‘Make crash report public’ order
Published on: Thursday, March 09, 2023
By: Cynthia D Baga
The court ordered the respondents namely, Chief Secretary to the Government, Minister of Transport and the Government of Malaysia to take the necessary steps to declassify and/or make public the investigation report before or by June 8 this year.
Kota Kinabalu: The High Court here ordered the investigation report by Malaysian authorities into the crash of the Double Six Nomad Aircraft 9M-ATZ on June 6, 1976, to be declassified and made public within three months.High Court Judge Datuk Christopher Chin Soo Yin made the Mandamus order, Wednesday, during the ruling of the Judicial Review filed by former Chief Minister Tan Sri Harris Mohd Salleh to declassify Malaysian authorities’ investigation report on the Double Six Nomad plane crash in 1976.ADVERTISEMENT
The court ordered the respondents namely, Chief Secretary to the Government, Minister of Transport and the Government of Malaysia to take the necessary steps to declassify and/or make public the investigation report before or by June 8 this year.
And to the extent that 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 court said given the unique nature of this case, this was essentially not a contentious matter and there was no order as to cost.
In its finding, the court among others said the right to information is a corollary of the right to free speech. Coupled with this is the right of Sabahans to know the conclusions from the plane crash investigation, the doctrine of proportionality in that the objective sought from the infringement of a right must be in proportion to the need to infringe, especially after a lapse of 47 years.ADVERTISEMENT
“The executive owes a duty to the aviation industry particularly in Malaysia 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 applicant (Harris) has been personally and directly affected by the non-de-classification of the Double Six report, the victims in the crash were leaders in their respective communities and were mostly elected assemblymen.ADVERTISEMENT
“The families of the victims, like the families of MH370 need closure, the Minister's decision not to de-classify is not exhibited to have been reasonably exercised, 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.
“It is, therefore, clearly in the public interest for the Double Six report to be de-classified and given that section 2C of the OSA confers on the Minister the power to de-classify, it is axiomatic that a consequential duty to de-classify arises when the circumstances justifying the classification in the first place has waned,” said Chin in his ruling.
Among the key facts and the main arguments that shaped the final decision by the court were as follows:
- The applicant (Harris), the former Chief Minister of Sabah, Malaysia, is principally seeking through Judicial Review under Order 53 Rules of Court 2012, the following reliefs:- (a) An order of Mandamus directing the Respondents to take the necessary steps to declassify and/or make public the investigation report by Malaysian authorities into the crash of Nomad Aircraft 9M-ATZ Crash on June 6, 1976 at Kota Kinabalu, Sabah; and (b) Any further and/or other order this Honourable Court deems fit and/or otherwise appropriate.
- The crash of the Nomad very near the approach of the runway at Kota Kinabalu on the June 6, 1976 (Double Six) is one of those incidents where every Sabahan who were adults at that time can remember exactly where they were and what they were doing.
- The Double Six incident left an indelible mark on the people and history of Sabah. Among the victims were senior cabinet members, including then Chief Minister Tun Fuad Stephens, who was also the paramount chief or “Huguan Siou” of the Kadazan Dusun indigenous group in the State.
- Leave under Order 53 was granted by my predecessor, His Lordship Wong Siong Tung on the Aug 8, 2022 who also denied any stay sought by the respondents pending their appeal to the Court of Appeal against the decision to grant leave.
- On June 6, 1976, the Nomad Aircraft 9M-ATZ manufactured by the Government Aircraft Factory of Australia (“GAF”), crashed on its way from Labuan to Kota Kinabalu. The tragedy killed 11 persons, including the then Chief Minister of the Sabah State Government, Tun Fuad Stephens and several other state ministers. As a result of the death of Fuad, Harris who was then the Deputy Chief Minister was appointed as Chief Minister and separate investigations were carried out by the third respondent and the Government of Australia.
- The Malaysian investigation team was led by Col Osman Saman, consisting of officers from the Department of Civil Aviation, the Royal Malaysian Air Force, the Royal Malaysian Police and other associated departments.
- The Australian investigation, prompted by the Australian connection described above and the requirements of Annex 13 – Aircraft 2 Accident and Incident Investigation, Convention on International Civil Aviation (the “Chicago Convention”), involved a team comprised of representatives of GAF and officials from the Australian Department of Transport.
- Both Malaysia and Australia have ratified the Chicago Convention. It is understood that separate investigation reports were prepared. To date, neither the Malaysian nor the Australian reports have been released.
- The investigations were however completed. On Oct. 28, 1976, in response to a question posed in Parliament on whether the third respondent (Malaysian Government) intended to reveal the findings of the crash, the then Deputy Minister of Communications said, in summary, that the third respondent did not intend to place the full investigation report before Parliament.
- The investigations were however conducted by an investigation team which concluded that the tragedy did not reveal any technical errors or any act of sabotage as being the cause of the crash.
- What the investigation team instead discovered was that the fault was due to human error. It was said that the aircraft’s cargo-hold at the back of the aircraft exceeded its maximum load and, as a consequence, this had resulted in the aircraft losing control when it attempted to land at Kota Kinabalu Airport. This resulted in the tragedy.
- This was reiterated by the then Deputy Minister of Transport in Parliament on Dec 15, 2009, in response to a question as to whether the second respondent (the Minister of Transport) would reveal the findings of the Malaysian investigation. He said that “amongst the concrete factors” (translated from Bahasa Malaysia) determined as having caused the tragedy to occur were human error, or pilot error, and the excess loading of the aircraft concerned.
- He further said in Bahasa Malaysia: “Walaupun pesawat berkenaan hanya berkapasiti untuk membawa enam orang penumpang sahaja, ia telah dinaiki oleh 11 orang penumpang disertai dengan excess baggage dan ini dipercayai menyebabkan pengendalian pesawat menjadi sukar dan off balance, khususnya semasa pendaratan ditambah pula dengan ketiadaan instrumen radar pada ketika itu.”
