The granting of a publishing permit is a privilege and not a right of the parties, the government argued in the Court of Appeal today in opposing Malaysiakini website operator Mkini Dotcom Sdn Bhd's bid to be issued with a publishing permit.

NONESenior federal counsel Norhisham Ismail (right) said the Kuala Lumpur High court judge had erred in ruling that the granting of a publishing permit is a right under Article 10 of the federal constitution on freedom of expression.

"In arguing on the grounds of illegality of the home minister's decision, it is not a right as you have to apply first to get the permit.

"A distinction has to be made between an application and the revocation of a permit.

"Unfortunately, the learned High Court judge did not differentiate this position," said Norhisham, referring to the difference between the application for a newspaper permit and the revocation of that permit by the minister.

Besides this, he said, there was procedural impropriety in the judge's decision in ruling that the minister must state his reasons in rejecting Mkini Dotcom's application.

No reason given for permit refusal

In not granting the permit, the home minister did not give reasons but only did so by way of an affidavit, after Mkini Dotcom filed an application for judicial review.

The Home Ministry secretary-general and government are appealing the High Court's quashing of the minister's decision not to issue a permit to the online news operator.

Following his decision, High Court judge Abang Iskandar Abang Hashim told Mkini Dotcom to apply again for a publishing permit.

The judge, who was elevated to the Court of Appeal last month, also said the non-granting of the publication permit violates freedom of expression.

NONEThe government's appeal is being heard before a three-member panel headed by Justice Alizatul Khair Othman.

The other two judges are Justice Anantham Kasinather and Justice Varughese George.

Norhisham said the High Court judge may have not considered the reasons given by the minister in the affidavit, which included a need to control the publication of newspapers as there were a lot in the market.

The minister in his affidavit, the senior federal counsel said, also gave reasons why the ministry is not allowing the permit. The minister, he noted, stated that Malaysiakini.com tended to highlight sensitive and controversial news through its website.

“The website publishes per se sentiments and controversial issues,” said Norhisham.

However, Justice Alizatul said no security grounds were cited as the reasons in rejecting the application.

Norhisham submitted that the Home Ministry has called Malaysiakini representatives to explain  its decision but they failed to turn up and instead filed the judicial review application.

He further submitted that there was unreasonableness in the High Court judge's decision because in a judicial review application, the court should not go into the merits of the minister's decision.

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