October 1, 2012
Malaysiakini Case: Publishing Permit Allowed by High Court
by Hafiz Yatim@http://www.malaysiakini.com
The Kuala Lumpur High Court’s Appellate and Special Powers Division has quashed the Home Ministry’s decision not to grant a publishing permit to Mkini Dotcom Sdn Bhd which operates the Malaysiakini news portal.
Ruled the Ministry’s decision as “improper and irrational”, Justice Abang Iskandar Abang Hashim also said the Home Minister’s decision was misdirected as it exceeds the limit of its jurisdiction.
“The decision affects the right of the plaintiff to the right to freedom of expression which also includes the right to a permit, and it is a fundamental liberty enshrined in the constitution,” he said.
“Hence, the court allows the application for a certiorari (to quash) the decision of the respondents (Home Ministry) and the applicant needs to submit its letter to the Ministry.”
Abang Iskandar noted that freedom of expression (through publication) is a natural right and enshrined in Article 10 of the Federal Constitution. He also recognised the fact that the portal has won numerous local and international awards, and that this should not stop the authorities from not giving a permit.
Abang Iskandar also ordered the Home Ministry to pay RM5,000 in costs. K Shanmuga (left) and Edmund Bon represented Mkini Dotcom.
Mkini Dotcom had applied for the permit under Section 6(1)(a) Act 301 of the Printing Presses and Publications Act 1984 to publish a daily named ‘Malaysiakini‘.
The company had applied for a permit to publish 40,000 copies in the Klang Valley to be sold at RM1 but the Home Ministry had rejected this in August 2010.
Application to quash decision
Mkini Dotcom therefore sought to quash the minister’s decision and to obtain a declaration that the decision was unconstitutional. It named the Secretary-General and Home Minister, and the government as the respondents.
It had submitted in court that the executive and the government must be fair in its approach, as this is protected under Article 8(1) of the Federal Constitution (equality before the law).
Shanmuga said there is nothing wrong with giving a permit to the news portal as it is not a threat to the nation.
“The decision by the Secretary-General to reject giving a permit is also a restriction of freedom of the press, which has long been recognised by the common law as a breach of the protection of free speech,” he told the court.
“It also violates the freedom of expression of journalists working in Malaysiakini as they have collectively won numerous awards. A judgment in India said the newspaper industry enjoys two of the fundamental rights – namely freedom of speech and expression”.
Today’s decision comes at the back of allegations and reports from the mainstream media that Malaysiakini is out to destabilise the government (right).
Shanmuga, on commenting on today’s decision, said the Minister’s decision in not granting a permit was in breach of the rules of natural justice as he did not give any grounds (in arriving to that decision).
“The government say that the right (to give a permit) is privilege and this is not correct,” he said.
Asked whether the decision will open the floodgates to anyone wanting to publish, Shanmuga said anybody can publish a residents’ newsletter, a village paper or association newsletter as they should be free to do so.
“It may lead to more publications and freedom of expression in Malaysia,” he said.
Premesh : We hope to be in print soon
Mkini Dotcom Chief Executive Officer Premesh Chandran (right), who was also present in court, said the company welcomed the judge’s decision as Malaysiakini has been online for 13 years and a newspaper would help the company reach out to much a wider spectrum of audience.
He said he was glad the judge saw that publishing a newspaper is a matter of right as opposed to a privileged decision by the Home Minister to issue a permit.
“We will write again to the Minister as soon as possible to reconsider our application and we hope that he will consider his decision in light of the court’s decision today. We hope to be in print hopefully sooner rather than later”.
Asked whether it would be before the 13th general election, Premesh said that would depend on the Minister, as he said, “again we believe it is a right for any Malaysians to publish”.
“Hopefully the Minister, after seeing the judgment, will concur,” he said, adding although he was pleasantly surprised with today’s decision, it is the right decision for the country as it moves toward more freedom of expression.
“This will lead to more democracy, more social justice and a fairer society and this will be a move in the right direction,” he said.
