Choon,⁷ which held that Article 4(2)(b) FC only prevents the courts from questioning whether a restriction is “necessary”, but does not prevent review of whether it falls within the permissible grounds.

The Respondent countered that Pung Chen Choon remained good law, since it correctly confined the fetter in Article 4(2)(b) FC to questions of necessity, not permissible grounds.

3.2. Issue 2: Scope of Article 10(1)(a) FC and the Intent of Section 233(1)(a) CMA

Another issue was whether Section 233(1)(a) CMA contravenes Article 10(1)(a) FC.⁸

The Appellant argued that Section 233(1)(a) CMA sought to prevent improper online communications and was enacted in the public interest, which aligns with Article 10(2)(a) FC. Thus, its protective use is not a suppression of freedom of speech.

At the High Court, the Respondent’s argument revolved around the vagueness of the Impugned Words, asserting that the law is unconstitutionally uncertain. On appeal, she submitted that the scope of freedom of speech under Article 10(1)(a) FC should be read expansively: all speech should be presumed protected unless the government can justify a restriction under the permissible grounds in Article 10(2)(a) FC. This was echoed by the Malaysian Bar Council. The Respondent further argued that, since Section 233(1)(a) CMA made no reference to the preservation of public order, it fell outside the permissible restrictions.

3.3. Issue 3: Remedy Other Than Striking Out

To maintain the separation of powers, the Judiciary should exercise the power of striking out cautiously. Hence, the third issue was whether the Impugned Words ought to be struck out merely because of the unwarranted prosecution.

On how Section 233(1)(a) CMA should be construed, the Appellant submitted that the doctrine of proportionality should not be applied, since Article 4(2) FC was already engaged for that purpose. It also asked the Court to consider first whether the Impugned Words could instead be read down.

Conversely, the Respondent argued that the doctrine of proportionality should be invoked, contending that the Appellant had failed to show a rational and proportionate nexus between Section 233(1)(a) CMA and its aim.

4. COURT’S DECISION AND REASONING

Although the Federal Court affirmed that there was no basis to prosecute the Respondent, it reversed the Court of Appeal’s decision to strike out the Impugned Words.

4.1. Reasoning 1: Preserving Judicial Review

The Federal Court refused to revisit Pung Chen Choon.⁹ Instead, it reaffirmed that Article 4(2)(b) FC prohibits only review of the necessity of the law, not review of whether the law falls within the permissible restrictions.

This was because, if the Court read Article 4(2)(b) FC expansively, the entire list of permissible restrictions under Article 10(2)(a) FC would become otiose. The government could pass any law by labelling the restriction as falling within the permissible grounds, and no one could ever challenge it.

Hence, the Court had the power to review Section 233(1)(a) CMA.

4.2. Reasoning 2: The Inherent Boundaries of Freedom of Speech

The Federal Court held that Article 10(1)(a) FC serves to protect democracy, and thus speech intended to offend, annoy, or cause harm does not fall within it. Moreover, since the CMA aims to prevent improper online communications and to protect users, Section 233(1)(a) does not infringe the constitutional guarantee of freedom of speech.

4.3. Reasoning 3: The Vagueness Avoidance Doctrine

Relying on the doctrine of vagueness, the Federal Court explained that striking down is a last resort, to be invoked only when the impugned law cannot be saved. The present case, in contrast, concerned unwarranted prosecution, which is a prosecutorial problem. The appropriate response was judicial construction, not striking out.

Moreover, in construing the law, the Court stated that the doctrine of proportionality need not be applied. This is because Articles 4 and 10 FC, read together, already provide the measure for how the law should be construed.

The Court applied the core-penumbra narrowing construction to read down the section. It held that the Impugned Words should be read contextually, not in isolation, and that their identifiable core lies in the mens rea component, “with intent to annoy”. This means that the section requires not only “offensive” content, but also a clear and objective “intent to annoy”. Hence, the section does not criminalise “offensive” content, or annoyance as a mere consequence, but rather targets the specific intention.

The Impugned Words were thereby saved from vagueness.

5. CRITICAL ANALYSIS

5.1. Legal Principles Established and Their Implications

5.1.1. Principle 1: Article 4(2) FC does not eliminate judicial review under Article 4(1) FC

The case established that Article 4(2) FC does not entirely preclude judicial review. This reaffirms the principle of constitutional supremacy: the Constitution, not Parliament, remains the supreme law, with the Judiciary acting as a check against legislative overreach.

5.1.2. Principle 2: Freedom of speech under Article 10(1)(a) FC is not absolute

This case ruled that freedom of speech does not include speech intended to cause annoyance or harm. This helps to fill the vacuum left by the Court of Appeal’s ruling by restoring the government’s legislative mechanism to counter the misuse of online communications.

