The Shah Alam High Court today cast doubts in the prosecution's case against Keadilan Youth chief Mohd Ezam Mohd Nor by raising the credibility of the 'secret' ACA report - the vital piece of evidence used to convict him for breaching the Official Secrets Act (OSA).

Justice KN Segara asked whether the Anti-Corruption Agency (ACA) report on the alleged corrupt acts by former Malacca chief minister Abdul Rahim Tamby Chik and International and Trade Industry Minister Rafidah Aziz , which formed the basis of the prosecution's case was credible.

"The report was undated, and we have no knowledge who prepared it as there is no name or signature owning to it. What the prosecution has is a hearsay evidence (by the investigating officer) that it was prepared by Abdul Gani Patail (now the attorney-general) ( photo )," he said.

"However this contention has not been substantiated by the maker (Abdul Gani) who was not called. So how do we know if the classified report was the same to that divulged by the appellant (Ezam) to the media as alleged by the prosecution?"

He posed this query at the hearing of appeal by Ezam against his conviction and the subsequent two-year jail sentence meted by the Sessions Court on Aug 7, 2002.

He was said to have committed the offence during a press conference at Keadilan headquarters at Menara Phileo Damansara in Kuala Lumpur on Nov 6, 1999. Both Rahim and Rafidah were later cleared by the cabinet of any wrongdoing.

Irrelevant issues

In his reply, deputy public prosecutor Vong Poh Fah said that all the issues raised by the judge were irrelevant to the prosecution's case.

"It does not matter who or when the report was made. The crux of the case is that the document has been classified as secret document by the then attorney general and that the accused had communicated it to the public without valid authorisation," said Vong.

He also said that section 16(1)(a) of the OSA states that the prosecution only has to present the certificate declaring the ACA report as official secret to prove that it is indeed a classified document.

To this Justice Segara asked: "In a situation where the facts show something is not quite correct, is the court entitled to go beyond the certification notwithstanding the draconian provisions of the laws?"

Vong replied that the law is clear that the court cannot delve into the subject matter stating that the law gives the government and its officers absolute discretion in their decision-making process when certifying a document as "official secret".

He also said that even informal documents like meeting minutes and notes on discussion can be classified under the OSA

"The government has an absolute right to treat any document or information as secret document. In the past, the court has always taken a back seat as to whether the document had been appropriately classified as secret document," he said

Freedom not absolute

To the defence contention that the charge had infringed Ezam's constitutional right to freedom of speech, Vong said the freedom is not absolute and that it can be curtailed to maintain public order.

Ezam's counsel Raja Aziz Addruse argued that section 16(1)(a) of the OSA cannot be interpreted to mean that the government can declare any document to be a secret.

"In this case, even toilet paper can be declared as secret document. The interpretation has to be reasonable. It cannot be used as a shield (to hide) the abuse of power or corruption by the ministers," he said.

He said freedom of expression can only be curtailed in the interest of national security, to preserve international relations, maintain public order and morality.

"The court must decide whether to expose corruption would upset public order or national security," he said.

The hearing continues on April 15.