The Home Ministry and its secretary-general will have to pay damages for the suspension order issued against The Edge Communications Sdn Bhd from July 27 to Sept 21, 2015, over a series of reports on 1MDB.

This follows the unanimous ruling by a five-member bench of the Federal Court led by Justice Zulkefli Ahmad Makinudin, which dismissed the ministry's appeal today.

"There is no merit in the appeal as there was no appeal by the appellants (Home Ministry and its secretary-general) on liability (in this issue)," said Justice Zulkefli, who is also the Court of Appeal president.

He also said they were not going to answer the three questions posed to the court regarding the appeal.

The panel also made no order as to costs.

The other judges on the bench were Chief Judge of Sabah and Sarawak Justice Richard Malanjum, and Federal Court judges Justice Ramly Ali, Justice Zaharah Ibrahim and Justice Balia Yusof Wahi.

It is understood that the damages for the losses suffered by The Edge during their suspension period could be a substantial amount.

The damages will now be assessed by the High Court in Kuala Lumpur, which has fixed tomorrow for case management.

It was reported that The Edge, which operates The Edge Financial Daily and The Edge Weekly, was initially ordered by the Home Ministry to suspend both publications for a period of three months.

However, the suspension was lifted after less than two months following a High Court order which quashed the suspension.

The Edge was represented by lawyers Darryl Goon and Raja Eileen Soraya Raja Aman, while senior federal counsel Alice Loke appeared for the Home Ministry.

On Jan 25, a three-member bench of the Federal Court led by Justice Zulkefli had allowed for three questions of law to be posed before the court after Raja Eileen, who was representing The Edge, did not oppose them:

  • 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 certiorari to quash the decision of the public officer; and
     

  • Whether an order for assessment of damages for breach of a constitutional right can be made upon the granting of an order of certiorari (to quash a decision).

An order of certiorari is a formal order to the lower court to deliver its record of the case for review.

Claiming for constitutional damages

Following the suspension, The Edge 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.

It was reported that the then High Court judge, Justice Asmabi Mohamad, had on Sept 21, 2015, quashed the ministry's suspension order when she ruled that the order was full of illegalities and irrationalities, and breached the rules of natural justice.

Justice Asmabi said the ministry did not furnish particulars to The Edge on which articles they were referring to in the show-cause letter it had issued in early July 2015. The Edge had been given a week to respond to the ministry.

Since the particulars were unclear, the High Court judge said it was difficult for the applicants to respond to the letter, in light of the more than 300 articles related to 1MDB published by The Edge between 2009 and July 2015.

Hence, the ministry's decision to issue a suspension order could be seen as a violation of the rules of natural justice.

In August 2016, the Court of Appeal ordered the Home Ministry to pay damages to The Edge after dismissing its appeal.

Goon, in his submission today said The Edge was entitled to damages, citing a case authority which previously ruled that damages can be awarded for “reckless indifference” and misfeasance in public office.

The Home Ministry, he added, had acted against the law when issuing the show-cause letter.  

Goon argued that the home minister should have at least inquired as to why the suspension order was issued.

“The failure (of the minister) to inquire in the face of an express requirement showed the recklessness (of the ministry's order),” Goon said.

Loke, however, told the court that there was no malice in the suspension order and that by granting damages for misfeasance in public office, the court could open the floodgates for other similar cases to be filed.