KUALA LUMPUR, March 8 — The High Court in Kota Kinabalu today ordered the Malaysian government to declassify the federal investigation report on the June 6, 1976 plane crash that killed then Sabah chief minister Tun Fuad Stephens and 10 others onboard.
High Court judge Datuk Christopher Chin Soo Yin, who delivered the decision, issued a mandamus order directing the Malaysian government to take the necessary steps to declassify or make public the Malaysian authorities’ investigation report into so-called “Double Six Tragedy” involving the Nomad Aircraft 9M-ATZ with 11 people onboard.
In the same court order, the judge also gave the Malaysian government three months or until June 8 to comply.
The judge also said that if such public disclosure of the investigation report requires any related action by the Australian government, the Malaysian government must immediately ensure Canberra acted accordingly to allow the declassification to be done promptly.
"And to the extent that if such disclosure requires, by treaty or otherwise, concomitant action by the Australian Government, that the Respondents do take immediate steps to procure such action, to facilitate the prompt de-classification ordered," the judge said in the broad grounds of his judgment.
The judge was ruling in a lawsuit filed by former Sabah chief minister Tan Sri Harris Mohd Salleh, and decided in his favour.
The judge gave no order as to costs.
Sabahans have the right to know the investigation into the 'Double Six Tragedy'
When contacted by Malay Mail, Harris’s lawyer Datuk Malik Imtiaz Sarwar highlighted the importance of the High Court’s decision today as it noted that the government’s powers under the Official Secrets Act (OSA) to classify information is not absolute and the Federal Constitution was still above it.
“This decision is significant as it underscores the right of citizens to access information that is in the public interest, as this is essential to ensuring accountability, and the legitimacy of representative government.
“The decision of the court is ground-breaking in that it deals with the power and duty to classify and declassify information under the OSA. Importantly, despite arguments to the contrary by the government, the court concluded that this power is not absolute, as the Executive is bound to comply with the Constitution,” Imtiaz told Malay Mail.
Imtiaz noted that the High Court today had said that freedom of expression results in the right to information, and noted the decision now showed that the government has to declassify information when secrecy is no longer required.
“In particular, the court emphasised that the right to receive information is corollary to the freedom of expression, which is fundamental to democracy. This is welcome and puts paid to the notion that people are only entitled to know what the government wants them to.
“It is now clear that the government can only use the OSA where there is justifiable need to, and it can only do so in a manner that is proportionate. The government is also under a duty to declassify where, objectively, there is no longer a need for secrecy.
“The court ultimately found that Harris Salleh, and the people of Sabah, are entitled to know the results of the investigation into the tragedy,” Imtiaz said.
The other lawyers who appeared for Harris today are Datuk Alexander Decena and Jordan Kong.
When contacted by Malay Mail, senior federal counsel Shamsul Bolhassan who appeared for the government, confirmed that it has yet to decide whether to appeal against today’s High Court decision.
Federal counsels Noor Atiqah Zainal Abidin and Ng Wee Li also appeared for the government today.
On July 1, 2022, Harris had filed the lawsuit through a judicial review application, naming the chief secretary of the government of Malaysia, the transport minister, and the government of Malaysia as respondents. Harris had sought for a court order to direct the government to declassify the report, as well as any other order that the court deems appropriate.
Previously on August 8, High Court judge Wong Siong Tung had granted leave for the judicial review application, which meant the High Court would proceed to hear the court case on its merits.
After hearing arguments today from lawyers from both sides on the merits of the case, Judge Chin then delivered the decision on the case on the same day itself.
Here's the facts of the case and what the judge decided today
In his broad grounds of judgment, Judge Chin outlined the facts of the case, noting that the 1976 plane crash on its way from Labuan to Kota Kinabalu left an indelible mark on Sabahans and Sabah's history, with the crash victims including Tun Fuad Stephens who was "Huguan Siou" or the paramount chief of the Kadazandusun community and several Sabah state Cabinet members.
