The Shah Alam High Court today upheld an appeal by Parti Keadilan Rakyat (Keadilan) Youth leader Mohd Ezam Mohd Nor and quashed his conviction and two-year jail sentence for breaching the Official Secrets Act 1972.

Justice KN Segara said the prosecution had failed to establish its case beyond reasonable doubt that documents - involving two reports on alleged corruption by International Trade Industry Minister Rafidah Aziz and ex-Malacca chief minister Abdul Rahim Tamby Chik - were already classified under the OSA when they were distributed by Ezam to the press on Nov 16, 1999.

"The defence of the appellant (Ezam) ought not to have been called by the sessions court. I therefore allow the appeal and set aside the conviction and sentence. The appellant is acquitted and discharged," said the judge at the conclusion of his oral judgment.

The decision was greeted with applause by Ezam's family members and supporters who filled the court room. Seen congratulating him were Keadilan president Dr Wan Azizah Wan Ismail and vice-presidents Azmin Ali and Dr Xavier Jayakumar.

DPP Vong Poh Fah said he would refer the case to his superior to decide whether to appeal against the decision.

Genuinely classified

Ezam was jailed by sessions judge Wan Afrah Wan Ismail on Aug 7, 2002 after finding him guilty of breaching the OSA by divulging the reports prepared by the Anti-Corruption Agency (ACA) regarding the two high profile figures.

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

In making his ruling, Justice Segara said it was incumbent upon the prosecution to establish that the alleged secret documents divulged by Ezam were genuinely classified by an authorised government official as stated in Section 2 of the Act.

Instead of calling witnesses to prove the important requirement, the prosecution chose to solely rely on the certificate issued under Section 16(A) of the Act by the then attorney-general, the late Mohtar Abdullah ( left ) on Aug 24, 2000 in proving that the reports were genuinely classified as official secrets.

He found that Section 16(A) which allows an authorised government official unquestionable discretion to issue a certificate certifying that certain documents had been classified, as inconsistent to the interpretation of official secrets stated under the Act.

"I find Section 16(A) to be meaningless, obnoxious, draconian and oppressive. It is void and inconsistent to Section 2 of the Act in the interpretation of official secrets," he said.

He also said that the section cannot exempt the prosecution's burden to prove that the classification of any document as official secrets was done in a proper manner as stated in the Act.

"The prosecution should have adduced evidence to support that the two reports were official secrets before the accused received them through the post and they remained as official secrets when he distributed them to the press in November 1999."

He said the prosecution was aware of the importance to call attorney-general Abdul Gani Patail - who was the officer who had prepared the said reports - but failed to do so.

"Instead, it relied on the certificate issued by the then AG which certified the documents prepared by Abdul Gani Patail as official secrets."

No names, signature and date

As the reports bore no names, signature and date, it is not known whether the documents were properly classified as official secret.

"On what date did the document become an official secret? There is no evidence when the document was classified and there is also no evidence that it was classified by an authorised government official," he said.

"The date when the document was classified is crucial because it will determine whether it was indeed classified before the accused had committed the offence on Nov 6, 1999."

Since the certificate issued by the late Mohtar was dated Aug 24, 2000, it gave the impression that the documents were classified well after the accused had committed the offence, he added.

He also said the prosecution's case was further weakened by the fact that the certificate issued referred to photocopied reports and two charge sheets issued by the Melaka Sessions Court - which are public documents.

"The certificate also does not certify that the reports are certified true copy under the custody of the AG's chambers."