Extract of Paper by Parliamentary Opposition Leader, DAP Secretary-General and MP for Kota Melaka, Lim Kit Siang, on ‘Parliamentary Privileges’ at the National Union of Journalists ASEAN Press DAY seminar on ‘Press Freedom & the Law’ at the New Straits Times lecture theatre, Kuala Lumpur on Sunday, March 16, 1986 at 10.30 a.m.
1986 Official Secrets Act amendment bill to make mandatory one-year-minimum jail sentence for all offences aims at producing a cowed Parliament and cowed Press – and should be referred to Select Committee before any debate in Parliament
Malaysian journalists have rightly been concerned about the 1986 Official Secrets Act amendment bill aimed at making all offences have a mandatory one-year minimum jail sentence.
This will dry up information and make the Malaysian press a mere government gazette. We cannot accept the explanation of the MCA Labour Minister, Datuk Lee Kim Sai, that the OSA amendment is meant for foreign journalists, for local reporters cannot escape the rigours of the new amendment.
The 1986 Official Secrets Act amendment bill represents a serious threat, not only to press freedom, but to entire system of parliamentary democracy itself.
Members of Parliament and political leaders who want to hold the government to the principle of public accountability would be seriously threatened, for with the amendments, every OSA offence takes a mandatory minimum jail sentence of one year, which will disqualify incumbent MPs from Parliament or disqualify aspiring MPs from standing for office. This is because any person who is fined more than $2,000 or jailed for one year would be disqualified from standing for elective office, and an MP so sentenced disqualified from his seat.
In 1978, I was arrested and charged on five charges under the Official Secrets Act, four under Section 8 and one charge under Section 11, in connection with my expose of the purchase price for the Swedish fast-strike craft. In the High Court, I was fined $3,000 three charges each, $5,000 on one charge and $1,000 on the last. This meant that I would have been disqualified as a Member of Parliament on four of the five charges.
On appeal to the Federal Court, the $5,000 fine was reduced to $1,500, the three fines of $3,000 each to $1,000, while the last fine maintained. As a result, I continued as a MP.
However, had I been charged under the proposed amendments, I would have been sentenced to the mandatory minimum jail sentence of one year each, if not more, and I would have been disqualified as a MP and from standing for elections.
The Courts would have no discretion under the proposed amendment to vary the sentence according to the gravity of the offence – whether it is for corrupt purposes to sell information to ‘enemies’ of the country, or out of public spiritedness to expose corruption, abuse of power or negligence.
Thus, after the passage of the proposed amendment to the Official Secrets Act, any MP or political leader who should expose say, the instant mee scandal, where a packet available at 14 cents each is sold to government at $4.90 as reported by the Auditor-General a few years ago, or publicly exposed the corruption in the $2.5 billion BMF scandal, would be convicted of revealing ‘official secret’ and sentenced to a minimum of one-year jail – and an MP would lose his parliamentary seat or while a non-MP would lose his right to stand for Parliamentary or State Assembly elections.
In the United Kingdom, there is mounting public pressure for the drastic amendment of its 1911 Official Secrets Act, on which our 1972 Official Secrets Act is modelled.
Like the UK parent Act, our Official Secrets Act is a ‘catch-all’, and the main offence which Section 8 creates is the unauthorised communication of official on formation by a Crown servant. It catches all official documents and information, and 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 purposes of Section 8, whatever its nature, whatever its importance, whatever its original source. A blanket is thrown over everything; nothing escapes.
It has been estimated that some $2,000 offences could be frames out of the ambigous and enomrously-wide language in the Act. As a result, I will call it a ‘catch-all’ and a ‘cover-all’, to protect all sorts of information about corruption, abuse of power and all forms of government wrongdoing.
In 1983, the Official Secrets Act was further amended to make it a ‘Super Catch-All and Cover-All’, creating a new offence whereby any person who did not report to the authorities that he had been approached, directly or indirectly for official information, would be liable to an offence liable to $20,000 fine or five years’ jail or both. This 1983 new offence will also be amended to have a minimum of one-year jail sentence.
The Attorney-General, Tan Sri Abu Talib, said the amendments to the OSA was necessary because the existing Act was ineffective. Since the enactment of the Act, only five persons had been charged under the Act, namely myself and P. Patto (on the same facts), former USNO Sabah Finance Minister, Dzulkifli, two journalists James Clad and Sabry Sariff.
If the Attorney-General had charged 100 persons under the Act, and 98 of them had escaped conviction, his reason would be understandable. Clearly, the record of persons charged under the OSA does not justify the Attorney-General’s claim that the existing law is ineffective- for otherwise, more should have been charged.
I regard the proposed amendment to the Official Secrets Act as the most ‘monstrous’ and draconian law in the entire Mahathir Government. If put on the statute books, it will produce not only a cowed Press, it will also produce a cowed Parliament. The principle of public accountability will die a simultaneous death with press freedom and parliamentary sovereignty
This proposed amendment must be referred to a Select Committee to get public opinions and vies, like the Select Committee on proposed law on drug traffickers, before it is presented to Parliament for debate. All Malaysian public-interest and civic organisations must make their voice heard loud and clear in opposition to this draconian and obnoxious proposal, for Malaysian politics and the Malaysian press will never be the same again after its enactment.
I propose that the informal Movement for Democracy and Justice should meet immediately on the greatest challenge to the human rights and fundamental freedoms of Malaysians since the 1981 move to amend the Societies Act.