I rise to take part in the debate on the Official Secrets (Amendment) Bill 1983 with a great sense of anguish and sorrow. I have two reasons for this.
Firstly, following the debate on the Official Secrets (Amendment) Bill 1983 yesterday, it is clear that the Barisan MPs who has spoken and who had tried to interrupt the speeches of the DAP MP for Kepong, Dr. Tan Seng Giaw, and the DAP MP for Sungei Besi, Chan Kok Kit, did not have a faintest clue as to what they were talking about for they did not know what is meant by ‘official secrets’.
I am indeed shocked that even veteran MPs like the MP for Kuala Terengganu, the MP for Pasir Puteh, Mohd. Wan Najib, do not know the meaning of ‘official secrets’ although I could excuse the others like the MCA MP for Menglembu, Yew Foo Weng, who can only follow his UMNO seniors when they all quoted Standing Order 36(1) which prohibited irrelevancy in debates to try to stop Dr. Tan Seng Giaw and Chan Kok Kit from talking about the cult of secrecy of the government.
The Barisan Nasional MPs do not have the slightest clue that the Official Secrets (Amendment) Bill is the most important Bill that has come up to the House in this Parliamentary meeting, because of its far-reaching repercussions on the type of government we are to have in Malaysia.
The Barisan Nasional MPs could only mindlessly arm themselves with Standing Order 36(1) in hope of shutting up the DAP MPs, when in the debate on the Post Office (Amendment) Bill two days ago, 95% of what the Barisan MPs spoke on the Bill was totally irrelevant!
It is indeed a day of shame and tragedy when the august Parliament, presented with the Official Secret (Amendment) bill, could find no Barisan MPs as yet who spoken who understood what is the meaning of ‘Official secret.’ How can they understand the vast implications of the Bill in terms of the political, economic, cultural, educational and social rights of all Malaysians, as well as the very essence of Parliamentary democracy, if they do not understand the meaning of ‘official secret’ in the first place? They could only vote blindly for whatever the government has presented to them. I say this is a great shame to Parliament and MPs as a whole and I would even suggest to the Deputy Minister of Home Affairs to postpone further discussion of this Official Secrets (Amendment) Bill until the Barisan Nasional MPs have been given a special briefing about the meaning of ‘official secrets’, the ramifications and implications of this Bill, for otherwise, they could only vote blindly and mindlessly! The Malaysian Parliament would become a laughing stock not only in Commonwealth Parliamentary history but World Legislative history when it passes the Official Secrets (Amendment) Bill when all the MPs who voted for it do not even know the meaning of ‘official secrets’.
Restrictive Provisions
The second reason why I feel a deep sense of anguish and sorrow is that the Government has apparently taken a policy decision to tighten the Official secret Act 1972 which could only lay the basis for a highly autocratic, undemocratic and unaccountable Government in the rest of the 1980s and the 1990s.
Before the Government presented the Official Secrets (Amendment) Bill to the House, I would have expected the Government to conduct a wide-ranging review of the Official Secrets Act 1972 and invite representations from all interested groups who have concern about a more open and democratic government, like political parties, the mass media, the trade unions, the academicians, opinion groups like Aliran, Selangor Graduate’s Association, the Bar Council, student organizations and a whole spectrum of the Malaysian public to give their views, with a view to remove the highly restrictive provisions which militate against a democratic and open government.
But the Government has done the opposite. Instead of amending the Official Secret Act to liberalise its provisions, and in particular secretion 8 of the Official Secrets Act 1972, the Government has decided to entrench Section 8 by the provision of a new Section 7A and Section 30A. I will come to these two new proposed sections later in my speech.
Let me state at the outset that the DAP fully supports legislation to deal with spied, traitors, and others who intent to do harm to the country. For this reason, the DAP supports an amendment to Section 3 of the Official Secrets Act to increase the penalties for spying. We in the DAP are Malaysian nationalist and patriots and would be second to none either inside or outside this House in our love for the country and dedication to defend the integrity and sovereignty of Malaysia.
However, this does not mean that we should mindlessly agree to whatever the Government proposes. For instance, I have reservations about the proposed amendment to Section 3 although we agree in principle to the increase of penalties for spying. Under the existing law, the penalties for spying is a maximum jail sentence of 14 years or a $20,000 fine or both. With the present amendment, the penalties for spying shall be a mandatory life sentence.