5.1.3. Principle 3: Striking out is only a last resort

The Federal Court clarified that striking out is only a last resort. Hence, it read the provision narrowly and held that Section 233(1)(a) CMA requires proof of an intent to annoy. Although this was not the Respondent’s original claim, she welcomed the decision, since it raises the evidential burden on prosecutors and may reduce unwarranted prosecutions.

5.2. Comparative Perspectives

Beyond its domestic implications, the decision is best understood alongside comparative authorities. Holistically, the Federal Court charted a distinct middle path, neither striking out the law nor waiting for legislative redrafting. The delicately balanced decision illustrates self-conscious judicial restraint: the Court respected the separation of powers by preserving Parliament’s legislative choice rather than substituting its own. Moreover, the decision demonstrates constitutional autonomy, as the Court considered comparative authorities without automatically adopting them.

5.2.1. United Kingdom

In DPP v Collins,¹⁰ the House of Lords similarly dealt with Parliament’s objective in criminalising “grossly offensive” communications under Section 127 of the UK Communications Act 2003.¹¹ Although Section 127(1)(a) does not explicitly require a defendant’s state of mind, the Court read it narrowly by focusing on the word “grossly”, ruling that the section requires a higher threshold than merely sending objectively offensive words. This restrictive interpretation prevented the offence from extending to ordinary offensive speech, and demonstrated the judiciary’s effort to balance legislative purpose against freedom of speech.

In R v Casserly,¹² the appellant contended that his conviction under Section 1(1)(b) of the Malicious Communications Act 1988, which criminalises “grossly offensive” electronic communications sent with intent to cause distress or anxiety, was incompatible with Article 10 of the European Convention on Human Rights.¹³ The Court of Appeal allowed the appeal and quashed the conviction, holding that Article 10 must be fairly reflected when deciding whether a communication is “grossly offensive”, and that the threshold is a high one where political speech is involved. This again illustrates a court reading a broadly worded offence in light of freedom of expression.

Here, the Federal Court was asked whether these authorities applied in the present case. The Court declined to answer, holding that its own analysis under Articles 4 and 10 FC was sufficient. This showcases the Judiciary’s autonomy, as the interpretation is ultimately grounded in Malaysia’s own constitutional framework.

5.2.2. India

In Shreya Singhal v Union of India,¹⁴ the Supreme Court of India struck down Section 66A of the Information Technology Act 2000, which criminalised messages causing “annoyance” or of a “grossly offensive” character. The reasoning was that the section was vague and contravened Article 19(1)(a) of the Constitution of India.¹⁵

Despite the closely comparable wording, the Federal Court distinguished the case on two grounds. First, unlike the Indian Constitution, the FC generally requires constitutional challenges to be examined on their factual matrices. Therefore, the Court did not treat vagueness as an abstract issue, but assessed whether the Impugned Words, in their specific legal context, created constitutional difficulty. Second, Shreya Singhal challenged the entire section, leaving the Supreme Court of India little choice but to strike it down. Conversely, this case concerned only the two Impugned Words, allowing the Federal Court to read them down. This difference is significant because the Federal Court adopted constitutional preservation rather than constitutional invalidation, demonstrating its commitment to both constitutional supremacy and judicial restraint.

5.3. Personal Insights

Having considered the Federal Court’s approach in comparative context, this section offers a critical assessment of the decision.

The strength of the judgment is that the Court avoided an all-or-nothing outcome that would have left genuine victims unprotected. By separating the particular unwarranted prosecution from the question of constitutionality, the Court protects not only freedom of speech but also society from harmful speech.

Nevertheless, its limitation is the uncertainty regarding the distinction between offensive criticism and genuine abuse. This may lead not only to unwarranted prosecutions, but also to political weaponisation and inconsistent choice of charge.

5.3.1. Subjectivity of the Impugned Words and Political Weaponisation

Despite the requirement of strict proof of intent under Section 233(1)(a) CMA, the inherent subjectivity of the Impugned Words leaves the provision vague, providing scope for political weaponisation.

For instance, Fahmi Reza has been repeatedly prosecuted under Section 233 CMA over the years for critiquing political leaders.¹⁶ This pattern raises a legitimate concern about selective or politically influenced enforcement, although repeated prosecution alone cannot establish improper prosecutorial motive.

