Putting a lid on government secrets


  • Letters
  • Tuesday, 27 Feb 2007

THE Official Secrets Act 1972 gives the Government a right of privacy in relation to its “official secrets”. The gist of the law is that no “official secret” can be received, retained, released or used without prior authorisation from the Government.  

It is an offence to fail to take reasonable care of an official secret. A person receiving unauthorised information, no matter how innocently, has a duty to report the matter to the police, to divulge his source of information, and to surrender the material once he reasonably believes that the information is an official secret. 

 

Official secrets 

Under section 2 of the OSA, the term “official” means “relating to any public service”. In turn the term “public service” means: 

  • ANY public service like the judicial and legal service mentioned in Article 132 of the Federal Constitution; 

  • ANY local authority; 

  • ANY statutory authority; 

  • ANY person, authority or body declared by the Minister to be so; and,  

  • IN times of war, any government department of an ally. 

    An “official secret” covers two categories of documents: 

  • CATEGORIES of documents specified in the Schedule, namely, federal cabinet documents, state executive council documents and documents concerning national security, defence and international relations. Under section 2A, the Home Affairs Minister can add to the list by amending the Schedule. 

  • ALL official documents that are classified as Rahsia, Rahsia Besar, Sulit, or Terhad. The classification may be done by the Minister or the public officer charged with the responsibility concerned. Under section 16A the certificate by the Minister or the public officer is final and conclusive of the matter.  

    There does not seem to be any requirement to justify the suppression of the document on the basis of the 14 constitutionally permissible restrictions like public order and national security mentioned in Article 10 clauses (2) and (4) and Articles 149 and 150.  

    In a prosecution, the content, nature or importance of the information is irrelevant. The damage it causes to the public interest is irrelevant to the question of guilt but may influence the penalty.  

    If a trivial piece of information is classified in accordance with the law, then it is not allowed to be received, retained or released without prior authorisation!  

    For 35 years we have operated as if the Government has unfettered power to withdraw any information or document from the public domain and to prosecute anyone violating the Government’s absolute power to put the lid on any information.  

    It is submitted that this is not the constitutional scheme of things. All citizens have a right to free speech. This right includes the right to retain and to communicate information in one’s possession unless such retention etc are forbidden by a law enacted in accordance with the Constitution’s guidelines.  

    In this country, Parliament is not supreme. Parliament and the executive are authorised to restrict free speech only on the criteria permitted by the Constitution. These criteria are explicitly mentioned in Articles 10(2), 10(4), 149 and 150. They relate to public order, national security, incitement to an offence, etc.  

    To the extent the OSA permits a document to be suppressed simply because an authorised officer chops it with the words Sulit or Terhad, without any due consideration of the constitutional criteria, then some sections of the OSA may well be unconstitutional.  

    It is an accepted rule of interpretation that if a law is so open ended that it can encompass ultra vires (illegal) as well as intra vires (legal) actions, then the law can be struck down by the courts as beyond the legislature’s competence.  

    Some parts of Section 2A of the Schedule are notoriously open-ended. They confer a blank-cheque power on the executive to classify documents as secret, thereby triggering the mandatory criminal provisions of the law.  

     

    Who may classify? 

    Under the Act, a federal Minister, a state Mentri Besar or Chief Minister and any public officer (who is appointed under section 2B by the Minister or Mentri Besar or Chief Minister by a certificate under his hand) may order a document to be classified. The public officer so appointed is not required to possess any minimum seniority or rank. 

    Under section 2C the order to de-classify can be initiated by a federal Minister, an MB or CM, a public officer charged with any responsibility in respect of any Ministry, Department or any public service and the principal officer in charge of the administrative affairs of a state. 

     

    Applicability 

    The prohibitions of the law apply to all persons – citizens, non-citizens, officials in the public service, those to whom information was entrusted in confidence, government contractors whether past or present, former government employees, all directors of companies, corporations, and every member of a partnership or firm dealing with the Government.  

    Under section 25, the law operates extra-territorially. Offences committed under the Act may be prosecuted locally even if the facts constituting the offence occurred abroad. 

     

    Defences 

    Public interest and honourable intention, e.g. to expose corruption, are not permitted defences. Whistle-blowers are not protected. An accused is not shielded even if he was an innocent recipient. He is culpable even if the information was already public because others had violated its confidentiality.  

    MPs are protected for disclosures during parliamentary proceedings but liable like any other person for disclosures outside parliamentary proceedings.  

    The available defences depend on the section under which the prosecution is commenced. It may be possible to argue that there is no proof that the classification was done by an authorised person. There is absolute immunity against the OSA during parliamentary and judicial proceedings. 

     

  • The writer, Dr Shad Faruqi, is Professor of Law at UiTM.  

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