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Thursday, 08-Apr-2004 6:07 PM Did Ezam really leak official secrets? The National Justice Party Youth Leader Ezam Mohd Nor’s appeal hearing against his conviction and two-year jail sentence for an offence under Malaysia’s draconian Official Secrets Act (OSA) continued in the Shah Alam High Court today. (Ezam jailed two years – serves sentence immediately: FAC News 7 August 2002) The defence (appellant) had earlier wound up its submission and today was the prosecution’s turn to reply to the points raised by the defence. The prosecutor started off by going round and round in an apparent state of confusion prompting the judge, Justice Dato’ Segara, to butt in and caution the prosecutor to stick to the facts of the case. The prosecutor however persistently pursued his line of argument, which resulted in the rest of the morning being reduced to a debate between the judge and the prosecutor that gave the impression the judge was trying to lecture the prosecutor on how the law works. What the judge wanted to know was whether the documents that Ezam had allegedly leaked to the press in a media conference in 1999 were really classified documents, and that by leaking them this would either threaten the security of the nation or jeopardise public order. The prosecutor refused to answer the judge’s question directly and instead tried to explain that it does not matter whether the documents in question were really sensitive in nature or not but that it had the ‘confidential’ stamp on it and this is all that matters. The prosecutor also reminded the judge that the court is not authorised to question the contents of the documents but suffice to say that since the documents had that rubber stamp on it, therefore being in possession of them constitutes a crime and this is all the court needs to take into consideration. To this the judge retorted that this provision in the OSA is rather draconian and the court should lay this matter to rest once and for all and establish whether the court should ignore the contents of the documents and just take the rubber stamp as the crux of the whole matter since whatever precedence is set in the case will have a bearing on all future cases. The judge then asked the prosecutor whether a charge sheet issued by a court is considered a classified document? The prosecutor did not reply to this question and instead told the judge that the court should not look at the charge sheet alone but also the attachments to the charge sheet, which is the Attorney-General’s report. The judge, not about to allow the prosecutor to sidestep the issue, pressed on with asking him whether he, as an officer of the court, can confirm whether a charge sheet is a classified document or a public document. The prosecutor still refused to reply, forcing the judge to retort that a charge sheet is not a classified document but in fact a public document. The prosecutor finally relented and agreed with the judge but still insisted that it is not the charge sheet that constitutes the offence but the AG’s report. The judge then asked the prosecutor who signed the AG’s report to which the prosecutor replied he did not know. When asked what was the date of the report, the prosecutor replied he also does not know. The judge then wanted to know who had stamped the documents with the ‘confidential’ rubber stamp and whether the person who had stamped the documents was in fact authorised to do so. The prosecutor also did not know the answer to this question but replied that it does not matter who had stamped the documents or whether this person was authorised to do so as the fact the documents were stamped was all that matter. The judge could not accept this argument and brought the prosecutor back to the sensitivity of the documents and whether if worthless documents that did not in any way threaten the security of the nation or jeopardise public order were stamped, would being in possession of them still constitute a crime? Clearly at a loss, the prosecutor tried to wangle out of his tight corner by reading out the provisions in the OSA that does not give the court any room to scrutinise the contents of the documents but merely act based on the rubber stamp on the documents. The judge again said that this is draconian and the court cannot accept this argument seeing that the prosecution’s entire case and conviction was based on just the documents alone. The court therefore must establish whether the documents are indeed confidential to ensure no element of mala fide existed in prosecuting Ezam. The prosecutor tried to salvage his lost cause by pointing out that a certificate had in fact been issued classifying the documents Ezam had revealed to the media. The judge replied that the certificate was dated October 2000 whereas Ezam’s press conference was held in August 1999, more than a year earlier. Therefore, asked the judge, when Ezam revealed the documents in 1999, had they already been classified or had they in fact been classified later, after the press conference? The prosecutor replied that they had already been classified before the press conference, as the rubber stamp was already on the documents when Ezam held his press conference in 1999. But when asked what was the date the documents had been rubber stamped as ‘confidential’, the prosecutor replied he did not know. At this point of time, the judge appeared to have lost all interest in engaging the prosecutor any further in the debate and he just allowed the prosecutor to ramble on while he sat there with a distant look on his face. The defence’s main line is that the documents Ezam had revealed to the media in his press conference in 1999 were not classified in spite of the rubber stamp because the media had already earlier reported the Anti-Corruption Agency (ACA) corruption investigation against Rahim Thambi Chik and Rafidah Aziz – which forms the contents of the documents. The prosecution, in turn, is arguing that whether the contents of the documents are indeed classified or not or whether the public was already aware of it even before Ezam’s press conference is not the issue and that the only issue before the court is whether the documents did in fact have a ‘confidential’ rubber stamp on them – what would then constitute the offence. The prosecution also argues that the court has no legal authority to look further beyond the rubber stamp -- such as into the contents of the documents -- and that the court should only ask whether the documents had in fact been stamped. The court, on the other hand, wants to know whether the Photostat copies of the documents in Ezam’s possession were true copies of the original classified documents, as the maker of the documents had never been called to court to testify. The court further wants to know who rubber-stamped the documents as ‘classified’ and whether this person had the authority to do so, and since the prosecution does not know the answer to this whether the documents are therefore valid seeing that these documents are the basis for the prosecution’s entire case. The hearing will continue on Thursday, 15 April 2004. Other news items on the Ezam Mohd Nor Official Secrets Act case: My struggle is with the people: Anwar (FAC News 13 July 2003) Ezam Mohd Nor: Firebrand, politician, statesman (FAC News 11 June 2003) "I am proud of Ezam," Bahirah (FAC News 23 August 2002) Suhakam, stop acting like a monkey: Lim (FAC News 21 August 2002) Laws that bar courts from doing justice (FAC News 9 August 2002) I am proud of my husband: Bahirah (FAC News 8 August 2002) Corruption is no crime, exposing it is: Lim (FAC News 8 August 2002) Ezam's Conviction: A Political Victimisation and Condone of Corruption (FAC News 8 August 2002) FULFILLING MY MORAL OBLIGATION TO THE PEOPLE AND THE NATION: Ezam 7 August 2002
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