FAVOURED SPY
Surely, however heinous the crime of spying, there are various degrees of gravity of the offence, and the judge trying the cases should be given the discretion to impose differential sentences for offences of different gravity. I would suggest that instead of amending Section 3 to provide for a mandatory life sentence for spying, it should be a maximum life sentence instead.
Surely, there must be a difference in sentence between a Master-Spy and a Mini-Spy! And there is justice if a favoured spy like the former spy political secretary to Dr. Mahathir Mohamed when he was Deputy Prime Minister, Siddiq Ghouse, who was an agent for the KGB, could be spared prosecution for being a spy under the Official Secrets Act? Are we going to have two categories of spies in Malaysia, the Siddiq Ghouses who would be spared prosecution and the mandatory ‘life sentence’, and the non-Siddiq Ghouses who would spend the rest of their lives in jail because of their political party affiliations?
Or could the Government give assurance that whatever reaction it has for detaining Siddiq Ghouse instead of prosecuting him, Siddiq Ghouse would not be spared prosecution as a spy once the reason for detaining him under the ISA ended. Otherwise, the Minister of Home Affairs would be usurping the criminal jurisdiction and functions of the Courts.
In this connection, I was surprised to hear yesterday the speech of the MP for Kemaman calling for the stripping of citizenship of Malaysians who become citizen by way of naturalization or registration and other terrible punishments for being spies and traitors to other countries. I hope that no one seriously entertain any though of suggestion that different treatment should be meted out to spies depending on whether they are Malays or non-Malays, for otherwise Malaysian nation building is indeed going to be a long, long haul.
CATCH-ALL PROVISION
Most people, and apparently all the Barisan MPs who has spoken or attempted to interrupt DAP MPs yesterday, think that the ‘official secrets’ are about protesting the nation’s security against foreign spies and assume that the Official Secrets Act which enforce the secrecy is for everybody’s benefit. But this is true only a miniscule part of the ‘official secrets’ protected by the Official Secrets Act, for the overwhelming bulk of these ‘official secrets’ has nothing at all to do either with defence secrets essential to national security or even sensitive information affecting economic security or foreign relations.
As it stands under the Official Secrets Act 1972, all government information or official information are ‘official secrets’ and are protected as if they are as important as military contingency plans in the event of an aggression, so long as they are not authorized to be disclosed, whether it be information about the Prime Minister’s $20 million Residence, the incompetence of Bank Negara and the Bumiputra Malaysia Finance to squander away some $2,500 million of public funds, hospital negligence leading to unnecessary deaths, the incidents of brutality, assault and victimization in the Pusat Seranti Tampin Rehabilitataion Centre of drug addicts, or any item of government information however trivial and insignificant, as the amount of stationery ordered by a department or the amount of postage stamps used by a government office.
The use of criminal law to restrict the publication of matters of public interest when public interests in fact demand their disclosure, is not only undesirable in principle, smacking of censorship and something to be kept to an absolute minimum, but runs counter to the whole concept of an open, democratic and liberal administration.
I am referring in particular to Section 8 of the Official Secrets Act 1972, which is based on Section 2 of the United Kingdom Official Secrets Act 1911
In 1971 a special committee, known as the Franks Committee, was appointed by the British Home Secretary to “review the operation of Section 2 of the Officials Secrets Act 1911 and to make recommendations”.
This is what the Franks Committee had to say about Section 2 (which is basically our Section 8):
“The main offence which Section 2 creates in the unauthorized communication of official information (including documents) by a Crown servant. The leading characteristic of this offence is its catch-all quality. It catches all official documents and information. It makes no distinctions of kind, and no distinctions of degree. All information which a Crown servant learns in the course of his duty is ‘official’ for the purpose of Section 2, whatever its nature, whatever its importance, whatever its original source. A blanket is thrown over everything; nothing escapes” (Para 17 – Franks Committee Report).
And in Paragraph 88:
“We found Section 2 a mess. Its scope is enormously wide. Any law which impinges on the freedom of information in a democracy should be more tightly drawn. A catch-all provision is saved from absurdity in operation only by the sparring exercise of the Attorney-General’s discretion to prosecute. Yet the very width of this discretion, and the inevitably selective way in which it is exercised, give rise to considerable unease. The drafting and interpretation of the section are obscure. People are not sure what it means, or how of operates in practice, or what kinds of action involve real risk of prosecution under it.”
