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.
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.