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What’s the big secret?
Question Time
04/12/2009 The Star By P. GUNASEGARAM

The Official Secrets Act needs a serious review if we are to hold public bodies to account.

SECRECY in legislation should have just one aim – to protect vital secrets of the nation so that its security is protected at all times. It should not be used to cover up corruption, wrongdoing or incompetency in government among its officers and elsewhere.

Unfortunately, our Official Secrets Act or OSA does too much and helps to bury secrets not only of national importance and security but also many other things that the public need and are dying to hear about.

(It received much of its additional teeth, powers and prohibitions following amendments under the Mahathir administration in the 80s, including a mandatory jail sentence of one year for most offences.)

Take the fiasco over that report on the Bukit Antarabangsa landslide in Kuala Lumpur, which killed five, caused the evacuation of over 2,000, resulted in millions of ringgit in damage, caused considerable public anxiety and days of newspaper headlines.

The Selangor Government wants to make the report public but the federal government, and specifically the Works Ministry, has warned that making it public will mean a violation of the OSA and all its consequences, which are quite dire.

With that kind of threat, the state government, no doubt taking into consideration the fact that many offences under the Act carry a mandatory one-year sentence, beat a hasty retreat from its earlier stand.

The report has been handed over by the Works Ministry to the Ampang Jaya Municipal Council, which is effectively controlled by the state government, to enable it to take corrective action.

Works Minister Datuk Shaziman Abu Mansor had earlier, after consulting the Cabinet, classified the document as an official secret. Now, he insists, he will declassify it as an official secret only if the Cabinet says so.

The question on the minds of the public and especially the thousands affected by the landslide and the many more who live on hill slopes throughout the country is: What is in the report that can be considered to be detrimental to national security? And isn’t the OSA concerned with the security of the country?

Unfortunately, the answer to the second question is a clear, unequivocal no. Under the OSA, the Govern ment decides what is a national secret.

Section 2B empowers the Minister, the Mentri Besar or the Chief Minister of a state or their designated officials to classify any official document as an official secret. Section 2C also gives the power to them to declassify any document as an official secret.

Further, Section 16A effectively states that if an authorised official classifies a document as an official secret, then the courts cannot question it. That means the Government can classify any of its documents – including how many cups of coffee is consumed in a cafeteria – as an official secret.

If you should report this – no matter how minor the fact or how little it affects national security but is of great public importance – you are committing an offence under the Act. If the courts find you guilty, they have no choice but to send you to jail for at least one year.

That’s how serious it is.

With that kind of a sword dangling on a thread over anyone who dares to consider flouting the OSA, not many are likely to take that fateful step and risk spending time in prison.

What the Act effectively does is give ministers, mentris besar and chief ministers virtually unlimited avenue to keep any document detailing misdeeds not just out of the public eye but to mete out punishment to those who take the trouble to ferret out the information and report it.

The Bukit Antarabangsa landslide report is not the first to have been classified a secret. It is a manifestation of the draconian powers under the OSA to stop the dissemination of legitimate information, which in no way jeopardises the security of the country, to the public.

But perhaps we don’t know enough about this and other cases; perhaps there is something in it that does. In that case, the least the Government can do is to explain to the public, in general terms if necessary, how it will. But we doubt it – it looks like a matter of expediency. If it is embarrassing or lays the blame on some people, better to just classify it as a secret.

It is clear as day that the OSA is outdated, outmoded, oppressive and positively hinders and sometimes completely obstructs the flow of needed information to the public and to even law enforcement agencies which can take action based on these reports against culprits.

There have to be major changes made to the OSA if public bodies are to be held to account and to explain their actions. Otherwise, too many things would be classified as secret to avoid their public disclosure and discussion.

The legislation should instead focus on matters that are concerned with the security of the state – not its administration by any government. Only a national security body should be given the power to classify a document as secret. That decision should be subject to the review of the courts.

Mandatory sentence requirements should be repealed and the power returned to the courts to decide the quantum of punishment in secrecy cases.

And, to promote accountability and ensure that the public have access to all information that they are reasonably entitled to – and that should include a report on the causes of the Bukit Antarabangsa landslide – there should be a Freedom of Information Act.

Improving public governance is also about enabling relevant information about how things are governed to reach the public.

> Managing editor P Gunasegaram has great difficulty conceiving of a situation where a report on the causes of a landslide is an official secret. Was a foreign hand involved?


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