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
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
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?