The wife of Amri Che Mat has gone to court to compel the release of the Official Secrets Act (OSA)-classified findings of a task force report into the social activist’s 2016 enforced disappearance.
Norhayati Mohd Ariffin filed the judicial review leave application at the Kuala Lumpur High Court on Thursday last week.
She seeks to quash the OSA classification in order to access the report to strengthen her related civil action against the police (PDRM) and the federal government over her husband's disappearance five years ago.
On June 26, 2019, two months after the Human Rights Commission of Malaysia (Suhakam) concluded that Amri was a victim of enforced disappearance, the Home Ministry formed a special task force to re-investigate the matter.
However, on April 2 this year, civil society group Citizens Against Enforced Disappearances (Caged) urged the government to release the findings of the task force.
This was due to a lack of updates over the status of the report and what action the government is to take based on the findings.
Against national interest
According to a copy of the judicial review bid sighted by Malaysiakini, the filing listed Police Force Commission secretary Mohd Russaini Idrus and the government as the first and second respondents respectively.
Through the court papers, Norhayati contended that the government, through an affidavit filed on Sept 13 this year, revealed that the task force’s report was classified as an official secret under the OSA and that it claimed disclosure of the findings would be against national interest.
She was referring to the government’s affidavit in reply (AIR) to her discovery application filed as part of her main civil action over Amri’s disappearance.
Through the affidavit, the government has refused to abide by her discovery application for the task force’s findings.
Norhayati contended that despite the refusal to disclose the task force’s report, the government did not take the position that the finding was irrelevant to her main civil action.
“The applicant (Norhayati) is adversely affected by the decision of the respondents (government and police) to treat the report as an official secret within the meaning of the OSA.
"The fact of their treating the report as such was only communicated to the applicant on Sept 13, 2021, through the AIR.
“The report contains information that is relevant to the matters arising in the civil suit and further contains information that is undeniably in the public interest.
“It was prepared by the task force to record the findings of an inquiry into the findings made by Suhakam in the Suhakam report (which concluded that Amri was the victim of enforced disappearance),” she contended.
“The civil suit concerns PDRM’s (alleged) failure to effectively investigate the abduction of the applicant’s husband. The information in the report is highly relevant.
“The applicant should thus have access to the report as it concerns the conduct of PDRM in relation to matters surrounding the disappearance of her husband.
“This is essential to her claim in the civil suit and is integral to her access to justice, a right guaranteed under Articles 5 and 8 of the Federal Constitution,” Norhayati contended.
Several reliefs
Article 5 enshrines the fundamental right that no person may be deprived of life or personal liberty except in accordance with the law.
Article 8 lays out the constitutional right that all persons are equal before the law and entitled to equal protection of the law.
She also claimed that the task force’s findings are not suitable for it to be classified as an official secret under OSA.
Norhayati’s judicial review bid seeks several reliefs, among them a declaration that the task force’s report does not fall within the definition of an official secret per Section 2 of the OSA.
She also seeks an order to quash Russaini’s decision to treat the report as an “official secret” under the OSA on Sept 14 last year.
Finally, she seeks an order to compel the government to release the report to her within seven days from the date of said order.
When contacted this afternoon, her counsel Surendra Ananth confirmed that the copies of the judicial review application have been served on the two respondents.
The lawyer added that the Kuala Lumpur High Court has fixed Jan 12 next year to hear Norhayati’s application for leave to commence with the judicial review to access the task force report.
If the High Court grants leave, it would later set another date to hear submissions from parties over the merits of the judicial review proper.
On April 3, 2019, Suhakam’s public inquiry concluded that Amri and pastor Raymond Koh, who vanished in 2016 and 2017 respectively, were victims of enforced disappearance.
The three-member panel also unanimously concluded that the perpetrators were members of the Special Branch from police headquarters Bukit Aman. - Mkini
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