The Frank Committee Report said that although Section 2 is short, it is in very wide terms and highly condensed. It covers a great deal of ground and it creates a considerable number of different offences. According to one calculation, over 2,000 differently worded charges can be brought under it. It is obscurely drafted and to this day legal doubts remain on some important points of interpretation.
SUPER CATCH-ALL
These criticisms and strictures on Section 2 of the British Official Secrets Act 1911 apply equally to Section 8 of our Official Secrets Act 1972, for it is based on the British Act.
However, just like Section 2 of the British Act, our Section 8 of the Official Secrets Act is not confined to government servants in its ambit of operation. Section 8 specifies five situations in which other person are also caught:
- Government contractors and their employees are treated in the same way as government servants. Information which they learn in the capacity counts as ‘official’ for the purpose of the section, and the unauthorized disclosure of such information is an offence. The nature of the information is irrelevant;
- Any person to whom official information is entrusted in confidence by any public officer is prohibited from making an unauthorized disclosure of that information;
- Any person in possession of official information “which had been made or obtained in contravention” of the Official secrets Act is prohibited from making any unauthorized disclosure of that information. The provision makes it possible to have a “chain” of unauthorized communications, with each link in the chain committing an offence by passing on the information. In effect, the unauthorized handling of official information is an offence in much the same way as handling stolen goods is an offence.
- Any person coming into possession, by whatever means, of a secret official code word or pass word, or of information about a defence establishment or other “prohibited place” is prohibited from making any unauthorized disclosure of that information;
- Sub-section (2) of Section 8 goes even further, by making the mere receipt of official information an offence. It has to be proved that the recipient knew, or had reasonable ground to believe, at the time of receipt that the information was communicated to him in contravention of the Official Secrets Act. He can defend himself by proving that the information was communicated to him contrary to his desire. But the offence itself under Section 8(2) consists of simple receipt. It is immaterial whether the recipient subsequently passes on the information or makes any other use of it.
By Proposing a new Section 7A, the Government not only has no intention of removing the catch-all features of Section 8, it is proposing to have a Super Catch-All whereby any person who has been approached directly or indirectly to obtain for or supply that other person any official information, should immediately report to a Police Officer of rank of Inspector, or if he is a public officer to his head of department. The offence of failure to make such report is a jail sentence of up to five years or a $20,000 maximum fine or both.
This is why I had said that the Official Secrets (Amendment) Bill would lay the basis for a highly autocratic, undemocratic and unaccountable Government in the rest of the 1980s and the 1990s.
This debate in fact touches the very heart of government in the Malaysian parliamentary democracy, as to whether we want to create a more open, responsible, liberal and countable government which respects and upholds the fundamental right to know of all citizens in all matters affecting the country and people.
The Official Secrets Act 1972 and the present batch of amendments will have the capacity of turning Malaysia into the most secretive government in the whole Commonwealth.
SECRETIVE GOVERNMENT
A secretive government is by its very definition an undemocratic and autocratic government. The essence of democratic government lies in the ability of the people to make choices: about who shall govern; or about which policies they support or reject. Such choices cannot be properly made unless adequate information is available. This is imperative as modern government has expanded until it touches all of our lives every day.
Such a secretive government does not become democratic just because once in every five years it holds general elections under conditions whereby the people are denied opportunities to intelligently exercise a free choice, through the denial of information and access to the electorate of alternative views and policies, whether through mass media control, ban on public rallies or other means whereby the cult of secrecy hiding government information from the public is effected.
As a result, we have reached a position where this august Parliament has become cut off from the realities of the Malaysian world outside. Parliament is not only failing to address the real issues which agitate Malaysians, like the $2,500 million Bumiputra Malaysia Finance and the Bank Bumiputra loans scandal in Hong Kong, the biggest financial and banking scandal in Malaysian history; or the constitutional crisis afflicting the government as the result of the Constitution Amendment Bill passed by both Houses in July and August and despite warning from the DAP, Barisan MPs show utter incomprehension when debating the carious bills presented by the government, as the present amendment bill to the Official Secrets Act.
