Friday, 11 May 2012

Decision not to give permit to Mkini 'unconstitutional'

The decision by the Home Ministry not to give a publishing permit to Mkini Dotcom Sdn Bhd to publish its news in the form of a newspaper is unconstitutional as it violates freedom of expression and is also against the laws of natural justice.

Lawyer K Shanmuga, who appeared for Mkini Dotcom, the owners of news portal Malaysiakini, submitted to the Kuala Lumpur High 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 regarding equality before the law.

He said there was nothing wrong in giving a permit to the news portal, which had won numerous awards internationally and locally, as it is not considered a threat to the nation.

“The decision by the secretary-general of the Home Ministry to reject giving a permit is also a restriction over the freedom of the press, which has long been recognised by the common law as a breach of the protection of free speech.

“It also violates the freedom of expression of the journalists working in Malaysiakini as they had collectively won numerous awards. A judgment in India said the newspaper industry enjoys two of the fundamental rights - namely freedom of speech and expression,” submitted Shanmuga.

Also appearing with Shanmuga are lawyers Edmund Bon and Aston Paiva.

NONEMkini Dotcom has applied for a judicial review after its application for a publishing permit under Section 6(1)(a) of the Printing Presses and Publications Act 1984 through its chief executive officer Premesh Chandran (right) was not considered by the Home Ministry in a letter dated Aug 19, 2010.

The company said the newspaper would be distributed in the Klang valley with a circulation of 40,000 at RM1 each and would report on current events including political issues, freely and independently.

Premesh submitted the application for a permit on behalf of Mkini Dotcom on April 14, 2010.

Shanmuga: Present newspapers significantly owned by BN
It claimed that the ministry’s decision not to give a permit was irrational and without logic as the applicant as a media company had won numerous international awards and accolades without a single prosecution instituted against it.

“Hence it is not in any way a threat to public order, security or morality,” said Shanmuga.

Shanmuga in his submission further said present newspapers like Utusan Malaysia and New Straits Times Press (M) Bhd are significantly owned by the Barisan Nasional which forms the federal government.

“It is said that Umno which is the main partner in BN owns more than 40 percent of shares in Utusan Malaysia and also NSTP. This was disclosed during a proposal to unify Utusan Malaysia and the NSTP papers,” he said.

“The Home Ministry has also granted a newspaper permit to a non-governmental organisation, Pertubuhan Pribumi Perkasa Malaysia (Perkasa), as it allowed the publication of Suara Perkasa which is supportive of the minister’s party (Umno) and the Malaysian government’s policies, despite Perkasa bearing racial prejudices and inciting intolerance, it has not been reprimanded,” said Shanmuga.

Shanmuga said in this case the deputy home minister did not give any reason for the decision to not grant a permit and the decision affects Mkini Dotcom’s and its employees’ constitutional right to speech and expression.

“Hence, the court should quash the minister’s decision as it lacks procedural fairness and violates the laws of natural justice,” he said.

He further submitted that when public authorities are called upon to make decisions affecting fundamental liberties of citizens, it must act fairly, and afford reasons for their decisions.

“The decision has an impact on public life as it would result in a stifling of the nation’s public debate, restriction to the free flow of information and ideas to citizens, a stultifying of the Malaysian democratic framework and a monopoly of control of information and ideas in the country.”

Following this, Shanmuga said the company has applied for the judicial review application.

Senior federal counsel Norhisham Ismail said he will make his submission on three points - namely a permit is not an automatic right but a result of privilege by the government, the constitutional challenge was not proper and there was logical reasoning to the decision.

However, High Court judge Abang Iskandar Abang Hashim asked Norhisham to submit further on May 24 as time was approaching for Friday prayers.

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