How does the OSA power to classify information compare to constitutional rights?

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The Official Secrets Act powers to classify information are subordinate to constitutional rights, particularly the right to information derived from freedom of expression.

The High Court in Kota Kinabalu has mandated the Malaysian government to declassify the investigation report into the June 6, 1976, plane crash, commonly known as the "Double Six Tragedy." This ruling establishes that the government's authority to classify information under the Official Secrets Act (OSA) is not absolute and must yield to the Federal Constitution. The court underscored that the right to receive information is intrinsically linked to the fundamental right of freedom of expression, a cornerstone of democratic governance.
The Primacy of the Federal Constitution

The court's decision highlights that while the OSA grants powers for classifying information, these powers are not unfettered. The Federal Constitution, as the supreme law of the land, supersedes any legislation that conflicts with its provisions. This means that the executive branch's ability to withhold information is constrained by constitutional guarantees. Specifically, the right to freedom of expression, enshrined in Article 10 of the Federal Constitution, implicitly includes the right to access information. This principle suggests that any restriction on information dissemination must be demonstrably necessary and proportionate to a legitimate objective, aligning with the broader framework of fundamental liberties protected by the Constitution.
Proportionality and Justifiable Need for Secrecy

A key aspect of the ruling is the emphasis on proportionality and justifiable need. The court stated that the government can only invoke the OSA when there is a justifiable reason to do so and must act in a manner that is proportionate to the objective of maintaining secrecy. After a significant passage of time, such as the 47 years since the "Double Six Tragedy," the justification for continued classification diminishes considerably. The court found that the power to classify the document was not in proportion to the objective of maintaining its secrecy in 2023, particularly given the lapse of time and subsequent events.
Duty to Declassify and Legitimacy

Furthermore, the judgment asserts that the government has a duty to declassify information when the reasons for its secrecy are no longer objectively valid. The OSA, particularly Section 2C, implies this duty to declassify when the grounds for keeping information classified have waned. The court found that the minister had not reasonably exercised the decision not to declassify the "Double Six Tragedy" investigation report. The judge also noted that decisions not to declassify, while potentially within the minister's purview under the OSA, can diminish the legitimacy of both the minister and the government he serves, especially when the public interest in knowing the information is substantial, as in this case concerning a significant historical event.
Public Interest and Accountability

The ruling underscores the public's right to demand justice and accountability, particularly if the declassified report reveals any wrongdoing, as no individual or entity is above the law. The court also highlighted the executive branch's duty to the aviation industry to disclose the findings of such investigations to enhance air travel safety, a practice generally followed in other commercial aircraft crash investigations. The lack of closure for the families of the victims and the wider public in Sabah regarding the "Double Six Tragedy" was noted as a critical factor in favour of declassification.

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How does the OSA power to classify information compare to constitutional rights?

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