FEBRUARY 9 — In the case of Minister of Energy, Water and Communication & Anor v Malaysian Trade Union Congress & Ors [2013], a case involving an application for judicial review, the Court of Appeal had occasion to consider the Official Secrets Act 1972 (Act 88).

Court of Appeal Judge Zaleha Zahari (as she then was), who delivered a majority judgment, explained the Act as dealing with the prevention of unauthorised disclosure of official secrets and created offences for any such infringement.

The term “official secrets” is defined by Section 2 to mean “any document specified in the Schedule and any information and material relating thereto and includes any other official document, information and material as may be classified as ‘Top Secret’, ‘Secret’, ‘Confidential’ or ‘Restricted’, as the case may be, by a Minister, the Menteri Besar or Chief Minister of a State or such public officer appointed under Section 2B.

The documents specified in the Schedule are:

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  • Cabinet documents, records of decisions and deliberations including those of Cabinet committees;
  • State Executive Council documents, records of decisions and deliberations including those of State Executive Council committees;
  • Documents concerning national security, defence and international relations.

The above documents can only be disclosed if they had been declassified under Section 2C which states that a Minister or public officer charged with any responsibility in respect of any Ministry, department or any public service “may, at any time, declassify any document specified in the Schedule or any official document, information or material as may have been classified and upon such declassification, the said document, information or material shall cease to be official secret”.

According to the learned appellate judge, the well-established principles on the matter have been expounded by the Court of Appeal in See Kok Kol @ See Liong Eng v Chong Kui Seng & Ors [2009] where Court of Appeal Judge Low Hop Bing referred to the case of Datuk Haji Dzulkifli bin Datuk Abdul Hamid v Public Prosecutor [1981]. In the latter case, Federal Court Judge Salleh Abbas (as he then was) said:

“If the originator or the owner of the document treats it and the information contained in it as an official secret and clearly marks it and keeps it as such, it is not open to anyone to regard it as otherwise; and the law must give protection to such document or information even though it contains information generally known to the public.”

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In that case, the accused had been convicted on the offences of receiving secret official information and a secret official document and communicating them. The allegation was that the accused received a copy of a letter from the then Chief Minister of Sabah, Tuan Haji Mohd Fuad Stephens to the then Minister of External Affairs, Tengku Ahmad Rithauddeen, which the accused knew to be an official secret document and that he had communicated the document to other persons.

The letter was dated May 11, 1976, and carried a reference “S303/571/86” and had the signature of the Chief Minister. It did not carry the word “Rahsia”.

Police investigation was commenced pursuant to a report lodged by the then Sabah State Secretary, resulting in the accused being charged for, among others, directly and indirectly communicating the information in the letter or alternatively the said letter contrary to Section 8(1)(i) of the Act.

The learned trial judge found the accused guilty of all the principal and alternative charges and so convicted him on all these charges.

On appeal to the Federal Court, the convictions on the principal charges were set aside, but the convictions on the alternative charges were confirmed. The sentences were also reduced.

The main point raised in this appeal insofar as the convictions were concerned only dealt with the question whether the information or document was secret.

‘The law must give protection to such document or information even though it contains information generally known to the public.’ — Bernama pic
‘The law must give protection to such document or information even though it contains information generally known to the public.’ — Bernama pic

Evidence was led to show that the copy of the letter was itself a reproduction from the carbon copy of the letter which was marked “Rahsia” and kept in the confidential file of the Sabah Chief Minister’s Department, whilst the original copy was sent to the Minister of External Affairs in Kuala Lumpur and likewise kept in the confidential file of the Ministry.

The Sabah State Secretary, who testified as a witness, explained the system of marking and classifying the files of the Sabah State Government. He said the letter “S” preceding the file number stood for the word “secret”. He said that after the original copy was dispatched, the carbon copy was retained in a secret file. The letter and the file were not accessible to anyone, their existence being known only to the Chief Minister and possibly to seven members of the clerical staff who might have handled them. The State Secretary called upon all of them to explain the leakage, but none could give any clue. Nonetheless, his evidence showed how careful was the step taken by him to preserve the secrecy of the letter.

The learned Federal Court Judge Salleh Abas, who delivered the judgment of the Court, said:

“In our view, a document does not lose its status as a secret document merely because some unauthorised person or persons stole it, reproduced a copy and sent the copy by post to the appellant anonymously; nor does it lose its secrecy just because the letter happens to contain information which is already known to the public.

“If this argument is acceptable, it makes no sense of the secrecy of examination papers and even our draft judgments before they are released, as the information contained therein can openly be found elsewhere, in text books, periodicals, magazines and newspapers. In our view such a contention is totally unacceptable.

“The law must give protection to such document or information even though it contains information generally known to the public.”

Based on the above, it is the originator or owner of a document who knows whether the document is an official secret. It is they who must lodge a police report if the protection that the law gives to such document has been contravened.

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