5.3.2. Overlapping Laws and Inconsistent Choice of Charge

Another issue is the overlap between laws. The Social and Economic Research Initiative contended that freedom of speech in Malaysia is governed by several laws, including the CMA, the Sedition Act and the Penal Code.¹⁷ However, prosecutors are not given a clear definition and distinction of the vague wordings among these provisions, such as the phrase “likely to cause fear or alarm” or the word “incite” in Section 505(b) and (c) of the Penal Code,¹⁸ and the word “seditious” in the Sedition Act.¹⁹ Consequently, prosecutors might invoke different laws to charge two individuals who commit a similar offence.

To be clear, the concern here is that different offences are charged inconsistently across similar conduct, not that one offence is punished twice.

Three cases involving royalty, political leaders and race illustrate this. First, Patrick Teoh, who allegedly insulted the Crown Prince of Johor on Facebook, was charged solely under Section 233 CMA.²⁰ Second, Dian Abdullah, who criticised the Prime Minister and the King, was charged under both Section 233 CMA and Section 505(b) of the Penal Code.²¹ Third, Rex Tan, who asked a question regarding racial discrimination at a public lecture, was investigated under Section 4(1) of the Sedition Act 1948, Section 505(c) of the Penal Code and Section 233 CMA.²²

Despite broadly similar conduct, the statutory basis and resulting penalty exposure differed significantly. The first faced a single statute; the second faced two statutes, with cumulative penalty exposure; and the third faced the prospect of three overlapping statutes simultaneously.

People might argue that these differences stem from rational prosecutorial judgment, such as differences in case facts and strength of evidence. However, this does not fully account for the issue. The Federal Court found that the Respondent’s prosecution stemmed from prosecutors’ failure to properly understand Section 233(1)(a) CMA, rather than from a careful judgment. Similarly, in Rex Tan’s case, a CMA investigation was reportedly opened even though he had not personally posted anything online.

This reflects a deeper problem in how prosecutors differentiate and select charges for comparable speech.

5.3.3. Chilling Effect

The subjectivity of the Impugned Words and the overlapping laws together create significant rule-of-law concerns. Unclear statutory boundaries undermine legal certainty and foreseeability, while discretionary prosecutorial charging threatens the equal application of the law. Ultimately, this unpredictability produces a chilling effect, driving speakers to self-censor lawful expression. This concern is reflected in the World Press Freedom Index published by Reporters Without Borders (RSF), in which Malaysia slipped from 73rd place in 2023 to 107th in 2024, recovered to 88th in 2025, and fell again to 95th in 2026.²³ The Index measures press freedom generally rather than the effect of Section 233 alone, but the volatility of the ranking is consistent with the unpredictability described above.

6. CONCLUSION

“Where there is no law, there is no freedom.”²⁴ This quotation from the philosopher John Locke aligns closely with the judgment in Government of Malaysia v Heidy Quah Gaik Li,²⁵ which reaffirmed that rules protect people from harm, so that true liberty needs fair laws in order to exist.

However, while Government of Malaysia v Heidy Quah Gaik Li rightly rescues Section 233(1)(a) CMA from unconstitutionality, its narrow focus on the provision’s wording leaves untouched the deeper structural problems of political weaponisation, statutory overlap and prosecutorial discretion that make Malaysia’s speech laws unsafe in practice.

More importantly, Government of Malaysia v Heidy Quah Gaik Li is not an isolated case. It is the tip of a systemic iceberg of prosecutorial problems under the right to freedom of speech. Therefore, further reform is needed:

• Replace or clearly define the Impugned Words, given that the 2025 amendment retained “annoy” and only qualified “offensive” as “grossly offensive”;
• Distinguish protected criticism from genuine harassment;
• Require proof of actual or likely serious harm;
• Introduce prosecutorial guidelines similar to those in the United Kingdom.

FOOTNOTE(S):