Such a cult of government secrecy makes a mockery of parliamentary democracy, for a meaningful democratic decision-making process involves the fullest participation in the formulation of policy or laws by all interested parties and groups. What the Barisan Nasional Government is doing, as in the present amendment bill, is to exclude all other interested parties and group in the most important stage of decision making, i.e. the formulation stage, and only bring to Parliament for rubber-stamping of their decisions.
The public are not given time to consider the various legislative proposals, like the Official Secrets (Amendment) Bill, so as to have time to make their views and representations known to the Members of Parliament to guide them in their deliberations and to reflect public views and opinions. For instance, despite the grave implications of the Official Secrets (Amendment) Bill, not a single newspaper in Malaysia, let alone ordinary Malaysians, seem to be aware of the grave implications of the Official Secrets (Amendment) Bill, whereby journalists who seek official information from anyone would have to be immediately reported to the Police or his departmental head on pain of a criminal offence involving five years’ jail or $20,000 fine or both!
PUBLIC SCRUTINY
This applies to Members of Parliament as well. If I want to find out how Majuikan, of which the MP for Pasir Puteh, Mohd. Wan Najib is chairman, is faring, for I have information that under his tenure, Majuikan has become an even bigger mess and may have to be closed down, I would have to be reported to the police or to the MP for Pasir Puteh, should I speak to any Majuikan employee. Of course, Mohd. Wan Najib would support such an Official Secret Act because it would protect exposure of the incompetence, maladministration and even corruption rampant in Majuikan
This brings me to the second objection to a secretive government. When a government is more open to public scrutiny, it in fact becomes more accountable. As a result there is a greater need for it to be seen to be efficient and competent. The accountability of the government to the electorate, and in deed to each individual elector, is the corner-stone of democracy and unless the people are provided with sufficient information, accountability disappears.
We would have been able to do away with a lot of inefficiency, and incompetence in government, as well as corruption which breeds on administrative delays, if the glare of public scrutiny is constantly brought to bear on the government departments, like the land offices, the road transport departments, etc. We would have been able to check the frequency in the colossal waste of public funds as in the BMF’s $2,500 million loans scandal in Hong Kong, the $250 million Kuantan Port scandal which cracked even before it opened; the $20 million Prime Minister’s Official Residence in a time of recession and economic belt-tightening if there had been greater accountability through access by MPs and the public to official data and information.
In fact, the cult of secrecy of government in Malaysia is being taken to such a ridiculous length that some eight years after the establishment of a special committee to inquire and make recommendations about the Rent Control Act, a matter which deeply affects the poor and low-income Malaysians who cannot afford their own houses, nobody knows what has happened to the Reports or what is in the Report. In this regard, I must congratulate the Minister for Housing and Local Government, Datuk Neo Yee Pan, for establishing the all-time record of ‘a hen that could not lay an egg’, in being unable to make public the report to take action to relieve the grave problems faced by tenants all over the country. I would be committing a criminal offence under the Official Secrets Act if I reveal what is in the report.
CORRUPTION
The third objection to a secretive government is that the cult of government secrecy provides a protective cover for inefficiency, negligence, maladministration or even malpractices and corruption. When I asked during question-time why the Anti-Corruption Agency in its two years under the 2M administration pledged to a war against corruption has only arrested ‘small fishes’ and failed signally to net the ‘ikan yus’, the Deputy Minister in the Prime Minister’s department, Encil Radzi Sheikh Ahmad, asked me to produce the evidence for the ACA to act on.
But is Encik Radzi Sheik Ahmad really serious in welcoming the DAP’s co-operation to expose the corrupt in high political places? Does he not know that for exposing the corruption of the ‘ikan yus’, I would be committing a criminal offence under the Official Secrets Act which is punishable with a maximum of 7 years’ jail or a $10,000 fine or both, for I must get ‘official information’ involving such corruption which by definition is an ‘official secret’ under the Official secrets Act.
Not content with the inhibition against the efforts by MPs and public-spirited Malaysians against graft and corruption in high political places, Encik Radzi has now come to the House to create a new offence under the new Section 7A whereby the person from whom I seek information about the corruption of ‘ikan yu’ so that I could be pass them to the ACA must immediately report to a police officer of the rank of Inspector and above or to his department head, or he faces criminal sanctions of five years’ jail or $20,000 fine or both.
