|OSA probe a cover for gov’t incompetency|
|Except for the limited purpose of ascertaining the source of the leak of the LDP concession agreement, the move to investigate four opposition leaders under the Official Secrets Act 1972 (OSA) is pointless because it is unlikely to be followed up by prosecution, and even if it is, chances are that prosecution is also unlikely to succeed.This is because ‘official secrets’ as defined in section 2 of the OSA cover only cabinet (including its committees) and state executive records of decisions and deliberations including those of cabinet committees and documents concerning national security, defence and international relations as set out in the Schedule of the OSA (‘the defined categories of official secrets’).
The LDP concession agreement is, however, a commercial agreement entered into between government and Lingkaran Trans Kota Holdings Berhad (Litrak) for a 33-year concession and the privatisation of the Lebuhraya Damansara Puchong (LDP) highway. No matter how one slices it, it does not fall under the purview of ‘official secrets’ as defined in the OSA.
That being so, no matter how many times public officials chopped on the agreement ‘secret’, ‘confidential’, or ‘restricted’, it would not make that classification valid as ‘official secret’ falling within the purview of the OSA.
Before the OSA may be activated to protect the secrecy of a document, the document must also in first instance, by nature and circumstances, be ‘secret’ and not already known in the public domain. It is trite one can’t seek to protect something as secret information when it is already public information and not a secret.
The LDP concession agreement is not a secret document hitherto unrevealed in public domain and exclusively known only to cabinet ministers or executive councilors, MB, Litrak and solicitors who prepared it.
Litrak was listed on the back of the revenue stream calculated from 33 year concession. For its listing on Bursa Malaysia, the LDP concession agreement would have prior been disclosed to regulatory authorities like Securities Commission and Bursa Malaysia and their officers for facilitation of Litrak’s listing; for Litrak’s raising of finance, many banks, both local and foreign, and their officers had pored through this agreement.
All this means it was already in public domain where hundreds if not thousands had already seen it. So what is so secret about it that needs to be subsequently classified as ‘official secret’ under OSA for protection?
Besides, we already have a judicial precedent.
In the case of ex-Parti Keadilan Rakyat’s Youth chief Mohd Ezam Mohd Nor’s appeal to Shah Alam High Court against his conviction under the OSA, Justice K N Segara quashed his conviction proceeding.
True, prosecution at that time had sought to rely on a saving provision in section 16A of OSA which provides that ‘a certificate by the relevant minister or public officer certifying a document as official secret shall be deemed conclusive and shall not be questioned in any court on any ground whatsoever’ (Saving Clause). But the learned judge had already labeled that Saving Clause as ‘meaningless, obnoxious, draconian and oppressive’ and hence of no force and effect.
It is plain why that is so. The Saving Clause only applies if the document qualifies as an official secret within the defined categories of official secrets in the first instance under section 2 of OSA. If it does not, then the Saving Clause is not meant to be read disjunctively or in isolation in an arbitrary manner such that government officials could, on their own accord, make the document an official secret by merely classifying it as such where the OSA under section 2 and the Schedule has not contemplated it to be within the defined categories of official secrets in the first instance.
The above deals with whether a commercial agreement like LDP concession agreement is under the purview of the OSA.
There is also a question whether investigation or prosecution on basis of OSA is defensible on public policy grounds.
As I understand it, under Litrak Concessionaire Agreement, Litrak is allowed to increase the toll charges according to stated periods (RM2.10 from 2007 through 2015, and then increase to RM3.10 from 2016 to the end of the concession period) without taking into consideration the fact that Litrak had made RM80 million profit for financial year ended March 31, 2006.
Now even Tun Dr Mahathir (TDM) had admitted that the toll concession agreements were ill-conceived, the cabinet having not been particularly savvy in leaving the finer points of such agreements to be looked into by bureaucrat officials so that it turned out eventually lopsided against the government.
TDM was reported to have said, ‘The cabinet is not made up of experts. They are made up by politicians and some politicians like myself can be very stupid. What happens when you have an agreement is that the officers make the agreement and the agreement is sent to the cabinet and usually the small print is not there. Cabinet merely passes on the basis of principle. They do not really study the implication of some passages in the agreement’.
This is an admission of mistake on the government’s part. All these then suggest that public disclosure of such agreement by opposition leaders represents an opportunity to identify and rectify a mistake, which if unrectified, is detrimental to public interest.
To use the OSA to punish the opposition therefore comes across as misusing the OSA to hide government’s incompetence and to perpetuate a mistake unrectified contrary to public interest.
What more when the OSA is perceived selectively and inconsistently enforced in at least two instances.
One, when, in the name of public interest, correspondence between Malaysia and Singapore on the ‘scenic bridge’ which were properly classified as secret under OSA, were declassified after ex-premier TDM, in technical contravention of OSA, disclosed some of its contents.
Two, when disclosure of concession terms including water tariff formulae of Syabas concession agreement by Kim Eng Research recommending a ‘buy’ of Puncak Niaga’s shares in 2005 attracted no threat of OSA even though Syabas concession agreement stood and ought to stand in no better position than Litrak Concessionaire Agreement in relation to OSA’s purported protection.
Yes, all governments including the Malaysian government have secrets to legitimately safeguard against unauthorised leaks.
However, a government formed on the platform of an electoral pledge for transparency and accountability is nevertheless obliged to strike a rational balance between secrecy and openness.
This balance must be constantly adjusted according to circumstances as they unfold.
The test is, however, constant – natural security and public interest must be the central focus and benchmark to determine when it would be right to maintain secrecy under OSA (as in the case of information pertaining to national security and international relations) and when to be open and disclose it (as in the case of a commercial concession agreement, which by mistake, is lopsided against the government and hence inimical to public interest if mistake were hidden from view and perpetuated).
For the reasons stated above, any attempt to criminalise the opposition leaders under OSA whose only offence, if any, is to expose government’s incompetence and to stop the perpetuation of a mistake made, is ultimately indefensible from perspectives of both legal, technical and public policy grounds.