PUTRAJAYA (Aug 30): The Court of Appeal has dismissed the government's appeal and ordered the Home Ministry to pay damages to The Edge Communications Sdn Bhd (The Edge) for the suspension of its business daily and weekly publications last year.
The appellate court's three-man panel, led by Justice Datuk Mohd Zawawi Salleh, said the panel has reached a unanimous decision in dismissing the government's appeal against the High Court's award of damages to be assessed to The Edge over the suspension of The Edge Financial Daily and The Edge Weekly.
The appeal was made after High Court Judge Datuk Asmabi Mohamad, on Sept 21 last year, in allowing a judicial review application filed by The Edge on the legality of the suspension order on July 27, cancelled the Home Ministry's suspension of the two publications and ordered for damages to be assessed.
"We have reached a unanimous decision. We have to dismiss the appeal. The issue before us is damages, and the threshold has been passed under Order 53 Rule 5 of the Rules of Court to claim for damages. The order of the High Court is correct. No order is made as to costs," said Zawawi.
Order 53, Rule 5, deals with the requirements in relation to the award of damages by way of judicial review.
The parties will now have to go back to the High Court for the assessment of damages.
Lawyer Darryl Goon, representing The Edge, submitted earlier that the suspension order issued by the home minister and the ministry's secretary-general was a misfeasance or wrongful exercise of lawful authority.
Specifically, the suspension order showed "reckless indifference" on their parts, said Goon, adding that the order was also an infringement of constitutional rights and the freedom of speech and expression.
In arguing for the award of constitutional damages, Goon also cited the case of inspector general of police Tan Sri Khalid Abu Bakar's case vs the administrator of the estate and dependent of A. Kugan, who died in police custody in 2009, on the right to constitutional damages.
The Court of Appeal had ordered the government to pay Kugan's estates RM300,000 in damages.
In response, senior federal counsel Alice Loke Yee Chin, representing the government, said the appeal to the Federal Court on the case is now pending a decision and the decision of the Court of Appeal is not the final word on the issue.
She also argued that the public officers had acted within their scope of power, as accorded under the Printing Presses and Publications Act (PPPA).
She also submitted that the tort of misfeasance in public office is essentially the wrongful and dishonest abuse of power to injure another person, or targeted malice – of which there was no proof in this case.
"The suspension of the respondent's publication was a decision which was well within the discretion and power of the minister and Section 6(2) of the Act 301 (PPPA) allows him to do so," she asserted.
Following the appellate court's decision today, Loke said she will await her orders as to the next course of action, but noted that the Home Ministry is likely to appeal.
Prior to the hearing and dismissal of the appeal against the award of damages to The Edge, the Court of Appeal said the issue of the validity of the Home Ministry's three-month suspension of The Edge Weekly and The Edge Financial Daily is academic, as the suspension period has already lapsed.
The suspension period began on July 27 last year and lapsed on Oct 27.
"The suspension period has lapsed. This court should not be burdened by this academic matter," said Zawawi, adding the court would not be expressing its opinion on the matter.
Loke argued earlier that the validity of the suspension was still a live issue as it pertained to damages that the respondent could claim for.
But she later conceded that it was an academic matter after Zawawi noted that "whether the court proceeded with the suspension or not, the issue of damages still stands".