1. Government of Malaysia v Heidy Quah Gaik Li [2026] MLJU 384 (FC).
2. Communications and Multimedia Act 1998 [Act 588], s 233(1)(a).
3. Federal Constitution, art 10.
4. Communications and Multimedia (Amendment) Act 2025.
5. Federal Constitution, art 4(1).
6. Federal Constitution, arts 4(2)(b) and 10(2)(a).
7. Public Prosecutor v Pung Chen Choon [1994] 1 MLJ 566 (SC).
8. Federal Constitution, art 10(1)(a).
9. Pung Chen Choon (n 7).
10. DPP v Collins [2006] UKHL 40.
11. Communications Act 2003 (UK), s 127(1)(a).
12. R v Casserly [2024] EWCA Crim 25.
13. Malicious Communications Act 1988 (UK), s 1(1)(b); European Convention on Human Rights, art 10.
14. Shreya Singhal v Union of India (2015) 5 SCC 1.
15. Information Technology Act 2000 (India), s 66A; Constitution of India 1950, art 19(1)(a).
16. See Front Line Defenders, “Fahmi Reza Sentenced to Prison and Fined” (Front Line Defenders, 11 July 2019) accessed 4 August 2026.
17. See Ashwin Kumar, “Revamp Hate Speech Laws for Clearer Enforcement – Think Tank” (Sinar Daily, 5 April 2024) accessed 4 August 2026.
18. Penal Code [Act 574], s 505(b) and (c).
19. Sedition Act 1948 [Act 15], ss 3 and 4(1).
20. Communications and Multimedia Act 1998 (n 2) s 233.
21. Communications and Multimedia Act 1998 (n 2) s 233; Penal Code (n 18) s 505(b).
22. Sedition Act 1948 (n 19) s 4(1); Penal Code (n 18) s 505(c); Communications and Multimedia Act 1998 (n 2) s 233. See also Human Rights Commission of Malaysia (SUHAKAM), “Media Statement No. 02-2026: Freedom of Expression at Stake, SUHAKAM Responds to the Application of the Sedition Act, Penal Code and CMA in a Journalistic Context” (SUHAKAM, 21 January 2026) accessed 4 August 2026.
23. Reporters Without Borders (RSF), “Malaysia” (World Press Freedom Index) accessed 20 September 2026; FMT Reporters, “Malaysia Drops 34 Places to 107th in Press Freedom Index” (Free Malaysia Today, 3 May 2024) accessed 4 August 2026.
24. John Locke, Second Treatise of Government (first published 1689, Everyman 1993) ch 6, s 57.
25. Government of Malaysia v Heidy Quah Gaik Li (n 1).

7. REFERENCE(S):

7.1. Primary Sources

7.1.1. Cases

1. DPP v Collins [2006] UKHL 40 (House of Lords).
2. Government of Malaysia v Heidy Quah Gaik Li [2026] MLJU 384 (Federal Court of Malaysia).
3. Public Prosecutor v Pung Chen Choon [1994] 1 MLJ 566 (Supreme Court of Malaysia).
4. R v Casserly [2024] EWCA Crim 25 (Court of Appeal of England and Wales).
5. Shreya Singhal v Union of India (2015) 5 SCC 1 (Supreme Court of India).

7.1.2. Legislation

1. Communications and Multimedia Act 1998 [Act 588], s 233(1)(a).
2. Communications and Multimedia (Amendment) Act 2025.
3. Communications Act 2003 (UK), s 127(1)(a).
4. Constitution of India 1950, art 19(1)(a).
5. European Convention on Human Rights, art 10.
6. Federal Constitution 1957, arts 4(1), 4(2)(b), 10(1)(a) and 10(2)(a).
7. Information Technology Act 2000 (India), s 66A.
8. Malicious Communications Act 1988 (UK), s 1(1)(b).
9. Penal Code [Act 574], s 505(b) and (c).
10. Sedition Act 1948 [Act 15], ss 3 and 4(1).

7.2. Secondary Sources

7.2.1. Books

1. Locke J, Second Treatise of Government (first published 1689, Everyman 1993).

7.2.2. Websites

1. American Bar Association Center for Human Rights, Malaysia: A Preliminary Report on Criminal Proceedings Against B (American Bar Association) accessed 4 August 2026.
2. Ashwin Kumar, “Revamp Hate Speech Laws for Clearer Enforcement – Think Tank” (Sinar Daily, 5 April 2024) accessed 4 August 2026.
3. Centre for Independent Journalism (CIJ), “Malaysia: Court Ruling on the Communication and Multimedia Act a Setback for Free Speech” (IFEX, 6 February 2026) accessed 4 August 2026.
4. CIVICUS, “Malaysia: Ismail Sabri’s Government is Undermining Fundamental Freedoms” (CIVICUS, 23 August 2022) accessed 4 August 2026.
5. FMT Reporters, “Malaysia Drops 34 Places to 107th in Press Freedom Index” (Free Malaysia Today, 3 May 2024) accessed 4 August 2026.
6. Front Line Defenders, “Fahmi Reza Sentenced to Prison and Fined” (Front Line Defenders, 11 July 2019) accessed 4 August 2026.
7. Human Rights Commission of Malaysia (SUHAKAM), “Media Statement No. 02-2026: Freedom of Expression at Stake, SUHAKAM Responds to the Application of the Sedition Act, Penal Code and CMA in a Journalistic Context” (SUHAKAM, 21 January 2026) accessed 4 August 2026.
8. Human Rights Watch, “Malaysia: Stop Treating Criticism as Crime” (Human Rights Watch, 8 July 2020) accessed 4 August 2026.
9. Reporters Without Borders (RSF), “Malaysia” (World Press Freedom Index) accessed 20 September 2026.