Written by: Averroes
(1.0) Introduction
The Official Secrets Act 1972 (OSA) has received a lot of attention lately. It has been criticised and percevied as a carte blanch to silent political opposition, journalists, withhold information which is of public interest and importance as well as to conceal flaws or corruption within the government.
The OSA was modelled after the English Act of 1911 (Official Secrets Act), when there was the first world war in Europe, where countries were engaged in rearmament against the Central Powers.
It was suggested that the OSA was wielded to mask over the auditor-general's report on the 1MDB scandal during the tenure of the government before the 14th General Elections. The vice-president of Parti Keadlian Rakyat (PKR) Rafizi Ramli as he was then, was sentenced to 18 month's jail for disclosing segments of the said report.
The previous Prime Minister, Tun Dr. Mahathir Mohamed states that the law is imperfect, as it is open to abuse. However, the law itself is not abusive, but it lied within the government of the day that had ulterior motives, violating the rule of law.
The new government after the 14th General Elections manifested to replace the OSA with the Freedom of Information Act or the Right to Information Act, as well as to revise the Whistleblower Protection Act 2010 and the Witness Protection Act 2009.
(2.0) Criticisms
The Centre for Independent Journalism (CIJ) had criticised the law for being too oppressive and draconian. It has threatened media freedom that acts as obstacles for the rakyat to receive information. They cited that the law allows 'any document' to be classified as secret, once it is certified by a public officer.
They could classify any document, even if it does not harm the public or is related to national security, international relations or defence. They argued that, this law is permissible if its fundamental purpose is used appropriately for state security or privacy.
Having laxity in the law would encourage public participation from the rakyat to discuss on decisions or actions made by the government upon them, whether socially, economically or politically. It allows access for debates, discourses toward decision-making processes by the government, greater yields of transparency and integrity as well as fosters the rule of law.
Malaysia is a democratic society that requires the government to be accountable. Simultaneously, individuals disclosing information, such as whistleblowers, media and in the civil service who has reasonably in good faith done so must be protected from legal sanctions or liability.
(3.0) Legal Analysis
(3.1) International Law
According to article 19 of the Universal Declaration of Human Rights (UDHR), the right to freedom of expression is founded on the following wordings;
"Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."
Though, UDHR is not directly binding, but as part of customary international law, Malaysia is supposed to be committed to it. Also the International Covenant on Civil and Political Rights (ICCPR), is a binding legal treaty, similar to article 19 of the UDHR.
Despite Malaysia not being a signatory or has ratified it, it is still an authoritative document elaborating on several rights.
In the case of Fressoz and Roire v. France, 21 January 1999, Application No. 29183/95, the European Court of Human Rights held that,
"It is... incumbent on the press to impart information and ideas on matters of public interest. Not only does it have the task of imparting such information and ideas; the public also has the right to receive them. Were it otherwise, the press would be unable to play its vital role of 'public watchdog'."
(3.2) Malaysian Law
According to article 10(1) (a) of the Federal Constitution; subject to clauses (2), (3) and (4), every citizen has the right to freedom of speech and expression.
Therefore, the Federal Government could impose restrictions on friendly relations with other countries, public order or morality, privileges of Parliament or of any Legislative Assembly, etc. This may have included the OSA to protect public order and relations with other countries from information detrimental to Malaysia.
(3.2.1) Probing the law
The Provisions
As commented by CJI, we shall study the OSA and provide the legal basis of why it may be weak or be wielded arbitrarily by the government of the day.
According to section 2 of OSA, defines the following terms as;
'official secret' as; "Any document specified in the Schedule to the Act and any information and material relating thereto and includes any other official document, information and material as may be classified as Top Secret, Secret, Confidential or Restricted, as the case may be, by a Minister, the Menteri Besar or Chief Minister of a State or such public official appointed under section 2B."
'Official' is defined as; relates to any public service
'Schedule to the Act' provides the following documents to be official secret which are;
(i) Cabinet records, records of decisions and deliberations including those of Cabinet committees;
(ii) State Executive Council documents, records of decisions and deliberation including those of State Executive Council committees;
(iii) Documents concerning national security, defence and international relations. The Schedule can be amended by section 2A.