How can the Barisan Nasional Government expect the people to believe that it is committed to the all-out war against corruption and graft, regardless of rank or status or political influence, when the Government is amending the Official Secrets Act to make it an offence for MPs or any public-spirited Malaysian to secure information about such corruption to help the ACA, which appears to be so helpless and impotent?
Or is the Government prepared to introduce during committee stage amendments to the Official Secrets Act to provide that where ‘official information’ is secured for the purposes of exposing corruption, malpractice, extravagance or for any other purpose in the public interest of the country, it shall be valid defence either under Section 8 or the new Section 7A of the Official Secrets Act?
I have a sneaky feeling that the Deputy Minister in the Prime Minister’s Department, Encik Radzi sheikh Ahmad, himself is not aware of the grave character of the amendments he is introducing to the Official Secrets Act, or he would not have suggested that I provide information about corruption of ‘ikan yus’ to the ACA, which is an offence under the OSA. Or he is trying to trap me to be prosecuted again under the Official Secrets Act for the second time?
I had the dubious distinction of being the first person to be arrested and charged under the Official Secrets Act in 1978, not because I was doing a Siddiq Ghouse, but because I had tried to perform a public duty to draw public attention to the excessive expenditure involved in agreeing to pay $166 million for four Swedish-made SPICA-M Fast Strike Crafts. Although the cost of the four SPICA-Ms was subsequently reduced to $157 million, a new saving of $9 million, I did not expect government appreciation, but it is indeed the ‘unkindest cut of all’ to be arrested and prosecuted as if I was a spy or traitor.
Basically, the charges against me under the Official Secrets Act were based on the following provisions of the Act:
“Section 8(1): If any person having in his possession or control … any information which – …
(c) has been made or obtained in contravention of this act;
…
does any of the following –(1) Communicate directly or indirectly any such information … to any person other than a person to whom he is duly authorised to communicate it or to whom it is his duty to communicate it; or
…(iv) failed to take reasonable care of, or so conducts himself as to endanger the safety or secrecy of, any such information … he shall be guilty of an offence punishable with imprisonment not exceeding seven years or a fine not exceeding ten thousand dollars, or both such imprisonment and fine.
(2): if any person receives any … information knowing or having reasonable ground to believe, at the time when he receives that … the information is communicated to him in contravention of this Act, he shall, unless he proves that the communication to him of the … information was contrary to his desire, be guilty of an offence punishable with imprisonment of seven years or a fine not exceeding ten thousand dollars or both such imprisonment and fine ”
PUBLIC INTEREST
The Franks Committee Report had said that the “catch-all provision of Section 2 (i.e. Section 8 of the Malaysian Act) is saved from absurdity in operation only by the sparing exercise of the Attorney-general’s discretion to prosecute.”
In my case, Public Prosecutor v. Lim Kit Siang, is the Government able to convince the Malaysian public that the Attorney-General had exercised his function as the Senior Government Law Officer impartially in accordance with the balance of public interest involved, without allowing political party considerations to intrude into his judgement?
Then why was I prosecuted and not the Far Eastern Economic Review and ASEAN Defence Journal which also carried separately articles on the purchase of the four SPICA-M Fast Strike Crafts?
Or could the Attorney-General’s prosecution be justified by the gravity of the ‘official secrets’ disclosed? The Federal Court, when hearing the appeal, had this to say:
“We do not hide from ourselves the fact that the details of the fire control system and of the engines installed in and the capability of the craft are of possible utility to an enemy which seeks to destroy our naval defence and if such information had tended to endanger or had the effect of imperilling the security of the country, we would have interfered by substituting a sentence of imprisonment for any fine that might have been imposed. But one has to be realistic and see the case in its correct perspective and in the context of prevailing conditions. We could not but wonder whether the details provide in calling for tenders for the guns, missiles and launchers, available to anyone who applied for a tender form, had not largely removed the veil of secrecy from the ships’ armaments. Also no one has suggested in any way that the information in the charges was useful to such enemies as this country has at the moment or in the foreseeable future. Neither has anyone submitted that the real intention or the effect of such revelation was to benefit the enemy or endanger the security of the country. This is particularly true of the disclosure of the tender exercise and the financial provisions of the final contract.”
