The Court of Appeal delivered a split decision in dismissing the appeal by Global Human Rights Federation (GHRF) president S Shashi Kumar, Parti Bansa Dayak Sarawak president Bobby William, Sarawak Association for People’s Aspiration president Ng Kim Ho, Ex-Students of Chinese Schools vice-president Chan Tuck Loong, and Pertubuhan Malaysia Tamilar Munnetra Kalagam president K Sri Ramesh.
Justice Wan Ahmad Farid Wan Salleh, delivering the majority ruling, said there was no prima facie evidence that the attorney-general had acted unreasonably or irrationally.
He also noted that the applicants’ complaints were based on video clips that appeared to have been edited.
“In a judicial review, the AG plays two roles,” said Wan Ahmad.
“At the leave stage, he only assists the court in determining whether the application is frivolous.”
Justice Hashim Hamzah concurred with Wan Ahmad. The majority held that at the leave stage, the AG is not required to file an affidavit in reply to the applicant’s contentions.
Wan Ahmad also said the applicants failed to show any mala fide and had not contacted the AG regarding the investigation or possible prosecution.
However, Justice Wong Kian Kheong dissented, saying the applicants had met the low threshold for leave as their application was neither frivolous, vexatious, nor baseless – criteria established in a long line of case law.
Wong also said that naming the inspector-general of police (IGP) as a putative respondent was not fatal to the case, as the misjoinder of parties is permissible under the Rules of Court.
Lawyer T Gunaseelan, assisted by R Kumaradevan, said he had received instructions from the applicants to file an appeal to the Federal Court.
Senior federal counsel Nur Idayu Amir and federal counsel Imtiyaz Aufa Othman represented the AG and the IGP.
The five groups initially filed their leave application at the Kuala Lumpur High Court on Sept 15, 2022. It was dismissed the following year.
They sought a declaration that the refusal to act against Syakir was unlawful and constituted an abuse of power by the police and AG.
The applicants also requested a mandamus order to compel action against the preacher, and a declaration that the AG’s decision was arbitrary and in violation of Article 8 of the Federal Constitution, which states that there shall be no discrimination against any person, and that all persons are equal before the law.
They further argued that the AG failed to carry out his duties under Article 145 of the constitution, which concerns the discretionary power of the AG to institute, conduct or discontinue criminal proceedings.
Their legal action followed a letter dated June 17, 2022 from Bukit Aman, stating that the investigation paper had been submitted to the Attorney-General’s Chambers (AGC) on Dec 13, 2021, and that the case was classified as NFA.
On Oct 1, 2021, a one-minute video of Syakir went viral on social media and WhatsApp. In the clip, he was heard saying that “at the end of time, non-believers would be scrambling together to kill Muslims”.
He specifically named Hindus, Buddhists, and Dayaks as groups wanting to annihilate Muslims.
Thousands of police reports were lodged across the country against the preacher.
Syakir later released a video to explain the matter and claimed that the controversial clip had been edited and misinterpreted.
He said the sermon was intended only for a Muslim audience and was not meant to be recorded or shared.