NUJ welcomes decision
On the intended publication, Premesh said it will be a daily English newspaper, adding that the subscription and advertising revenues will help facilitate the cost of the print, in order to sustain it.
He said despite being in print, the online version will still be in operations as it caters to a different market comprising those reading it on personal computers, tablets and also mobile phones.
“We are extending the group to those who like to read a newspaper, to read the news which is available online. The print has a distinct role rather than the online edition,” he said.
Premesh hopes the government sees the decision as means to create further room for freedom of expression.
“Former Prime Minister Dr Mahathir Mohamad allowed the Internet not to be censored and I hope the current Prime Minister Najib Abdul Razak would do the same for the print media,” he said.
Also present today was Mkini Dotcom’s Human Resource Manager A Shamini.
In a related development, National Union of Journalists general secretary V Anbalagan welcomed today’s decision, saying it holds the minister accountable to state the reasons why they reject any application.
He said if in the past, the Minister’s decision in not granting a permit could not be questioned, however, in this case the Ministry did not give any reasons.
“Any aggrieved party can come to court to seek a judicial review over a minister or any authorities’ decision and that is the purpose of a review,” said Anbalagan.
Congratulations to the plaintiffs and the lawyers. But the ‘war’ is not over, as long as UMNO rules. Just a battle won.
Whatever the HM and (good grief!) KSU tried to do is clearly unconscionable besides being unconstitutional. This HM is no better than the previous one. Same with the sycophantic KSU. See what inbreeding and BTN’ing has wrought? The whole Ministry needs to be Reformed. Enough of dickhead decisions based on emotions, disinformation and misinterpretation of motives. Now about the Kitab..
CLF,
The Home Minister seems to be shooting himself in the foot at every turn on issues of civil liberties. As for the Secretary-General, he is part of the prevailing culture, often described as ampuism in the Civil Service.
Ampuism has arrived at a new level with the appointment of Dr. Hamsa Ali as the Chief Secretary of the Government, who, I understand, is the crony of our rogue currency trader and Minister in the Prime Minister’s Department, Nor Mohamed Yakcop, MP of Parliament for Glugor, Penang. Dr Hamsa has just removed the Mayor of Petaling Jaya, purportedly on a lateral transfer.
Perhaps,Bean can comment on this subject.–Din Merican
Frankly I don’t give a damn about the the ruling. It also mean that the mushroom of publications that falsely smeared those who are anti establishment. Kinda like the ploy on the reduction of income tax. Pave the way for Gst.
Good, on this occasion our Court is fair & just in its ruling & judgement – it wouldn’t be considered so if the ruling is otherwise. Hope there will be no more Court-bashing.
Lateral transfers can be deemed as ‘cold turkey’, which is why the former DG of JKR was adamant about his grade. Basically, there is no way to fight against the transfer order except when it goes against the G.Os. The service has been compromised since the early 80′s. It got worse with this admin. There remains a few TURUS/JUSA who hold the fort. Otherwise, there is no way they can implement anything. The technocrats are too few and far apart and competency is rewarded in a spotty basis. Depends who the mentors are. Good ‘sports’ are like house-pets.
Above all it’s incumbent that the service remains apolitical, remain true to their function and professionalism. Easier said than done. There is also some talk that the present second stringers aren’t able to hold the weight and that the pension age is to be raised for the old guards to 62. Good grief!!
Quite encouraging ,our judges started making bold decision.
While the High Court decision is welcome, what can you conclude when the PJ Mayor was given 3-day notice to assume a new post of Deputy State Secretary? This came in the midst of MBPJ annual budget exercise to be finalised on 3 October. It is like collective punishment to all PJians perhaps for being solid supporters of PR? Whatever the real reason, this is not the way to treat the Mayor even if he had step on someone’s (powerful) toes while doing his job.
Why do you think the Home Minister has not given reason or reasons for his refusal if not for the fact that under the law he is not required to give reason and that he has absolute discretion to grant and absolute discretion to refuse: Sub-clause (3) Printing Presses Act 1984. Under the common law executive decision is always subject to judicial review. Unless otherwise statutorily provided? Internal Security Act 1960 etc etc?
