The Unprotected Whistle Blower Protection Law
Over the past few months, the 1Malaysia Development Berhad (1MDB) issue has received a great amount of attention from the different backgrounds in Malaysian society.
The entire saga of 1MDB was heading towards the end with the culprit almost identified after the former Premier Tun Dr Mahathir and several opposition leaders including Non-Governmental Organization (NGOs) relentlessly criticised the Malaysian government over the operation of the debt-ridden company.
The greater highlights by online media in Malaysia and beyond has put the company and the government in a defenceless state.
However, the story now seems to be prolonged when the issue has been dragged to another episode to bring the show towards a different ending. Instead of having the case probed into transparently by the authorities, they are now more interested to identify and criminalize the whistle blowers. As far as the matter is concerned, the authorities claimed the action is for the sake of upholding Official Secrets Act 1972 -Act 88 (OSA 1972).
The explicit example of statement from the Inspector General of Police Tan Sri Khalid Abu Bakar that “police will investigate the leak of confidential documents pertaining to Lembaga Tabung Haji’s purchase of land from 1Malaysia Development Berhand (1MDB) under the Official Secrets Act (OSA)” had spoken for itself.
Official Secrets Act
Official Secrets Act 1972 was enacted to replace the Malay States Official Secret Ordinance 1950 and based on UKs OSA 1911 and 1920. It was originally intended to protect the government secrets on the grounds of national security.
After more than 40 years in existence, the public view the legislation as nothing more than a shield to refrain the people from accessing any information relating to improper action or misconduct of the government.
Worse still, the legal definition of official secrets itself is not precise. Section 2 of OSA 1972 defined official secret as “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;”
Instead of putting the limit only on the documents that would pose a serious and demonstrable risk to national security, the act stipulated a general term reflecting that any document can be classified as secret. Furthermore, the classification of any document as secret can be made by the appointed public officer without any safeguard against unnecessary and improper classification.
Section 16A of OSA 1972 stated that “A certificate by a Minister or a public officer charged with any responsibility in respect of any Ministry, department or any public service or the Menteri Besar or the Chief Minister of a State or by the principal officer in charge of the administrative affairs of a State certifying to an official document, information or material that it is an official secret shall be conclusive evidence that the document, information or material is an official secret and shall not be questioned in any court on any ground whatsoever.”
High Court Judge Justice K N Segara in the case of Mohammad Ezam Mohd Nor v. PP had a critical view on the provision.
In this case, the judge had held that: “The provision of s. 16A of the Act that a mere certification would render conclusive any official document as official secret is inconsistent with the interpretation of official secret in s. 2 of the Act. Section 16A appears to be creating a new category of official secret and making meaningless the official secret under s. 2. A provision such as s. 16A is obnoxious,draconian and oppressive. Section 16A is, therefore, void to the extent it is in conflict with s. 2 on the interpretation of official secret.”
Moreover, this provision has put the government less accountable to the public when the public will easily be criminalized if they intend to be a watchdog by scrutinizing certain documents including transactions and concession agreements that are related to the interest of the people.
Having used the OSA 1972, it is contrary to the spirit of democracy where the government should be answerable to the people since the formation of that particular government is from the people’s choice. It is neither the government to decide everything without any concern from the people, nor the people to surrender everything to the government to decide whatever deemed proper.
One illustrated example is when the Minister defended a toll hike as unavoidable as it was an expressed condition in the concession agreement between the Government and highway concession companies. As far as the matter was concerned, the public should have had the rights of information to exercise check and balance on any conduct by the government since the toll hike affected the public who used the facility. But, what is the mechanism for the people to monitor the conduct of the government if the concession agreement is classified as secret under Official Secrets Act?
Whistle-blower Protection Act 2010
Besides, the statement made by the IGP reflects the Official Secrets Act 1972 as paramount and it prevails over other statutes including legislation concerning the protection of the whistle blowers.
In June 2010, the Parliament had passed
the Whistle blower Protection Act 2010-Act 711 (WPA 2010) with the objective, as enshrined in the act, to combat corruption and other wrong doings by encouraging and facilitating disclosures of improper conduct in the public and private sector, and to protect persons making those disclosures from detrimental action.
Indeed, the Whistle blower protection is one of the Malaysian Government’s efforts towards tackling corruption and promoting good governance under Government Transformation Programme (GTP) with the objective to give protection to the whistle-blower in the form of confidentiality of their information, immunity from civil and criminal action and protection from detrimental action being taken against them.
However, the protection has its own limitations, particularly when it clashes with laws that may criminalize the whistle-blower i.e. the Official Secrets Act 1972. Section 6 (1) of WPA 2010 stated that “A person may make a disclosure of improper conduct to any enforcement agency based on his reasonable belief that any person has engaged, is engaging or is preparing to engage in improper conduct: Provided that such disclosure is not specifically prohibited by any written law”.
To make it clear, the whistle blowers, either public servants, non-profit organisations or individuals – will not be allowed to reveal any documents classified under the Official Secrets Act 1972, even if the purpose is to disclose acts of corruption, misuse of power or criminal activities.
Thus, this provision weakens the efficacy of the WPA 2010. It is proposed that immunity should be extended to whistle blowers who may be at risk of violating the OSA 1972, Financial Services Act 2013, or section 2013A Penal Code, or other secrecy laws.
The purpose of the WPA is therefore defeated if the threat of OSA and other secrecy laws hang over potential whistle-blowers. The Official Secrets Act in particular is the biggest threat in exposing the whistle blower to a criminal charge or penalty or forfeiture.
Genuine concerns over national security can be addressed without compromising the purpose and strength of the Whistle blower Protection Act.
Alternatively, the Act could put in place specific mechanisms to ensure that certain sensitive informations are not leaked to the public – such as making sure whistle blower complaints go straight to a judicial officer.
Besides, there should be defences in law available in the WPA 2010 for the whistle-blower if the disclosure contravenes any written law.
The defences are significant as the law will recognize the rights of a whistle blower of protection from any criminal charge if certain reasonable conditions are met.
Prepared By Muhammad Faisal Abdul Aziz Secretary General Muslim Youth Movement Malaysia / Advocate & Solicitor