Leave application for judicial review against seizure of The Herald dismissed

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KOTA KINABALU: The High Court here yesterday dismissed with cost a leave application for judicial review filed by a senior activist against the seizure of 2,000 copies of a Catholic newspaper by the Home Affairs Ministry.

The applicant, Daniel John Jambun, 57, was ordered by Justice Ravinthran Paramaguru to pay cost of RM1,500 to the sole respondent, the Ministry of Home Affairs.

Daniel was represented by counsels Tengku Fuad Ahmad and Nurul Rafeeqa Afdul Mutolip while the respondent was represented by senior federal counsel Rahazlan Affendi.

In dismissing the leave application, the court ruled that the application made has now become academic in law as the 2,000 copies of The Herald newspaper had been returned to the Catholic Church.

The court ruled that there was no necessity to examine the order made by the Ministry of Home Affairs then, and had disagreed with the applicant’s submissions on the issue.

The court also regarded there being no ‘live’ issue on the matter as the 2,000 newspapers in question, were by the applicant’s own admission, released.

Earlier, the applicant argued for leave as the courts were the only defence against what was considered as departmental aggression on the respondent’s part.

It was further argued that the actions by the ministry had been an excessive show of executive power, which they are seeking to check should leave be granted.

Thus, it is a point of law that the decision should be quashed certiorari as such excessive actions can be repeated in the future, further considering public interest in the case and the principles at stake.

In rebuttal, the respondent raised a point that the issue was purely academic and it was a futile exercise should the court decide to go into the merit of the case.

The respondent also argued that the body in question (ministry) was not amendable under judicial review proceedings.

In the applicant’s ex-parte application, he sought an order of certiorari to quash the order or “arahan” of the respondent to seize 2,000 copies of the Herald newspaper on October 25, 2013 at Kota Kinabalu International Airport.

He claimed that the respondent had acted ultra vires, and its actions were unlawful and in jurisdictional error.

He was also seeking a declaration that the order is unconstitutional and in breach of Article 11 (1) of the Federal Constitution of Malaysia which protects the freedom of religion.

He had filed the application in his capacity as an avid reader of the Catholic publication, and follower of the faith with the expectation of making a purchase of the paper on October 27, 2013, but was however unable to do so due to the respondent’s actions.

As such, the applicant sought damages and costs for interference with the applicant’s right to worship, in pursuant to Article 11 of the Federal Constitution and any other reliefs deemed fit by the court.