Two activists have been denied apex court permission to challenge the attorney-general’s (AG) decision not to prosecute Islamic preachers Muhammad Zamri Vinoth and Firdaus Wong for purportedly insulting Hindus and other non-Muslims.
A three-person Federal Court bench chaired by Harmindar Singh Dhaliwal unanimously dismissed the leave to appeal bid by S Sivakumar and M Rajasegaran to proceed with their appeal.
The other members of today’s appellate bench are judges Abdul Karim Abdul Jalil and Vazeer Alam Mydin Meera.
Speaking on behalf of fellow bench members, Harmindar ruled that the AG’s discretionary power under Article 145(3) of the Federal Constitution to charge someone at court or not can only be challenged in court under rare and exceptional circumstances.
He said this has become a legal precedent as established in the 2021 landmark ruling in the case involving Asian International Arbitration Centre (AIAC) director N Sundra Rajoo.
Landmark ruling
He added that the two applicants failed to cross the threshold of Section 96 of the Courts of Judicature Act 1964, which states that leave to appeal can only be granted if the issue involves novel questions of law that require an apex court hearing in the interest of the public.
Sivakumar and Rajasegaran lodged police reports against Zamri and Firdaus between 2018 and 2019 for allegedly insulting non-Muslims, particularly Hindus, via Facebook posts or YouTube videos.
The duo alleged that despite numerous police reports, the AG failed to institute criminal charges against the preachers.
In their judicial review application, the duo sought a declaration that the AG’s decision not to charge the Muslim converts - as recorded by the Shah Alam Magistrate’s Court on April 26, 2021 - was invalid and void.
They sought a mandamus order to compel the government’s top lawyer to institute criminal proceedings against the duo.
Sivakumar and Rajasegaran claimed that in a separate proceeding to commence private prosecution against Zamri and Firdaus, the prosecution had informed the magistrate’s court that the police had classified the police reports against the preachers as “no further action” (NFA).
On April 12, 2022, the Kuala Lumpur High Court dismissed the two activists’ application for leave to proceed with the judicial review, ruling that they failed to prove mala fide (bad faith) on the AG’s decision not to pursue charges against the preachers.
On Dec 1 last year, the Court of Appeal dismissed the duo’s appeal for judicial review leave. The activists later the same month appealed to the apex court.
Counsel T Gunaseelan acted for Sivakumar and Rajasegaran. Senior federal counsel Ahmad Hanir Hambaly @ Alwi appeared for the AG. - Mkini
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