Appeals court dismisses duo's appeal for leave to commence judicial review of AG's discretion

PUTRAJAYA: The Court of Appeal here dismissed on Friday (Dec 1) an appeal by two individuals who were seeking to obtain leave to commence a judicial review application to challenge the Attorney General’s discretion in deciding not to prosecute two preachers Muhammad Zamri Vinoth Kalimuthu and Firdaus Wong Wan Hung for allegedly insulting Hindus.

Justice Azizah Nawawi, who chaired a three-member bench, said the appellate court agreed with the High Court’s decision that S. Sivakumar and M. Rajasegaran failed to meet the threshold requirement for leave to be granted for them to commence the judicial review.

Justices See Mee Chun and Mohamed Zaini Mazlan were the other two judges presiding with Justice Azizah.

In the court’s unanimous decision delivered online, Justice Azizah said the Attorney General, in making a decision, would not just refer to the social media postings but also to the police reports and investigation papers before deciding on whether to charge the duo or not.

“The Attorney General, being the guardian of the public’s interest, has to act not just on the law and legal principles but also on matters relevant to public policy and national security,” she said.

Justice Azizah said while the Attorney General’s powers were reviewable, his (the Attorney General’s) discretion under Article 145(3) of the Federal Constitution, as a matter of policy, remains subject to a higher threshold of scrutiny.

Sivakumar and Rajasegaran had lodged police reports against Muhammad Zamri and Firdaus between 2018 and 2019 for allegedly insulting non-Muslims, particularly Hindus via Facebook postings or Youtube videos. They alleged that despite numerous police reports, the Attorney General failed to institute criminal charges against the duo (Muhammad Zamri and Firdaus).

In their application seeking leave to commence judicial review, the duo sought a declaration that the Attorney General’s decision not to charge the Muslim converts (Muhammad Zamri and Firdaus) as recorded in a Shah Alam Magistrate’s Court on April 26, 2021, was invalid and void.

They also sought a mandamus order to compel the Attorney General to institute criminal proceedings against the duo.

The duo claimed that in a separate proceeding involving an application by a non-governmental organisation (NGO) member to commence private prosecution against Muhammad Zamri and Firdaus, the prosecution had informed the Magistrate’s Court that the police had classified the police reports against the duo (Muhammad Zamri and Firdaus) as “no further action” (NFA).

On April 12, 2022, the High Court dismissed the duo’s leave application.

Lawyer T. Gunaseelan appeared for Sivakumar and Rajasegaran while senior federal counsel Ahmad Hanir Hambaly @ Alwi appeared for the Attorney General. - Bernama

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