Tuesday, September 26, 2023

Five groups fail in court bid to get Muslim preacher prosecuted

Five groups fail in court bid to get Muslim preacher prosecuted

The Kuala Lumpur High Court has denied leave for five groups to proceed with judicial review to compel the attorney-general (AG) and inspector-general of police (IGP) to prosecute Muslim preacher Syakir Nasoha for his alleged inflammatory remarks against non-Muslims.

Judge Ahmad Kamal Md Shahid this afternoon delivered the ruling over the legal action filed by Global Human Rights Federation (GHRF), Parti Bangsa Dayak Sarawak, Sarawak Association for People’s Aspiration, Ex-Students of Chinese Schools and Pertubuhan Malaysia Tamilar Munnetra Kalagam.

In September last year, NGOs turned to the civil court over the authorities’ classification of the case against Syakir (above) as no further action (NFA), in relation to the preacher's 2017 speech at Masjid Abu Bakar in Sungai Petani, Kedah.

During online proceedings today, Ahmad Kamal ruled that the applicants have failed to provide prima facie (strong evidence) that the AG made the NFA with mala fide (bad faith).

The judge pointed out that this was especially so when the AG's decision was based on finding that the uploaded portion of Syakir's speech, which went viral, had actually been edited from its original content.

Ahmad Kamal said that as the AG's power to initiate prosecution is cloaked with a strong presumption of legality per Article 145(3) of the Federal Constitution, then the applicants must provide more evidence than just mere police reports and quoting online excerpts of the speech.

High Court Judge Ahmad Kamal Md Shahid

The judge pointed out that legal precedents showed that only in rare and exceptional circumstances can the courts be allowed to review an AG's decision not to prosecute someone.

"This court is of the view that the applicants must come to the court with more than just police reports and quotes of the speech. Without more evidence, this court has no power to intervene in the issue of the AG's discretion," he said.

"The instruction was for NFA as the vital part of the speech (sourced from online excerpts) was edited from the original recording.

"After considering the entire context of the video (speech), the AG decided that no part of it touches on religious sensitivity in Malaysia.

"The AG would not just consider police reports and speech excerpts but also other factors as well, in light of issues that touch on sensitive issues of race and religion that can cause disunity in multi-religious Malaysia.

"The AG's decision must be given the benefit of the doubt that it was reasonable, rational and bona fide unless rebuffed by evidence to the contrary.

"The AG, as guardian of public interest, must have considered factors not available to this court or to the applicants (in relation to the NFA decision)," Ahmad Kamal said.

Wrongly named IGP in suit

The judge also pointed out that the judicial review also wrongly named the IGP as one of two respondents targeted by the judicial review as the top cop is not the decision maker behind the NFA. The other respondent is the AG.

Ahmad Kamal made an order as to costs. Lawyer Keshvinjeet Singh acted for the five groups, while senior federal counsel Ahmad Hanir Hambaly @ Arwi appeared for the IGP and AG.

With the civil court denying leave to commence judicial review, it would not be hearing parties' submissions on the merits of the legal action.

Previously, GHRF president S Shashi Kumar reportedly said the judicial review was filed following a reply he received from Bukit Aman on June 17 last year, stating that the case against Syakir has been classified as NFA after the investigation papers were submitted to the Attorney-General’s Chambers (AGC).

“But here they are only talking about one video which is enough to convict Syakir under the Sedition Act. What about the other three videos?” Shashi asked in a media statement.

He was referring to remarks allegedly made by Syakir in four videos posted on social media.

Global Human Rights Federation president S Shashi Kumar

The GHRF president claimed the contents of the videos propagate “racism, fanaticism and extremism”.

The five groups were seeking a declaration that the refusal to act against Syakir was unlawful and an abuse of power on the part of the police and AG.

They were also seeking an order of mandamus to compel the authorities to act against the preacher as, according to the applicants, the AG had failed to carry out his duties and his decision was arbitrary and violated Article 8 of the Federal Constitution.

Shashi further claimed that Syakir’s case is not the first time reports lodged against similar cases have ended up being classified as NFA.

He said reports were also lodged against other religious preachers who have allegedly made inflammatory remarks as well, such as Zamri Vinoth Kalimuthu, Firdaus Wong Wai Hung and Idris Sulaiman.

However, there have been no updates on these cases from the police since the reports were lodged, he said.

“Why such double standards?” Shashi questioned while pointing to Articles 8(1) and 8(2) of the Federal Constitution.

Article 8(1) states that all persons are equal before the law and are entitled to equal protection of the law while 8(2) states that there shall be no discrimination against citizens on the grounds only of religion, race, descent, place of birth or gender in any law.

Back in Dec 2021, a memorandum jointly signed by close to 60 multiracial civil society groups was handed over to Bukit Aman, questioning the delay in arresting Syakir for his remarks.

At the time, Syakir was being probed under Section 505(c) of the Penal Code for making a statement with intent to incite or which is likely to invite any class or community of persons to commit any offence against any other class or community of persons, and also Section 233 of the Communications and Multimedia Act 1988 for abuse of net facilities or network services.

In his statement, Shashi said they have decided to take this matter up to the court after all their other efforts were unsuccessful throughout the BN, Pakatan Harapan and Perikatan Nasional (PN) administrations.

“We have currently three active cases pending in the court with regard to insulting non-Islamic religions in this country by irresponsible Muslim preachers,” he said.

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