Reading all those definitions together, they are to be read with the following provisions which establishes the penal or criminal offences under OSA;
Section 8, (will be explained in detailed in the case laws sub-heading)
Section 7A, makes it an offence to fail to report an unauthorised request for an official secret.
Section 7B is for an offence to place oneself in the confidence of a foreign agent or do anything likely to place oneself in the confidence of a foreign agent.
Section 8(2) penalises the unauthorised receipt of the information unless the recipient can prove that they received the information contrary to their desire.
Section 9(2) establishes a similar offence of possessing official information without lawful authority.
Case laws
To better understand the provisions above, we would adduce a few case laws for illustrations;
In Lim Kit Siang v Public Prosecutor [1980] 1 MLJ 293, the appellant was charged under OSA for five offences, namely;
(i) Receiving secret official information which he had reason to believe was unauthorsied, section 8(2)
(ii) Failing to disclose source of information (such as to the police), section 11(1)(a)(aa)
(iii) Failing to take reasonable care to prevent publication of information, section 8(1)(iv)
(iv) Communicating the information in a speech, section 8(1)(i)
(v) Divulging the information in a letter to a news review, section 8(1)(i)
The information was related to the purchase of fast strike crafts for the Royal Malaysian Navy. Court held that as a MP, he should not disclose secret information outside of parliament and that he had clearly committed the 5 offences.
Military assets by nature is of official secret and that the government had assigned them as one, related to national security and defence. (though not expressly mentioned by court). It could allow the enemy to destroy our facilities and military assets.
In Public Prosecutor v Subbarau @ Kamalanathan [2017] 6 MLJ 434, the respondent was charged under section 8(1)(c)(iii) of OSA for wrongful communication (leaking) UPSR questions for Bahasa Tamil Penulisan, Science, Mathematics and Bahasa Tamil Pemahaman through pictures circulated on Whatsapp through his Samsung phone.
Court held that, despite the pictures circulated were just drafts, they were intended to be the final version of the UPSR examination papers and it requires a certifying public officer to classify each and every draft to become final. It would be absurd that a draft is not an official secret, despite not finalised.
The PW12 appointed by the Minister of Education classified the UPSR 2014 question papers as confidential, but not the drafts. The words 'any information and material relating thereto' includes the initial drafts as well.
In Mohammad Ezam Mohd Nor v Public Prosecutor [2004] 2 CLJ 595, section 16A was declared to be inconsistent with the interpretation of official secret, which is obnoxious, draconian and oppressive. This was because, it can bypass classification and instantly become official secret with a certificate only.
Apart from that, the court highlighted again that a document being classified as official secret, has to be determined by a public officer appointed by a Minister. However, this was not proven as they only relied on the unconstitutional certificate requirement.
Critics stated that public officer is too wide and must only be from persons from actual higher positions in the government, not a random person that a Minister could ascribe to, which is a sign of abusive powers.
(4.0) Conclusion
To conclude, OSA lies between the dichotomy of landing into the hands of arbitrary governments or that it requires appropriate amendments to eschew from situations of arbitrary governments. In either situations, we require a transparent and a government that may administer the nation without applying OSA, which slowly makes the law obsolete our out of use, or;
The government could still amend certain provisions or repeal OSA and replace with a better law.
(5.0) References;
The Straits Times. (August, 2018) Official Secrets Act to stay, says Malaysian PM Mahathir. Retrieved from, https://www.straitstimes.com/asia/se-asia/official-secrets-act-to-stay-says-malaysian-pm-mahathir
Malay Mail. (June, 2020) Public’s right to information must be upheld and OSA repealed after news editor called in for police questioning — CIJ. Retrieved from, https://www.malaymail.com/news/what-you-think/2020/06/26/publics-right-to-information-must-be-upheld-and-osa-repealed-after-news-edi/1879190
Malay Mail. (July, 2020) CIJ calls for Official Secrets Act to be replaced with Right to Information Bill — Centre for Independent Journalism. Retrieved from, https://www.malaymail.com/news/what-you-think/2020/07/15/cij-calls-for-official-secrets-act-to-be-replaced-with-right-to-information/1884826
Article 19: Global Campaign for Free Expression. (September, 2004) Memorandum on the Malaysian Official Secrets Act 1972. Retrieved from, https://www.article19.org/data/files/pdfs/analysis/malaysia-official-secrets-act-sept-2004.pdf
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