Time to replace Official Secrets Act


A few days ago, the Sarawak Report published an article claiming to be in possession of a leaked Auditor General’s (AG) report on the troubled state-owned company, 1MDB.

The AG’s report has been classified under the Official Secrets Act (OSA), the Act governing official secrets and information in this country.

In response to the alleged leak, Communications and Multimedia Minister Datuk Seri Dr Salleh Said Keruak called for a police investigation to determine how news portal Sarawak Report obtained the document.

He said the investigation had to be undertaken urgently and expeditiously to prevent further leakages of official secrets documents which ‘may put the country’s security in jeopardy.’

Meanwhile, the Inspector General of Police will investigate Sarawak Report under the OSA if it is found to have published classified contents.

If indeed Sarawak Report has published a document classified under the OSA, the people behind the blog would certainly have committed several offences under the OSA.

A person who obtains an official secret would commit an offence if he or she retains in his or her possession or control any such official secret when he or she has no right to retain it.

It is also an offence if the said person communicates directly or indirectly any information under the OSA to any person other than a person to whom he or she is duly authorised to communicate it or to whom it is his or her duty to communicate it.

According to the OSA, ‘official secrets’ include Cabinet and State Executive Council (EXCO) documents and records of decisions and deliberations of Cabinet and State EXCO.

Documents concerning national security, defence and international relations are also automatically classified as official secrets under the Act.

The Act further empowers a Minister, Mentri Besar or Chief Minister, or any public official appointed by a Minister, Mentri Besar or Chief Minister, to classify any information and material as ‘Top Secret’, ‘Secret’, ‘Restricted’ or ‘Confidential’, which would then make that information or material an official secret under the Act.

As such, the list of people who are able to classify information as official secret is large. This also means that there is a large amount of documents which are classified as official secret.

The Act does not require the Minister, Mentri Besar or Chief Minister, or any public official appointed to justify why the document should be an official secret.

In other words, a person authorised under the Act to classify a document may do so for any document or information, regardless of whether there is a need or justification for the classification. The information need not relate to national security or defence.

It also means that the OSA has been used to cover up or hide negligence, mismanagement, wrongdoings or even offences within governments.

In relation to the AG’s report on 1MDB, many have questioned the decision to classify the document as official secret, when it relates to a State-owned company, not national security or defence.

It gives the perception, rightly or wrongly, that it is not in the Government’s interest for the public to have access to the report.

An archaic legislation like the OSA no longer has a place in today’s modern democracy.

The world is now moving towards a more open and transparent governments. Many countries have enacted freedom of information legislation and done away with a regime that is similar to the OSA.

That is why many have called for the abolishment of the OSA. In its place, there should be legislation to promote transparency and accountability and the right to freedom of information for the rakyat.

That is not to say that there should be no official secrets. Information which genuinely relate to national security, defence and foreign relations can still be protected by the law.

But ‘official secrets’ must be strictly defined to cover these sort of information, not any other information which has nothing to do with national security, defence or foreign relations.

There must be a mechanism in place to ensure that any information which is classified as official secret can be justified as such; any wilful misclassification should attract criminal sanctions.

This way, the law cannot be abused for the benefit of those in power.

Shahredzan Johan

Syahredzan Johan

Syahredzan Johan is a young lawyer and partner of a legal firm in Kuala Lumpur.