There is immunity for members of Parliament against prosecution, except for cases of sedition, and when they communicate ‘official secrets’ outside Parliament.
A SECRET, according to the Oxford Advanced Learner’s Dictionary, is something “known about by only a few people or otherwise kept hidden from others”.
Thus secrecy, in a particular case, may only be an agreement between two or more individuals to keep a certain matter confidential. Here, if there is a breach of confidentiality, it would at the most amount to a contractual breach.
In many statutes, there is a prohibition against officers disclosing information which they have received in the course of carrying out their duties.
This would be for the purpose of investigating breaches or offences, which they are prohibited from disclosing unless as provided for under the particular Act. If they breach this prohibition, they commit an offence.
The word secret is also used in instances where the subject matter is not a secret in the sense discussed above. This is where the Official Secrets Act 1972 comes into the picture.
This use of the word secret is, as I have said on earlier occasions, somewhat of a misnomer, because the contents of the particular document may be known to the public but it still can be a secret. This is unlike content that is confidential, where disclosure makes the document no longer confidential.
In this regard the law is enshrined in the Official Secrets Act 1972, which declares itself to revise and consolidate the law relating to the protection of official secrets.
“Official secret” means any document specified in the Schedule 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 Mentri Besar or Chief Minister of a State, or an appointed public officer.
The meaning given also refers to the Schedule of the Act, where it provides such documents to be Cabinet documents, records of decisions and deliberations including those of Cabinet committees, State Executive Council documents, records of decisions and deliberations including those of State Executive Council committees, and documents concerning national security, defence and international relations.
Various people have from time to time been prosecuted under the Official Secrets Act 1972. But this was on the basis of information disclosed to the public through oral discourse or publications.
The question that has now arisen is, what if this information is disclosed in Parliament?
As stated by M. Veera Pandiyan in his article on the principles of Parliamentary privilege nearly two weeks ago, “freedom of speech”, often described as the most important of all privileges, dates back to the English civil wars during the 1600s, when parliamentarians fought for the right to self-governance and independence from the monarchy, culminating in the Bill of Rights in 1689.
The spirit of this declaration in the Bill of Rights is incorporated into the law of our Country by reason of Section 3 of the Houses of Parliament (Privileges and Powers) Act, 1952 which reads as follows:
“There shall be freedom of speech and debate or proceedings in the House and such freedom of speech and debate or proceedings shall not be liable to be impeached or questioned in any Court or tribunal out of the House.”
Also relevant is Article 63 of the Federal Constitution, which reads: “No person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in any proceedings of either House of Parliament or any committee thereof.”
The Constitution does not place any restrictions on freedom of speech in Parliament, but an amendment was made many years later to deny the privilege of any member of Parliament in matters related to sedition.
Except for such cases of sedition, there would thus be immunity for members of Parliament against prosecution.
The principal gatekeeper in this regard is the Speaker of the House, within whose powers it is to allow or disallow questions, answers and comments on what is sought to be discussed.
Such a situation has so far not arisen in the courts of the country for their deliberation. However, it was touched upon in passing in the judgment of the Federal Court in the case of Lim Kit Siang v. Public Prosecutor.
The case arose out of speeches made outside Parliament and articles published based on the statements made by Lim Kit Siang further to his having received information which was indisputably, on the facts of the case, an “official secret”.
During this trial it was suggested that Lim Kit Siang was under a duty, as a Member of Parliament and particularly as the Leader of the Opposition, to disclose such information, especially where it concerned the proper defence of the country.
In deciding that there was no privilege granted to such a person to communicate such information outside Parliament, then Chief Justice Raja Azlan Shah went on to say: “Parliamentary privileges may exempt the appellant from the laws of defamation, so long as the libellous words were uttered within the walls of Parliament, but as he well knows, will not save a member from an action for damages if repeated outside the House.
“We do not consider, since it does not arise for consideration and we do not have the benefit of submissions whether any speech in Parliament revealing official secrets would be caught by the Act, but clearly the duty of the appellant as a Parliamentarian does not include the right to disclose or make available for disclosure official secret information outside the walls of the House to the public at large whatever his motive might be.”
Any comments or suggestions for points of discussion can be sent to firstname.lastname@example.org. The views expressed here are entirely the writer’s own.