KUALA LUMPUR, Oct 20 — The government will not be at risk of sub judice contempt should it publish an independent report on the 2016 fire disaster at Sultanah Aminah Johor Bahru Hospital (HSA) during ongoing litigation, lawyers said.
Jahaberdeen Mohamed Yunoos said that first of all, the sub judice rule is archaic as it was created during the time of jury trial to prevent lay people as jurors from being influenced by outside writings on a case.
Malaysian trials are now presided by judges who are not influenced by matters outside court proceedings, said the senior lawyer, as they have been trained to adjudicate based on facts and evidence.
“The question is, are we saying the judges will be influenced by the report?” Jahaberdeen told CodeBlue, referring to the report by the independent inquiry commissioned by the federal government to investigate the October 25, 2016 fire at HSA that killed six patients.
“If there’s something substantial in the report that will influence judges, then it must be material and substantial. If it’s material and substantial, why is the government withholding important information?”
Then-Health Minister Dr Adham Baba told Parliament on August 13 last year that the Ministry of Health (MOH) has yet to publish the HSA report by the independent committee chaired by former Court of Appeal judge Mohd Hishamudin Yunus — supposedly to avoid sub judice and contempt of court due to a lawsuit over the fire disaster at the Johor public hospital — even though the report was declassified from the Official Secrets Act (OSA) on October 15, 2019.
This negligence lawsuit, filed by the parents of the deceased Neeramaladevi Chandran on October 24, 2019, was actually settled in court on August 12 last year, with the government agreeing to pay the plaintiffs RM136,000 in damages without admission of liability.
However, the families of three other victims who died in the fire — Logeswaran Krishnasamy, Choo Lin Fong, and Kaliama Muniandy — subsequently sued the government in September 2020 for negligence, after reading CodeBlue’s March 2020 articles on the leaked independent committee’s report.
Dr Adham’s successor, Khairy Jamaluddin, told the press last October 7 that he would first seek advice from MOH’s legal counsel amid the three pending court cases on the HSA fire at the MOH hospital, even as he expressed commitment to tabling the independent committee’s report.
Jahaberdeen said the government had the discretion to declassify the independent committee’s report for the purpose of the cases. HSA director Dr Mohtar Pungut told plaintiffs in an affidavit last December 23 that the document was an official secret of the highest-level classification.
“So the question is, barring security and public order, what is stopping the government from declassifying it?” Jahaberdeen said. “It’s not purely a legal issue; it’s also a constitutional and democratic issue.”
“My view is — barring national security and public order — it is incumbent on the government to release any independent reports commissioned because it was commissioned by the people, for the people, even if the report is against the government because the purpose of the report is to improve the government. This defensive nature of the government should stop.”
He also pointed out that the independent inquiry was commissioned with taxpayers’ money and said a government has the “moral responsibility” to offer compensation — even without threat of litigation — in the event of negligence or unintentional harm or damage to citizens.
Government Shouldn’t Act Like Private Litigants
Human rights lawyer New Sin Yew similarly said it was not sub judice for MOH to publish the independent inquiry’s report on the HSA fire tragedy during the three ongoing court cases.
“It’s not sub judice; it’s evidence that’s relevant to the case,” New told CodeBlue.
He added that although in a typically adversarial court process, one is not required to prove the other side’s case for them, the government should not behave like a private litigant in the HSA cases.
“Here, if the government knew that it was caused by their own negligence, they have to provide an effective remedy for it,” New said, citing recourse like prosecution of wrongdoers and compensation for victims.
“From a human rights point of view, you can’t hide behind the court process and avoid the obligation that’s expected of you under international human rights standards.”
New similarly urged the government to publish the independent committee’s report, questioning how it could be a classified document since the OSA is only meant to protect top-level secrets like military weapons. The secrecy law, he said, cannot be abused to withhold information on any alleged negligence.
HSA Report Directly Impacts The Public
Former Malaysian Bar president Ambiga Sreenevasan said she did not believe it was sub judice for MOH to release the independent committee’s report on the 2016 HSA fire because “it is directly relevant to the issue in the court proceedings”.
Ambiga, who is also a commissioner with the International Commission of Jurists, said it was therefore incumbent on the government, as a party to the lawsuits, to produce all relevant documents.
“Of course I feel that all such reports must be made public as of right,” Ambiga told CodeBlue.
“What is the point of a report like this if it is not released? If ever there was a report that directly impacts the public, it is this one.”
Ambiga, New, and Jahaberdeen, who are not involved in the HSA cases, spoke as independent observers.