A three-member Federal Court bench chaired by Justice Rhodzariah Bujang dismissed their application for leave to appeal on two legal questions posed.
“The questions of law did not meet the high threshold as required under Section 96 of the Courts of Judicature Act 1964,” said Rhodzariah, who sat with Justices Vazeer Alam Mydin Meera and Nazlan Ghazali.
Under Section 96, leave is granted only when a case raises novel constitutional or legal questions of public importance for the first time.
Lawyers T Gunaseelan and R Kumaradevan represented the five applicants, who filed for leave at the Kuala Lumpur High Court on Sept 15, 2022, seeking a declaration that the refusal to act against Syakir was unlawful and an abuse of power by the police and AG.
Senior federal counsel Ahmad Hanir Hambali and federal counsel Imtiyaz Wizni Othman represented the AG and the inspector-general of police.
The applicants were Global Human Rights Federation 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.
No order for costs was made against the applicants.
Their appeal was dismissed by the Court of Appeal in a split decision on July 10.
Justice Wan Ahmad Farid Wan Salleh, delivering the majority ruling, said there was no prima facie evidence that the AG had acted unreasonably or irrationally. He also noted that the applicants’ complaints relied on video clips that appeared edited.
Wan Ahmad Farid, who is now the chief justice, said that at the leave stage for judicial review, the AG’s role is only to assist the court in determining whether the application is frivolous.
The majority held that the AG was not required to file an affidavit in reply to the applicants’ contentions. Wan Ahmad Farid also said the applicants failed to show any mala fide and had not contacted the AG regarding the investigation or possible prosecution.
Justice Hashim Hamzah concurred with Wan Ahmad Farid.
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.
The case stemmed from a one-minute video of Syakir that went viral in October 2021 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”, specifically naming Hindus, Buddhists, and Dayaks as groups who would want to annihilate Muslims.
Thousands of police reports were lodged nationwide against the preacher, but Syakir later said the clip had been edited and misinterpreted. He claimed that his sermon was intended only for a Muslim audience and was not meant to be recorded or shared.