KUALA LUMPUR, July 19 — The High Court today allowed the missing activist Amri Che Mat’s wife to continue to pursue her bid to have the Malaysian government declassify a special task force’s report on his 2016 disappearance and to give it to her.
In this case, the wife Norhayati Mohd Ariffin was seeking to cancel the government’s decision to classify the task force report as an official secret under the Official Secrets Act 1972 (OSA).
Lawyer Surendra Ananth confirmed to Malay Mail that High Court judge Datuk Wan Ahmad Farid Wan Salleh granted leave for judicial review to Norhayati, via a decision delivered through Zoom this morning.
Surendra said the judge had in granting leave decided that the wife is adversely affected and has an arguable case, and had also noted that the classifying of the report under OSA had put a pause to her quest for justice on what she genuinely believed to be the abduction of her husband.
Surendra added that the judge said it was genuine “because her belief was based on the findings of Suhakam based on an inquiry it conducted”.
Surendra said the Attorney-General’s Chambers’ (AGC) objection was that Norhayati’s bid to remove the OSA classification on the task force’s report was an abuse of process, as the AGC argued that she should have pursued it in her separate discovery application instead.
But the lawyer said the High Court had dismissed the objection as: “The judge overruled this objection on the basis that the decision of the first respondent to classify the report as an official secret had sufficient public law element as it was based on a statutory provision.” The first respondent refers to Home Ministry officer Mohd Russaini Idrus.
Following the High Court’s decision today, this means that the High Court will proceed to hear Norhayati’s bid to declassify the task force’s report.
Surendra confirmed that no hearing dates have been set yet for Norhayati’s judicial review application to have the task force’s report declassified.
What led to the court case
Following Amri’s disappearance on November 24, 2016 around midnight, the Human Rights Commission of Malaysia (Suhakam) had on March 6, 2019 completed its inquiry and had on April 3, 2019 issued its report on its findings.
Based on the available evidence, Suhakam concluded that it was more probable than not that there was an enforced abduction of Amri by the police’s special branch unit and that the police had failed to effectively investigate this.
The home minister on May 23, 2019 then announced the government’s decision to set up a special task force to investigate Suhakam’s findings on Amri’s disappearance, while Norhayati on November 18, 2019 filed a civil lawsuit against the Malaysian government and police officers over the failure to effectively investigate Amri’s abduction.
While Suhakam had in December 2019 said it was still waiting for the task force’s report which it was told would have been done by then, the home minister in January 2020 said the task force’s report would be ready in a month and submitted to him.
But when Suhakam in August 2020 asked the Malaysian government to publicly disclose the task force’s report, there was no public response from the Malaysian government to this request, Norhayati had said in court papers.
As part of her civil lawsuit where she had sued the police and the government, Norhayati on May 25, 2021 filed a discovery application in court to ask for the task force’s report to be disclosed to her.
It was only during her pursuing of the discovery application that Norhayati found out that the task force’s report had been classified as an “official secret” under the OSA.
This is based on Mohd Russaini’s affidavit in reply to the discovery application, where the officer did not say why the task force’s report had been classified as an official secret. The officer asserted that it would be against “national interest” if the task force’s report was to be disclosed to the public, and had also provided a document which showed the task force as having been classified as “Sulit” or confidential.
Norhayati then subsequently withdrew the discovery application, and instead filed this judicial review application — which the High Court granted leave today — to seek for the removal of the “official secret” classification on the task force’s report.
As for the civil lawsuit where Norhayati had sued 21 defendants including 17 individuals, the police, the inspector-general of police, the home minister and the Malaysian government for compensation, Surendra confirmed that the case will be heard in the High Court on June 19 to June 22 next year. The High Court judge hearing the case will be Datuk Ahmad Bache.
What she is seeking
In the December 9, 2021 lawsuit filed by Norhayati through a judicial review application, she had named the special task force’s secretary and secretary of the Home Ministry’s Police Force Commission Mohd Russaini Idrus and the Malaysian government as the two respondents.
In the lawsuit, Norhayati sought for several court orders, including a declaration that the report by the Malaysian government’s special task force — which was set up to investigate Suhakam’s 2019 findings — does not fall within the definition of an “official secret” under the OSA’s Section 2.
She is also seeking a court order to quash Mohd Russaini’s decision to treat the task force’s report as an “official secret” under OSA, and a court order to compel the Malaysian government to release, provide or disclose the task force’s report to her within seven days from the date of the court order.
She is also seeking a declaration that the Schedule to the OSA is unconstitutional and null and void, and a declaration that the phrase “any document specified in the Schedule and any information and material relating thereto” — in the definition of “official secret” under the OSA’s Section 2 and Section 2A — is unconstitutional and null and void.
Under the OSA, Section 2 defines “official secret” as including “any document specified in the Schedule and any information and material relating thereto”, and also any other official document which a minister or an appointed public officer appointed under Section 2B may classify as “top secret”, “secret”, “confidential” or “restricted”.
Under the OSA, there are two methods for documents to be classified as an official secret, namely under the Schedule as listed in Section 2A and through the Section 2B method.
The Schedule in Section 2A lists “Cabinet documents, records of decisions and deliberations including those of Cabinet committees; State Executive Council documents, records of decisions and deliberations including those of State Executive Council committees; Documents concerning national security, defence and international relations”.
As Mohd Russaini did not say he is a public officer appointed under Section 2B and did not provide any certificate under Section 16A to show he had classified the document as an official secret via Section 2B, Norhayati believed that the task force’s report had been made an official secret via the Schedule in Section 2A and is seeking to challenge the OSA provisions that are preventing her from viewing the report.
