Did Nor Salwani commit an offence under the OSA by keeping a copy of the original 1MDB audit report? Legal experts say yes, and no

© Provided by Malay Mail Sdn Bhd Witness Nor Salwani Muhammad is pictured at the Kuala Lumpur Court Complex November 21, 2019. — Picture by Firdaus Latif

KUALA LUMPUR, Nov 23 — Government auditor Nor Salwani Muhammad is now hailed as the icon of the civil service after it came out in court that she secretly retained a draft copy of the original 1Malaysia Development Berhad (1MDB) audit report, which was ordered destroyed.

She also made a voice recording of a 2016 meeting where changes to the Auditor-General’s audit report on 1MDB were ordered, without anyone’s knowledge.

These revelations were made in the court at the 1MDB audit report tampering trial of Datuk Seri Najib Razak and Arul Kanda.

While there have been calls by the public to handsomely reward the officer for putting her career and personal safety on the line, questions have also been raised about the legality of what she did.

Could Nor Salwani have violated the Official Secrets Act (OSA) 1972 when she decided to retain an original copy of the highly classified 1MDB audit, against her superior’s orders?

If so, could the authorities prosecute her under the OSA, and most importantly, should they?

If they decide not to, does this mean that civil servants can now exercise their own discretion when it comes to retaining confidential material against orders, in case this should later become important evidence in future?

Legal experts: Unlawful does not mean morally incorrect

Lawyer Fahri Azzat said that Nor Salwani’s move to save a copy of the said classified report against her superior’s order was legally wrong.

“To the first question: Yes,” he said, when asked if her action can be penalised under the Official Secrets Act (OSA) 1972.

However, Fahri said that from a moral perspective, the sentiment stands otherwise.

“I think firstly, what we need to understand is that, just because something is legally wrong, does not mean it is morally incorrect,” he told Malay Mail.

He said that authorities should not prosecute Nor Salwani, as what she did can be considered “whistleblowing.”

“No, they shouldn’t. She’s like a whistleblower. From a policy perspective, they shouldn’t,” he said, adding that officers like Nor Salwani have a higher duty to the public.

“If the machinery of government is used to effect wrong and injustice, then I think every civil servant is under a duty to preserve evidence showing that.

“They should report it also. What I don’t hear about is, why she didn’t report it under the whistleblower provisions,” he said.

Fahri said that the OSA must also be retained, but with publicly available guidelines as to what, and how matters are classified under the said law.

He said that there should also be avenues and procedures to challenge these.

Senior lawyer Nizam Bashir, however, disagreed that Nor Salwani’s action was unlawful but concurred with Fahri that she should not be penalised, again stating that a legally wrong action does not mean it is dishonourable.

“Merely retaining a final draft of the 1MDB audit report is not contrary to the Official Secrets Act as the OSA was intended to regulate unauthorised disclosures of documents subject to the OSA.

“Authorities should not prosecute her under the OSA,” Nizam said, pointing out that civil servants, however, must abide by their departments’ document retention policies.

Lawyer Azlan Abdul Razak also concurred with Nizam.

“The audit report alone is classified under OSA, but the retention of it, is not.

“But for an act to be deemed as contravening OSA, is when such retention, making of documents etc, is calculated to be prejudicial to national security, and that it is intended to be directly or indirectly useful to a foreign country,” Azlan said.

Citing Section 4 of the OSA, he explained that the release of the recording of the audit report meeting made by Nor Salwani in court, also cannot be deemed as releasing a classified document, since it is not with the intention of either threatening the security of the nation, or bearing the hallmarks of potential distribution, or use to a foreign country.

“I’m saying even if it’s legally wrong, it won’t stop its production as evidence in court. It’s still admissible.

“Illegally obtained evidence is admissible,” Azlan said.

© Provided by Malay Mail Sdn Bhd Former prime minister Datuk Seri Najib Razak is pictured at the Kuala Lumpur Courts Complex November 21, 2019. — Picture by Firdaus Latif

In testifying against former prime minister Datuk Seri Najib Razak and former 1MDB CEO Arul Kanda Kandasamy in their trial, Nor Salwani denied she intentionally made the recording secretly, asserting that she had hastily placed the voice recorder in her colleague’s pencil case when ordered to leave the meeting room.

She told the High Court she had gone to the February 24, 2016 meeting which was chaired by then chief secretary to the Government Tan Sri Ali Hamsa and held in his office.

Nor Salwani said she went with other National Audit Department’s (NAD) officers including then auditor-general Tan Sri Ambrin Buang and the 1MDB audit team’s leader Saadatul Nafisah Bashir Ahmad to the meeting, noting that the meeting involved other senior government officers and 1MDB’s Arul Kanda.

But just before the meeting started, Nor Salwani said she was hastily asked by Ali’s staff to immediately leave the meeting room, despite her position as the co-ordinator of the NAD special audit team on 1MDB. 

Nor Salwani said just before she was forced out of the meeting room, she managed to hurriedly put the voice recorder into Saadatul Nafisah’s pencil case ― which was already open and lying on the table.

She explained that she had to make the recording to prepare the minutes of the meeting, as it was related to the NAD’s audit and due to her role as the audit team’s co-ordinator.

The February 24, 2016 meeting eventually resulted in four main changes to the 1MDB audit report before it was finalised and presented to Parliament’s Public Accounts Committee (PAC).

In this latest trial, Najib is accused of having misused his positions as prime minister and finance minister to order the 1MDB audit report changes to avoid civil or criminal action, while Arul Kanda is accused of having helped Najib commit the alleged offence.

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