This article first appeared in The Edge Financial Daily on August 10, 2017
PUTRAJAYA: The Federal Court yesterday dismissed the government’s appeal against the award of damages to The Edge Communications Sdn Bhd over the suspension of the company’s publishing licence in 2015.
A five-member bench of the apex court, led by Justice Tan Sri Zulkefli Ahmad Makinudin, unanimously ruled that there was no merit in the appeal by the home minister and the ministry’s secretary-general.
“There is no merit in the appeal as there was no appeal by the appellants on [the issue of] liability,” said Justice Zulkefli, who is also the Court of Appeal president.
Justice Zulkefli presided with the Chief Judge of Sabah and Sarawak Justice Tan Sri Richard Malanjum and Federal Court judges Justice Tan Sri Ramly Ali, Justice Tan Sri Justice Zaharah Ibrahim and Justice Datuk Balia Yusof Wahi.
The court ordered damages to be assessed in the High Court. There was no order as to costs.
Lawyer Darryl Goon, who represented The Edge together with Raja Eileen Soraya Raja Aman and Joni Jacqueline Benedict, said a case management would be held with regard to the assessment of damages before a High Court registrar today.
The home ministry had issued a three-month suspension order against The Edge Financial Daily and The Edge Malaysia weekly on July 27, 2015 over their reports relating to troubled state fund 1Malaysia Development Bhd (1MDB). The ministry insisted that the reports were detrimental to public order, national security and national interest.
The Edge applied for a judicial review of the suspension and High Court Judge Datuk Asmabi Mohamad quashed the suspension order on Sept 21, 2015, saying the ministry’s decision breached the rules of natural justice.
Justice Asmabi said the ministry did not comply with procedural fairness as it did not give particulars to The Edge on which reports it was referring to in the show-cause letter it had issued to the company prior to the suspension.
Observing that The Edge had published more than 300 articles related to 1MDB between 2009 and July 2015, Justice Asmabi pointed out that it would be difficult for The Edge to respond to the ministry’s letter within the one week granted.
On Aug 30 last year, the Court of Appeal upheld the High Court’s finding of liability and allowed The Edge to claim damages.
In the appellate court, Goon had argued that the suspension order was a misfeasance in public office, or wrongful exercise of lawful authority.
He submitted that the government had breached Section 7 (1) of the Printing Presses and Publication Act 1984 (PPPA) and The Edge was not given the right to be heard.
Senior federal counsel Alice Loke Yee Ching argued that allowing damages for misfeasance in public office may lead to an opening of floodgates for cases of the same nature to be filed.
Goon, however, submitted that the court has the power to enforce rights enshrined in the constitution, and that the issue in the case is regarding the breach of fundamental rights resulting in damages.
In January this year, the Federal Court granted leave to the home ministry to raise three legal questions over the award of damages to The Edge.
The Edge Media Group chief executive officer and publisher Ho Kay Tat, responding to yesterday’s decision of the Federal Court said: “After a two-year judicial process, this is vindication of our work in reporting what had happened at 1MDB. We reported the truth and we were wrongly suspended for our work.
“This decision is a victory for all news media and journalists and not just for us at The Edge. It shows that we should not fear about reporting the truth, because in the end truth will prevail even if the process of getting to the truth is a painful one,” Ho said.