Kota Kinabalu: Family members of the 11 people who were killed in the June 6, 1976 Nomad plane crash are overjoyed but cautious over the March 9 Kota Kinabalu High Court order compelling the Federal Government to release the Malaysian findings on the tragedy, as well as getting the Australian Government to declassify theirs.
They fear the new Pakatan Harapan-led Unity Government may appeal against the court decision. Or worse, that the relevant file may have gone missing. The declassification of the report was ordered following a judicial review application initiated by former Chief Minister Tan Sri Harris Mohd Salleh last year, which the previous Government tried but failed to stop.
The June 6, 1976 crash involving an Australian-built Nomad 9M-ATZ aircraft killed Chief Minister Tun Fuad Stephens, Datuk Peter Mojuntin (Local Government and Housing Minister), Datuk Salleh Sulong (Finance Minister) Datuk Chong Thain Vun (Communications and Works Minister); Darius Binion (Assistant Minister to the Chief Minister), Wahid Peter Andu (Permanent Secretary to the Finance Ministry) and Syed Hussein Wafa (Director of the Economic Planning Unit).
Also killed were Johari (Fuad’s son), Captain Gandhi Nathan (pilot), Corporal Said Mohammad (Fuad’s bodyguard) and Ishak Atan (Tengku Razaleigh Hamzah’s executive assistant). Our report on March 9.
Faridah Stephens, whose mum Toh Puan Rahimah looked forward to knowing the report before her untimely passing last year, said the Australian Government must agree to declassify all documents it has in regard to the Nomad planes, and the one that crashed in Sabah.
“Justice Christopher Chin’s judgment is to be lauded. We have wondered for too long what happened and this has led to incredible, sometimes crazy, speculation,” she said.
“Justice Christopher is right. We all have the right to know. It is our hope that the Malaysian Government will bring the information out into the open for scrutiny,” she said.
“While the decision may well be a start towards getting at the truth, my view is that the Australian Government has to agree to declassify all the documents it has.”
She said at the time of the crash, the Australian investigators who came were reported as saying there had never been a Nomad air crash.
“That was a lie. There had been one in 1973, though no one died. In August 1976 there was another that killed the pilot and a crew near Melbourne.
“The handling problems of the plane were well known from the early 70s. Yet it took the Australian Air Force pilots’ refusal to fly it – they called it the ‘widowmaker’ – to finally close down the Government Aircraft Factory in Australia that produced the planes,” she said.
This was highlighted in the Four Corners documentary of 1995 produced by the Australian Broadcasting Corporation titled “Lies in the Sky”.
“In those two decades, many others died in Nomads. In fact, crashes continued beyond that date. Do a Google search. On Youtube there is even a video titled ‘10 Worst Nomad Crashes’.
“The Australian Archives has some 50 folios on the Sabah Air Nomad crash. Of those, 45 are ‘wholly exempted folios’ for a variety of reasons, including that disclosure ‘could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth’ or because the ‘information [was] communicated in confidence by or on behalf of a foreign government...’
“These are reasons specified under the Archives Act 1983 on Decision on Access. Could the Malaysian government now ask for these to be released? Will the Australian Government comply?” she wondered.
She noted a 10-volume damaging test report written by Harry Bradford in 1979, just 3 years after the Sabah Air crash. Bradford was a former Royal Australian Air Force pilot.
“He (Bradford) said people from the army and manufacturing side grilled him for a week, attacked his credibility and tried to pick holes in his report. In the end they couldn’t find any way to discredit it. All copies of the report were then withdrawn to be reclassified with a ‘Security’ classification and put in limited circulation only.
“Where is that report now? Nomads are still being flown. In three years it will be the 50th anniversary of the crash.” Sabah Air has the remaining Nomad that was received at the same time as the ill-fated one in 1975, and which is still occasionally being flown despite GAF’s closure and difficulty in getting crucial spare parts.
Roger Chong, eldest son of Chong Thain Vun, said via email from Australia that it would be interesting to see what the (new) Federal Government does.
“It may decide to ignore the Sabah court because the Federal Court is higher and may overrule the decision,” he said, adding that only God’s righteousness has never been sidestepped.
