It is a Right, Not a Privilege, So What Now?

By Kee Thuan Chye
1.11.2013

All Malaysiakini asked for was publish a daily newspaper in English of 40,000 copies to be sold only in the Klang Valley. But this was not acceptable to the Home Ministry, which rejected its application in August 2010. Why? What was the Government afraid of?

Sure, as an online news website, Malaysiakini had distinguished itself as a provider of news that the mainstream media often hid from the public for fear of offending the Government, and it had won tremendous support from truth-starved Malaysians who wanted to get “the other side of the story”, the side that exposed the Government’s shenanigans and deceptions. But the number of copies it was asking for its print version was relatively low, and with its distribution restricted to the Klang Valley, where there is a concentration of supporters of the Opposition, the newspaper would be mostly preaching to the converted anyway.

Besides, it was entering a market in which English-language newspapers owned by ruling Barisan Nasional (BN) component parties, like The Star and New Straits Times, were already long entrenched and wielding considerable influence on their readers.

In any case, the Home Ministry did not give any grounds for rejecting Malaysiakini’s application. But when Malaysiakini brought the case to the High Court for a judicial review, the Minister had to state his reasons in an affidavit.

The case was heard in October 2012. The Government’s lawyer submitted that the granting of a publication permit was a privilege, not a right. But the judge disagreed.

Justice Abang Iskandar Abang Hashim said freedom of expression was a right guaranteed in Article 10 of the Federal Constitution. And this right included the right to publish a newspaper. He ruled that the ministry’s decision was “improper and irrational”.

He also considered the minister’s reasons for rejecting Malaysiakini’s application as stated in his affidavit. One of them stupidly stated that it was because there were already a lot of newspapers in the market and Malaysiakini’s entry would affect their profit margin.

The judge rightly pointed out that there was nothing in the Printing Presses and Publications Act (PPPA) that gave the minister power to regulate the market.

But of course! How could it be the job of the Home Minister to ensure that the profit margin of newspaper companies would not be affected?

Was the minister particularly concerned in this case because the newspapers were owned by BN parties, afraid that Malaysiakini might provide competition and affect their sales and therefore their profits? However you look at it, there was no cause for him to be involved in that aspect.

So the case ended with the minister and his ministry getting egg on their faces. Plus the judge quashed the ministry’s refusal to grant the permit and asked Malaysiakini to reapply.

But the ministry was not satisfied. It decided to appeal the decision. The appeal was heard last Wednesday.

The Government’s lawyer maintained that the granting of a publishing permit was a privilege, not a right, “as you have to apply first to get the permit”. He also said the High Court judge might not have considered the reasons given by the minister in the affidavit.

He mentioned the one about there being already a lot of newspapers in the market and therefore the need for control. But this was not a bright move. The High Court judge had already dismissed that reason as being invalid. Why bring it up again?

The lawyer also mentioned the reason the minister had given about Malaysiakini’s tendency to highlight sensitive and controversial news on its website. That didn’t seem like a bright move either. Because Court of Appeal judge Alizatul Khair Othman retorted that security grounds had not been cited as a reason in rejecting the application. So where’s the relevance?

In the end, the Government’s lawyer must have failed to convince the three judges. They unanimously upheld the High Court’s decision and dismissed the Government’s appeal. And of course, Malaysiakini can re-submit its application.

It is highly important to consider that the Court of Appeal agrees with the High Court judge. It is important because this reaffirms the dictum that publishing a newspaper is a right, not a privilege, contrary to the Government’s thinking.

In acknowledging that, where do we go from here?

Logically, the PPPA should be made null and void. It should be repealed. Because the PPPA gives the Home Minister the power to grant and revoke publishing permits. But this, as our learned judges have pointed out, is not consonant with the right to freedom of speech, which includes the freedom to publish a newspaper, guaranteed in the Federal Constitution. Since citizens have the right to publish a newspaper, there should be no need to apply for a permit.

As long as the minister enjoys the power to grant permits, he will construe that publishing a newspaper is a privilege, not a right. To dispel that and return to the people a right that is duly theirs, the Government should take the appropriate action. Over the years, many have been the calls made for the repeal of the PPPA because the Act threatens newspaper publishers and editors with potential suspension or revocation of their publishing permit. The Government should act on those calls now to prove that it is serious about openness and transparency, about achieving transformation.

But will the Government do that? When of late, we have seen it take regressive measures, like amending the Crime Prevention Act to bring back detention without trial and amending the Penal Code to gag civil servants?

It would be much easier to ask whether the Government should appeal the Court of Appeal decision on the Malaysiakini case.

Well, this could mean the Government’s lawyer would try to persuade a new panel of judges to accept the Home Minister’s reasons which two other courts have already rejected. More significantly, it would mean asking the Federal Court to interpret the freedom of expression guaranteed in the Federal Constitution differently. Would it?

At any rate, it would be petty to appeal, not to mention a waste of public funds. Allowing Malaysiakini to publish a newspaper is, after all, not a big national issue. But then, the Government has shown itself to be petty on many occasions. So we shouldn’t be surprised if it decides to stay consistent.

Besides, the current minister, Ahmad Zahid Hamidi, has some issues with Malaysiakini, especially after it published an exclusive report on Oct 7 exposing what he had said at a supposedly closed-door event during which he allegedly said several atrocious things, like threatening to shut down newspapers, encouraging the police to shoot first and ask questions later in order to protect “our Malays”, and calling the underworld group Tiga Line his friends and telling them to carry on doing what they must do.

So let’s see what he will do.

* Kee Thuan Chye is the author of the new book The Elections Bullshit, now available in bookstores.