Home minister must now give good reasons for rejecting newspaper permits, say lawyers

Malaysian dailies are subjected to strict supervision by the home ministry. The ministry had rejected an application by online portal Malaysiakini to go hardcopy, saying profit margin of other publishers would be affected. – The Malaysian Insider file pic, June 3, 2014.The Home Minister must now give good reasons to reject any application for a newspaper publishing permit, as the High Court has ruled that publishing a newspaper was a constitutional right and not a privilege accorded by Putrajaya, say constitutional lawyers.

They said that following the ruling, the minister no longer had the absolute discretion to reject applications on grounds of national security, public order and morality.

That High Court decision was upheld by a three-man Court of Appeal bench last October and surprisingly Putrajaya did not file a leave application in the Federal Court to appeal the verdict.

Online publisher Mkini Dotcom had applied for a permit under the Printing Presses and Publications Act (PPPA) 1984 to publish a daily named "Malaysiakini" to be sold in the Klang Valley, but the ministry rejected the application in 2010 and the company had challenged that decision.

Judge Datuk Abang Iskandar Abang Hashim, who is now in the Court of Appeal, had ruled that the issuance of a publishing permit was a right guaranteed under Article 10 of the Federal Constitution.

Abang Iskandar said the minister should have given reasons for rejecting Malaysiakini's application as it also breached the right to livelihood and equality.

Following the court ruling, the company had the option to file a fresh application for the minister's consideration.

Lawyer K. Shanmuga said Abang Iskandar's 52-page written ground was very sound and this was unanimously affirmed by the Court of Appeal.

"The government did not take the matter to the Federal Court either. So, the judgment of the High Court is of high authority," he said.

He said the burden placed on the minister now to reject publishing permit was higher and as a public authority, he is required to give good reason why he was not approving the permit.

Another lawyer, Edmund Bon (pic, right), said it would now be interesting to see how a High Court would decide to a challenge mounted by publisher, Edge Communications Sdn Bhd, for a newspaper permit.

The minister had in August last year approved the licence for FZ Daily but deferred permission a week later. The  home ministry also did not respond to a letter seeking reasons why the application was deferred.

The Edge then filed a judicial review against the deferment of the license approval and early this year was granted leave by the High Court in Kuala Lumpur to challenge the decision.

"Based on Abang Iskandar's ruling, the Edge appears to be in a better position to obtain the licence," Bon added.

Bon said the minister, in rejecting Malaysiakini's application, gave the excuse that there would be confusion and the profit margin of other publishers would be affected if Malaysiakini was allowed to run a newspaper.

"The judge obviously did not accept this argument because it was not supported by facts nor evidence," he said.

Bon said Abang Iskandar had also noted  that there was nothing in the PPPA that allowed the minister to regulate the market.

He said publishing permit should be issued and the survival of a publication should be left for the market forces to decide.

Lawyer Aston Paiva  said the court ruling only revealed that every legal power like that of a minister, must have a limit.

"The aggrieved party can now come to court to dissect his decision-making process and he cannot escape from being held accountable," he said.

He said the court could reject the minister's decision if it was based on a flimsy reason.

Paiva said the judge was also spot on in recognising that freedom of expression not only meant that an applicant had to right to get a publishing permit but the right of the public to receive information.

- TMI