The Federal Court today granted the Home Ministry leave to pose questions of law over the award of damages to The Edge Communications Sdn Bhd following a suspension the financial daily had to serve for almost three months over its reports on 1MDB.

This was after The Edge's lawyer Raja Eileen Soraya Raja Aman did not oppose the three questions of law proposed by the Attorney-General's Chambers. The AG's Chambers was represented by senior federal counsel Alice Loke, who appeared for the minister and the secretary-general of the ministry.

Raja Eileen told the court there is no question on the liability (of the respondents).

“We are not opposing the application (for leave),” she told the three-member bench led by Chief Judge of Malaya Justice Zulkefli Ahmad Makinudin. The other judges were Federal Court Justice Zaharah Ibrahim and Justice Balia Yusof Wahi.

Earlier, Loke told the court that there were four questions of law posed but parties agreed to drop the first one.

As a result Justice Zulkefli granted leave for the Home Ministry's appeal over the damages following the suspension of the financial daily be heard on its merits.

In civil cases at the Federal Court, it is not automatic for an appeal to be heard as leave (permission) had to be gained first for it to be heard on its full merits.

The three questions of law are:-

  • Whether an order for assessment of damages claimed under Order 53 (5) of the Rules of Court 2012, is subject to a threshold test?
  • Whether an order for assessment of damages for the tort of misfeasance in public office can be made upon the granting of an order of certiorori to quash the decision of the public officer?
  • Whether an order for assessment of damages for breach of constitutional right can be made upon the granting of an order of certiorori (to quash a decision)?

Court of Appeal and High Court ordered damages

It was reported on Aug 30, last year, that a three-member bench led by Justice Mohd Zawawi Mohd Salleh had ordered the Home Minister and the ministry's secretary-general to pay damages for the suspension order issued against The Edge from July 23 to Sept 21, 2015.

This followed a suspension order issued by the minister following a series of articles published by the The Edge Weekly and The Edge Financial Daily over Malaysia's troubled sovereign state fund 1MDB, where it ruled that damages can be awarded based on Order 53(5) of the Rules of Court.

The publication is claiming for misfeasance in public office and constitutional damages, leading to a violation of the media's rights to freedom of speech and expression under Article 10 of the Federal Constitution where the appellate court ordered that damages is to be assessed by the High Court.

Loke had previously submitted at the Court of Appeal that the awarding of damages for a judicial review proceeding would open floodgates.

The High Court had also ordered that damages be assessed by the High Court registrar, after Justice Asmabi Mohamad (now Court of Appeal judge) quashed the ministry's suspension order when she ruled the minister and ministry's decision to suspend the publication was full of illegalities and irrationalities and breached the rules of natural justice.

She ruled that the ministry did not furnish particulars to The Edge on which articles they were referring to in the show-cause letter issued in early July 2015, with the publication given seven days to reply.

Since the particulars were not clear, the High Court judge said it was difficult for the applicants to respond to the letter and hence the decision to suspend could be seen as a violation of the rules of natural justice.

There were 300 articles published by the The Edge on 1MDB since 2009 till before the suspension order was issued.