OPEN GOVERNMENT
We are entitled therefore from my case to ask whether the Public Prosecutor whose consent is required before prosecution under the Official secrets Act could be initiated is aware of the great distinction between the interests of the nation and those of the Government, and between the interests of the nation and those of the Government, and that Section 8 and the new Section 7A is open to gross abuse as the protection for all Government information could be used to protect the political interests of the Government.
The DAP recognise the need for the Government to keep certain vital matters of defence, national security, the economy and foreign relations secret but the overwhelming bulk of government information are not in this category. There is a great urgent need to improve the effectiveness of democratic control by ensuring not only greater openness of government, but also a loosening of control of information at all levels in the machinery of government.
There is an inevitable tension between the democratic requirements of openness and the continuing need to keep some matters secret, but our Official Secrets Act is completely one-sided in imposing a total blanket of secrecy on all government information reinforced by criminal sanctions, unless they are authorised to be disclosed.
The 2M Government of Dr. Mahathir Mohamed and Datuk Musa Hitam started their administration with stirring pledges for an open and liberal government. They should then introduce legislation to amend the Official Secrets Act to encourage such openness and liberalism, especially in encouraging investigative reporting to enable the Fourth Estate to play its full role as another important institution of a parliamentary democracy.
The introduction of new Section 7A is therefore a complete repudiation of the 2M Government’s commitment to an open, liberal and tolerant society, for it would add another weapon in the government arsenal to cow and curb press freedom. It is public knowledge that the press in Malaysia have often been threatened with the use of the Official Secrets Act to keep not only militarily sensitive information from being reported, but also politically unpleasant or embarrassing news as well from public knowledge.
I seriously suggest that the Government withdraws the present amendment bill to the Official Secrets Act to allow full-scale public discussion and debate on the whole question of the type of open government we should have in Malaysia, or refer this bill to a Select Committee for a more thorough deliberation.
I suggest that the Official Secrets Act should be repealed and be replaced by two Acts. There should be an Espionage Act to deal with spies and espionage activities to guard the security of the nation and the safety of the people, employing criminal sanctions to protect military, security, economic and other vital information.
As for all other government information not protected in Espionage Act, we should adopt a completely new attitude from the Official secret Act which stipulates, quite simply, that everything shall be secret. A second information law to deal with the rest of government information, which could be called Official Information Act, should adopt a totally different attitude by stipulating that all government information shall be open and make exceptions such as Cabinet minutes, other confidential government documents, personal information of citizens in possession of the Government, etc.
Such an Official Information Act should require the Government to make records, except those specifically excluded by the Act, available to the public so that there is democratic openness of government in Malaysia
POLICE STATE
Finally, I have given notice to move at Committee Stage an amendment to Section 8 of the Bill which provides for a new Section 30A in the Official Secrets Act to empower the Minister to make regulations to carry out the purpose of the Official Secrets Act, including to prescribe the manner of classifying information, documents and other materials; the manner of communication of official information and to provide for offences and penalties not exceeding a fine of five thousand ringgit or imprisonment not exceeding one year for the contravention of any provision of the regulations.
In view of the highly undemocratic and autocratic nature of the Official Secrets Act in imposing a total clamp on government information, which threatens the whole basis of a democratic, open, liberal and accountable government, Parliament must be jealous of surrendering any powers to the Executive to empower it to turn Malaysia into a highly secretive police state.
Parliament must be vigilant of the rights of Malaysians in conformity with the democratic tradition we want to nurture by requiring the Government to report and explain to Parliament as to how the operation of the Official Secrets Act is stifling the promotion of a democratic, open and accountable government.
If we enact the proposed new Section 30A, we are in fact empowering the Minister concerned by way of regulations to extend the Official Secrets Act in any way he likes, without effective Parliamentary check.
In view of the fundamental rights of Malaysians which are threatened by the Official Secrets Act and the regulations in new Section 30A, I am proposing a new Section 30B to provide that these regulations should not come into force unless they are approved by the Dewan Rakyat.
The requirement for an affirmative resolution before these regulations come into force would provide an opportunity for Parliament to review the proposed regulations, and all MPS who conscientiously discharge their responsibilities as a duty not merely to the political party he belongs to, but also as a duty to the people and to God, must support this proposal.
(Speech by Parliament Opposition Leader, DAP Secretary-General and MP for Kota Melaka, Lim Kit Siang in Dewan Rakyat on the Official Secrets Amendment Bill 1983 on October 19, 1983)