Datin Jikilin Binion, widow of Darius, is overjoyed that the official Malaysian findings, at least, would finally be known.
“Thank you Harris, Daily Express and everyone who never gave up,” she said.
“My husband continues to live in my heart even though it has been 47 years since the crash claimed his life,” she said. Harris had earlier credited the Daily Express investigative series in the paper and special video documentary as having prompted him to take the unprecedented step of taking the Federal Government to court as a last resort, when all hope seemed lost.
It was the second time since the formation of Malaysia that a former CM had sued the Federal Government. The first was by Stephen Kalong Ningkan but for political reason following his removal as Sarawak CM in the 1960s.
Datuk Donald Mojuntin said the High Court order is a much welcomed decision and relief to many Sabahans, especially the older generation who experienced one of Sabah’s darkest periods in history.
“We hope this decision will lay to rest all the uncertainties and conspiracy theories that have cropped up the last 47 years.
“It is also a victory for advocates of the rule of law in the country, especially those of us in Sabah. It shows the Government’s powers under the Official Secrets Act (OSA) to classify information is not absolute and the Federal Constitution reigns supreme,” he said.
Donald said the court recognised the right of citizens to access information which is in the public interest and the need to curb the government’s power to withhold information unnecessarily or discriminately.
“For the families of the victims of that tragedy, we’ll finally may have a complete closure to the heartache and sorrow of losing our loved ones. I hope the Government will seek the cooperation of the Australian government if required.
“We also fervently hope that there will be no appeal on this long awaited decision. If the government has nothing to hide, the result of the investigation should be disclosed.”
Iskandar Sulong, the son of Datuk Salleh Sulong, said he has an uncanny feeling that someone in government may now say that the relevant file (on the Malaysian investigations) cannot be found.
“After all we are talking about successive prime ministers who for 47 years lacked sympathy for the victims’ families and displayed no desire to make the report public.
“I hope the new Unity Government of Anwar, that feels strongly about transparency and accountability will give the green light to the Australian Government to release their findings as per the court’s request, since Australia said it needs Malaysia’s consent first,” he said.
“They (previous federal governments) should have this done long ago if there was really nothing to hide.”
Harris’ lawyer Datuk Malik Imtiaz Sarwar highlighted the importance of the High Court’s decision as it noted that the government’s powers under the Official Secrets Act (OSA) to classify information is not absolute and the Federal Constitution was still above it.
“This decision is significant as it underscores the right of citizens to access information that is in the public interest, as this is essential to ensuring accountability, and the legitimacy of representative government.
“The decision of the court is ground-breaking in that it deals with the power and duty to classify and declassify information under the OSA. Importantly, despite arguments to the contrary by the government, the court concluded that this power is not absolute, as the Executive is bound to comply with the Constitution,” Imtiaz told Malay Mail.
Imtiaz noted that the High Court had said that freedom of expression results in the right to information, and noted the decision now showed that the government has to declassify information when secrecy is no longer required.
“In particular, the court emphasised that the right to receive information is corollary to the freedom of expression, which is fundamental to democracy. This is welcome and puts paid to the notion that people are only entitled to know what the government wants them to.
“It is now clear that the government can only use the OSA where there is justifiable need to, and it can only do so in a manner that is proportionate. The government is also under a duty to declassify where, objectively, there is no longer a need for secrecy.
“The court ultimately found that Harris Salleh, and the people of Sabah, are entitled to know the results of the investigation into the tragedy,” Imtiaz said.
The other lawyers who appeared for Harris are Datuk Alexander Decena and Jordan Kong.
Senior federal counsel Shamsul Bolhassan who appeared for the government, confirmed that it has yet to decide whether to appeal against the High Court decision.
Federal counsels Noor Atiqah Zainal Abidin and Ng Wee Li also appeared for the Government.
On July 1, 2022, Harris had filed the lawsuit through a judicial review application, naming the chief secretary of the government of Malaysia, the transport minister, and the government of Malaysia as respondents.
Previously on August 8, High Court judge Wong Siong Tung had granted leave for the judicial review application, which meant the High Court would proceed to hear the court case on its merits.
Judge Chin delivered the decision on the case.
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