Following the plane crash near the runway at Kota Kinabalu airport, Harris who was the deputy chief minister of Sabah was later appointed as the chief minister.
The Malaysian government carried out an investigation with its team including the Department of Civil Aviation, the Royal Malaysian Air Force, the Royal Malaysian Police.
The Australian government also carried out a separate investigation as the aircraft was manufactured by the Government Aircraft Factory of Australia and to fulfill the requirements of an international convention on investigations of aircraft accidents, with the Australian team including the manufacturer and the Australian Department of Transport.
Although both Malaysia and Australia completed the investigations and prepared investigation reports, these reports have never been released or made public, even though politicians, victims' families and the public had pushed for declassification, the judge noted.
The judge highlighted comments in the Dewan Rakyat by the deputy communications minister on October 28, 1976 and by the deputy transport minister on December 15, 2009 that the crash was due to the plane exceeding its maximum load.
Even now, the judge noted the Double Six Tragedy is still widely reported and was the subject of an investigative documentary, noting that the mystery of the crash remains a burning issue among Sabahans and the lack of closure was shown through multiple news reports pushing for the findings' disclosure.
"The Double Six crash is to Sabah, what the MH370 missing MAS Boeing 777 is to the world, and particularly to the aviation industry," the judge said.
In the High Court's findings today, the judge said the legality of the OSA is not the issue, and recognised that the minister has the right to decide whether to classify and to declassify a document.
The judge also said that the minister understandably need not provide reasons when deciding to classify information as it could compromise the national security status which he is seeking to protect by classifying information.
The judge noted Harris's lawyers' arguments including the right to information and that the minister would also have a duty to declassify information since he is given powers to declassify under the OSA, and also noted the government's "equally compelling" arguments that the OSA does not require the minister to provide reasons for decisions to classify and declassify documents.
Faced with such arguments, the judge turned to the test of legitimacy, and said the transport minister has the rights under the OSA to not declassify, but said such decisions not to declassify would result in the diminishing of his legitimacy as the people's representative in the government and would prejudice the legitimacy of the government which the minister serves.
Referring specifically to the "Double Six Tragedy" investigation report, the judge said: "Clearly, in this case, given the lapse of 47 years and the events that have transpired in Parliament, the power to classify the document is not in proportion to the purpose or objective to maintain such classification in 2023 but only, I hasten to add, within the context of this case."
After applying the test of legitimacy, the judge said the case is in Harris's favour.
Ultimately, the judge concluded that the right to information is a "corollary" or results from the right to free speech and Sabahans have the right to know the conclusions of the investigation, noting that the infringement of a right must be proportionate to the need to infringe such rights especially when 47 years have passed since the crash.
The judge noted that the public has a right to demand justice if the Double Six report discloses some wrongdoing as no one is above the law, suggesting that the minister would lose his credibility and legitimacy if he is perceived as using his discretion to shield any wrongdoer from the force of law and further noted that any minister's credibility would reflect directly on the government he serves.
The judge also said the executive branch of the Malaysian government owes a duty to the international and local aviation industry to "disclose the outcome of the investigation so that air travel can be made safer, as has been done in all other cases of commercial plane crashes".
The judge said that the OSA's Section 2C giving of powers to the minister to declassify information would mean that a duty to declassify arises when the reasons to justify keeping the information classified or secret has waned, also noting that the minister was not shown to have reasonably exercised the decision not to declassify the Double Six Tragedy investigation.
The judge noted Harris — as a Sabahan, then Sabah deputy chief minister, elected assemblyman and a member of Sabah's Cabinet then — was personally and directly affected by the government's decision to not declassify the Double Six Tragedy report.
"The victims in the crash are leaders in their respective communities and are mostly elected assemblymen. The families of the victims, like the families of MH370 need closure," the judge said.
"The continued suppression of the Double Six report does not enhance but rather lowers the sense of legitimacy of the executive in the eyes of the populace particularly in Sabah," the judge said, adding that it is clearly in the public interest for the government to declassify the investigation report.
After having made such conclusions, the judge then gave the court order to declassify.