Judicial commissioner Wendy Ooi said there was no merit in the appeal brought by Global Human Rights Federation (GHRF) president S Shashi Kumar against the public prosecutor.
“The magistrate made a correct finding in dismissing the application to commence private prosecution,” she said.
Lawyer S Ravichandran, who represented Shashi, said he would take instructions from his client on whether to pursue the matter in the Court of Appeal.
“It is not an automatic right of appeal. We will need to identify legal questions to secure leave for the merits of the appeal to be heard,” he told FMT.
On Sept 3 ,2021, magistrate Redza Azhar Rezali disallowed the application as the matter was still under investigation.
Redza also held that Shashi’s complaint could also not be entertained as Firdaus Wong and Zamri Vinoth Kalimuthu are alleged to have committed seizable offences.
However, he said the complaint by Shashi had been made under Section 133 of the Criminal Procedure Code, which only applied to non-seizable offences.
The magistrate said he took note of the information provided by deputy public prosecutor Ainul Amirah Abdul Razak who appeared before him in April 2021.
Ainul Amirah had said the police were still investigating the reports under Section 298A of the Penal Code.
That section provides for the offence of promoting enmity on grounds of religion or race and for acts prejudicial to the maintenance of harmony.
Those found guilty may be jailed for a minimum two years and a maximum five years.
Redza said the discretion as to whether to prosecute anyone for the offence lies with the attorney-general, and can only be exercised after investigations have been completed.
Moreover, he said, the court could not conduct an inquiry into the matter as it did not have the necessary information.
Redza also said Section 298A was a seizable offence which allowed the police to arrest and detain suspects.
Shashi initiated the action against Firdaus, who is the president and founder of the Multiracial Reverted Muslims (MRM), and Zamri, who are both said to be associated with controversial preacher Zakir Naik.
Firdaus is said to have insulted persons professing non-Muslim religions, particularly those of the Hindu faith, through postings on Facebook and YouTube.
In a statutory declaration, Shashi said he had lodged a police report against Firdaus in January 2018 after having seen their postings on both social media platforms.
“The contents have given rise to hatred and insults toward non-Muslims in Malaysia, and are likely to cause breach of peace,” he said, adding that many others had also made similar reports.
Shashi said he had sent a memorandum to then prime minister Dr Mahathir Mohamad as well as to the home, communications and multimedia, and national unity ministers, the Islamic Affairs department and the Attorney-General’s Chambers in October 2018.
In a separate statutory declaration, Shashi said he had also lodged a police report against Zamri in June last year, for allegedly insulting the rituals and practices of Hinduism via postings on his Facebook account which had gone viral.
“His postings are likely to cause hatred and upset the religious harmony among the people of different faith,” he said.
He said he had inquired with the police as to the status of his reports against the two but received no response.