Salim Bashir and Joshua Wu said that while the affected families may have a claim in negligence, they may not be able to pursue legal action due to restrictions contained in the Limitation Act 1953 and the Public Authorities Protection Act 1948 (PAPA).
According to Salim although section 6A of the Limitation Act extends the usual limitation period so that it expires three years from the date of discovery of a negligent act, the law also provides that no action can be brought once 15 years have elapsed since the date of the tragedy.
“In the case of the Double Six tragedy, the real situation was only known after 47 years, which is beyond the 15-year period prescribed in section 6A(3),” he said.
Wu said that under the law, the limitation period does not begin to run if a plaintiff’s right of action has been concealed by fraud.
In such a case, section 29(1)(b) may extend the applicable time limit, but only if section 2(a) of PAPA does not apply.
“Section 2(a) states that any lawsuit for negligence against those carrying out public duties must be filed within 36 months of the incident,” said Wu.
“Sabah Air could arguably fall into this category (of being a public authority) as it is registered as a state government agency under the purview of the finance ministry,” he said.
Wu and another lawyer, A Srimurugan, said the families of the victims should have filed their civil suits within the applicable limitation period, despite the classification of the crash reports as official secrets.
As an example, Wu said the next of kin of those onboard the missing MH370 managed to file a negligence suit despite not having the full details of the plane’s disappearance at the time.
Meanwhile, Srimurugan said the report’s classification under the Official Secrets Act 1972 does not suspend the family members’ right to pursue legal action.
“It does not stop a litigator from calling witnesses and experts to establish a case,” he said, adding that where necessary their appearance to testify and produce documents can be compelled via a subpoena.
An Australian report on the air crash released on Wednesday found that Sabah Air was operating illegally at the time of the June 6, 1976 crash.
The report said Sabah Air had submitted a draft of its operations manual towards the end of 1975, but the document was never approved by the then civil aviation department, a federal authority.
The incident claimed the lives of then Sabah chief minister Fuad Stephens, state ministers Salleh Sulong, Chong Thien Vun and Peter Mojuntin, as well as seven others, after the GAF Nomad aircraft they were in crashed in Sembulan, Kota Kinabalu.
Investigations were launched by the Malaysian authorities, GAF and the Australian department of transport, but their findings were never made public until earlier this month.