The Old Goat was the first Prime Minister who was not a lawyer. His predecessors were all lawyers trained in the tradition of the English common law. Is it any surprise that this insecure Old Goat did not show the same respect for the Rule of Law? During his Reign of Terror ( yes, he was a new breed of terrorists i.e. a term difficult to define but you would know when you see one much like pornography) he introduced a plethora of legislation seeking to limit freedom of speech. It was to be his speech or no speech. Never mind that the right to free speech is guaranteed under the country’s Constitution under Article 10 (1) subject only to Clauses 2,3 and 4 i.e. “in the security of the Federaton …. public order, morality, protection of privileges of Parliament, defamation and incitement to any offence”.
The Home Minister himself a law graduate from a prestigious university can be expected to dodge the issue by claiming that the Act allows him “absolute discretion” to grant or to refuse – meaning his discretion cannot be questioned. We heard that argument before when dealing with Article 145 3(3) of the Federal Malaysian Constitution 1957 which I might add has not been tested. But under Article 145 3(3) the language used has room for argument. Not so under the Printing Presses Act 1984. Here it says “absolute discretion”.
My advice is best to reserve that bottle of champagne for President Barack Obama winning his second term. Victory is likely to go to the Old Goat.
I hope the RM5000 costs awarded will come from the pockets of the HM and the Sec Gen and not from public coffers.
How do people like the Sec Gen and all the other civil servants who should make decisions purely on merits of the case and not the whims and fancies of some half-baked minister, face themselves every morning when they go off to work? Or before they go to sleep at night. Obviously playing second fiddle to the minister and governing party seems to be the new SOP of the PTD.
And today we have the newly minted KSU of the MOF saying that contingent liabilities are not taken into account in measuring the federal debt. That’s akin to saying all the forex losses were just paper losses. Guess he must have learnt his accounting from his political bosses.
His next statement, that government will “by hook or by crook” keep the debt under the 55 percent threshold, is equally telling. More likely by crook, because hooking onto the coattails of the BN crooks is the fastest way to rise up the bureaucratic feedline.
“And today we have the newly minted KSU of the MOF saying that contingent liabilities are not taken into account in measuring the federal debt.” Bo
Yes, Bo. Bo is also Obama’s initial. Where else would they hide their losses except under ‘Contingent Liabilities”? It is always a red flag when you see a huge sum under “Contingent Liabilities”.
Hussin / Hamid: A summer does not a swallow maketh….
“Our judges started making bold decision.” @ Hamid
Really? What good is that when almost every judgment that goes against the Goons is sure to be appealed by the AGC who doesn’t care less for what ‘natural’ Justice means? To look ‘good’, they bend every rule in their book to avoid embarrassment. Besides the PTD, the Judiciary too has many carma flurs who couch their decisions with incomprehensible legalese. Trained in Law does not necessarily translate into Proper Practice and Interpretation of Law.
What happened to the Mayor is symptomatic of the wrangling that is happening within the service and the general population wracked by political divisiveness. Being fair, impartial, professional and doing your utmost in the job is not sufficient. You are expected to kowtow to, besides ‘kautim’ for, the political bosses. This is usually what Communist Cadres do. Even UMNO youth/punks has more clout than senior PTDs. All it needs is a complaint.
The State Secretaries and CFOs, who are appointed by the Feds can make or break any state admin. The ex-mayor being made the deputy SS, is now effectively in cold storage. That’s what happens to the ‘few good men’.
There is nothing bold about the decision. The court was only exercising the right to judicial review in declaring that the Home Minister will have to make known the reason or reasons for his refusal. There are two issues involved. First, the refusal to grant permission. And secondly, the refusal to give reasons for the refusal. Kapish?
Perhaps the judges are hedging their bets on a Pakatan win in the next GE. Better do it right now.
There is something the judges know which we don ‘t know.