OCTOBER 29 — On October 27, 2016, the Speaker of Parliament Tan Sri Pandikar Amin Mulia was reported as having said, "In parliament we can say whatever and when we are debating no action might be taken, but there are certain acts like the OSA and Sedition Act.”

He was referring to speeches made by Tan Sri Muhyiddin Yassin and Datuk Seri Husni Hanadzlah. It would seem that the Speaker was of the view that the two parliamentarians had violated the Official Secret Act 1972 (OSA) and Sedition Act 1948 in the course of their speech in Parliament.

Speeches in Parliament

On October 24, 2016, Datuk Seri Husni spoke about a government with "dignity, integrity and good governance.” He discoursed on the topical subject of 1MDB, touching on the many cascading issues, i.e. transparency, public perception, the countries’ economy and corruption (pages 110-115 of the Hansard report which can be accessed here. 

On October 26, 2016, Tan Sri Muhyiddin orated on the same subject, centring on "economic governance.” In essence, he expounded on the financial mismanagements in 1MDB, and how the prime minister acted irresponsibly against the principles of good governance, transparency and accountability (see pages 96-100 of the Hansard report which can be accessed here.

Parliamentary privilege

No legal proceedings can be initiated against parliamentarians for anything they’ve said in the course of parliamentary proceedings (Article 63(2), Federal Constitution).

The only exception are matters which amount to an offence under the Sedition Act or other laws passed under Article 10(4) of the Constitution. The OSA is not a law under the said article and therefore cannot supersede a constitutional privilege.

On the Sedition Act, I am still in a state of perplexity as to how the speeches of the two parliamentarians, on good governance, is seditious.

Secrecy of cabinet meetings

Though the OSA classifies "Cabinet documents, records of decisions and deliberations including those of cabinet committees” as official secrets (see Schedule 2A to the OSA), it would be nonsensical to interpret the provision in a manner to mean that every issue discussed in cabinet meetings would be official secrets.

Cabinet would (or should) most certainly discuss all matters of national and public interest. Does that mean that we citizens cannot speak on these matterssimply because it has been discussed in cabinet? Such a proposition is farcical.

Every citizen has a constitutional right to express their views on the governmental affairs (see below).

The Speaker also opined that the said parliamentarians had breached their oath of secrecy as ministers. The oath includes an exception which states, "except as may be required for the due discharge of my duties as such.”

Prior to taking that oath, ministers must first take an oath of office and allegiance which ends with, "I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its Constitution.” The same oath is taken by parliamentarians. The real question is whether they were upholding the Constitution.

Upholding the Constitution

Firstly, it must be borne in mind that 1MDB is wholly owned by the government of Malaysia. It is trite constitutional law that the government acts as the fiduciary of the public. It must act for the benefit of the public and the general good of the nation as a whole. Governmental power should never be abused or misused (see Kerajaan Negeri Selangor v Sagong Bin Tasi [2005] 6 MLJ 289 (Court of Appeal)).

Secondly, every citizen has the right to freedom of expression under Article 10(1)(a), which includes the right to discuss governmental affairs. As the Court of Appeal had famously declared in Utusan Melayu (M) Bhd v Dato’ Sri DiRaja Hj Adnan bin Hj Yaakob [2016] 5 MLJ 56:

"...the principle clearly emanates from and is already well-entrenched in art 10(1)(a) of the Federal Constitution which guarantees the right to freedom of speech and expression, which right in our judgment encompasses the right of the citizens to discuss the government and those holding public office of the respondent’s position conducting public affairs and administration of the state.

On that score, and as public interest dictates, a democratically elected government and its officials should be open to public criticism and that it is advantageous that every responsible citizen should not be in any way fettered in his statements where it concerns the affairs and administration of the government.”

Thirdly, under the right to freedom of expression, every citizen has the right to know (see Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333 (Federal Court)). This is a necessary implication of being a democratic state.

In order for citizens to exercise sound judgment on the conduct of the Government and the merits of public policies there must be a free flow of diverse opinions and ideas. It is only with accountability and transparency can citizens make sound judgment on governmental affairs.

In short, the two parliamentarians were upholding the principles of representative and participatory democracy.

Conclusion

Perhaps the Speaker needs to be reminded of the oath he undertook when sworn into his position, which also ends with "...and will preserve, protect and defend its Constitution.” It is a shame that a person in such high and important position puts the interest of the public and the Constitution below all else.

The power that he and other parliamentarians wield are "held in trust for the people” and must be exercised for the "general good of the nation as a whole” (see Sagong Tasi). This is his primary duty.

* Surendra Ananth is advocate and solicitor of the High Court of Malaya. He is also deputy co-chairperson of the Malaysian Bar constitutional law committee.

** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.