- This is translated as: “While the aircraft concerned only had the capacity to carry six passengers, it was boarded by 11 passengers coupled with excess baggage and it was believed to cause difficulty in the control and off balance of the aircraft, especially while landing in addition to the lack of any radar instrument at that time.”
- Neither the Double Six report Malaysian Investigation Report and the Four Australian Investigation Report have been made public despite several calls for their declassification and disclosure by politicians, family members of the crash victims and the public alike. The events surrounding the tragedy is still widely reported, having recently, in commemoration of its 46th anniversary, been made the subject of an investigative documentary (by Daily Express) entitled “Double Six: The Untold Stories”
The mystery as to the Double six crash remains a burning issue among Sabahans and the print media reflects this lack of closure. “Findings cannot stay secret forever: Yong’ (Daily Express, 07.06.2016), “NGO asks why Double Six findings a secret” (Daily Express, 01.06.2017), “Family members still waiting for Double Six tragedy report” (Borneo Post, 06.06.2022) and ‘Push for the release of Double Six findings’ (Daily Express, 13.06.2022).
- The Official Secrets Act (OSA) is clear. The Minister alone has the right and discretion to classify and subsequently to de-classify a document. Understandably, he need not give his reasons for exercising such decision to classify because in so doing he may compromise the very national security status he seeks to protect.
Added to this is the recognition that Parliament had every right to enact the OSA and within the OSA to clothe the Minister with an almost absolute discretion to classify and de-classify. It is not for the courts to even attempt to curtail or question that right. In any event the legality of the OSA is not the issue here.
- The applicant has relied on a plethora of authorities, principally from the apex court, laying and reinforcing the foundation on the powers of the Superior Courts in a Judicial Review on the precept of the basic structure with separation of powers between the executive, legislature and the judiciary within our democratic framework. More cogently was the argument on the right to information as a corollary to free speech, the proportionality doctrine in that a power conferred that infringe a fundamental right must have an objective that is sufficiently important to justify limiting the right in question, all these six precepts ultimately derived its existence and force from the Federal Constitution.
- It appears difficult to choose between the two sides as this Court must do, because the respective weight, legality and cogency between these arguments mean that the scale of justice is finely balanced.
- For example, we have judicial review by the Courts, the basic structure represented by separation of powers and the doctrine or proportionality, are all to ultimately afford legitimacy to the actions of the legislature or of a statutory act or decision by the executive.
- The foundation of our democracy is the Federal Constitution. So long as laws and the citizens, the legislature, executive and the judiciary act or work within the confines of the Federal Constitution, there is law and order. With such mutual compliance comes an innate sense of legitimacy by the citizens of their Government. This sense of legitimacy is critical for society to survive and thrive. You are all in Court today because you believe in the legitimacy of this Court as an arbiter of the prevailing dispute. If the Courts have no legitimacy, disputes will be resolved by armed conflict and society will dissolve to unrestrained anarchy.
- Legitimacy can be multi-tiered – firstly, legitimacy of a legislation with reference to its conformity with the Federal Constitution and, secondly, legitimacy of the exercise of a statutory discretion to the wider perception of the populace in its democratic government.
- This is not in any way to disparage or question the reasoning behind the series of landmark decisions by the Federal Court, cited by the parties in this case, on the standing of the basic structure, proportionality and judicial review, among others. Far from it, the concept of legitimacy pervades the ultimate objective of these decisions. Legitimacy was alluded to only in passing in some of the landmark cases cited but it is hard to ignore that the ultimate aim of these decisions is to preserve the legitimacy of the legislature or the executive. It is for this very reason we have the power of Judicial Review resided in the Courts as a “check and balance”. The whole purpose of “check and balance” in any case is to promulgate the legitimacy of a legislation or of an executive action.
- Legitimacy of the government in the eyes of the populace is critical as the public must recognise the law and the Government as legitimate, failing which, human behaviour will not believe in and follow the rule of law. The proverbial “unruly horse” doctrine of “public policy” or public interest are in its true essence doctrines of public legitimacy of the rule of law.
- Coming to the case in hand does the decision of the Minister in not to de-classifying the Double 6 report lower the populace’s estimation of his reputation, and in consequence, his legitimacy of his ministerial portfolio and the Government he represents?
- The most compelling argument on the part of the Applicant is of the right to information being the corollary to the freedom of speech. In addition, the doctrine that the right given to the Minister must be in proportion to the evil such right seeks to protect. I would agree that where the Minister is given the power to de-classify under section 2C of the OSA under given circumstances, a duty to de-classify arises and the non-exercise of such duty must be with reason.
- Equally compelling is the argument by the Respondents of clear letter of the law in the form of the unchallenged OSA where there is no provision to require the Minister to give any rationale for his decisions to classify and de-classify any document.
- When faced with this dilemma, the test of legitimacy is relevant.
- For the Minister to deny de-classification of the Double 6 report but then speak of openness and closure in respect of MH370 cannot by any stretch of the imagination reflect well on him as one of our leaders. He has the acknowledged right under the OSA not to declassify but in so doing his legitimacy as the people’s representative in our democratic Government and in the context of the circumstances of this case, is diminished and consequently prejudices the legitimacy of the very Government he serves.
It is this very state of affairs that Judicial Review can arrest. 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.
Harris was represented by counsels Malik Imtiaz Sawar, Datuk Alex Decena and Jordan Kong while SFC Shamsul Bolhassan, Noor Atiqah Zainal Abidin and Ng Wee Li from the Attorney General's Chambers for the respondents.
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