Duty of a Parliament Speaker - does Pandikar know it?

Duty of a Parliament Speaker - does Pandikar know it?

Only in Bolehland Malaysia’s Parliament are elected Members of Parliament (MPs) restricted from speaking freely.

Not only that. Even the Auditor-General (A-G)’s Report on the 1Malaysia Development Berhad (1MDB) can also be classified a secret!

Now, just what is the role and purpose of having an A-G? To ensure that all public-related financial matters are above board.

So, what does the Umno-led Barisan Nasional (BN) federal government fear and want to hide?

If an A-G’s report is just to keep it locked up in the cupboard to collect dust, why even have the report commissioned? For that matter, why even bother to have an A-G to audit government accounts and then hide the findings?

The Parliament, being the national legislature of Malaysia, based on the Westminster System, consists of the Dewan Rakyat (House of Representatives) and the Dewan Negara (Senate).

The Yang di-Pertuan Agong (King) as the Head of State is the third component of Parliament.

So, even in Parliament, MPs cannot debate or speak freely on matters of serious national concern? What happened to the rule of law and justice in Malaysia?

Read on what deputy co-chairman of the Bar Council’s constitutional law committee Surendra Ananth and former Bar Council president Ambiga Sreenevasanhas have to say:

"Pandikar’s duty to the public must come first

October 29, 2016

Under the right to freedom of expression, every citizen has the right to know. It is only with accountability and transparency can citizens make sound judgment on governmental affairs.

COMMENT

From: Surendra Ananth, via email

On Oct 27, the Speaker of the Dewan Rakyat, 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 Secrets Act 1972 and Sedition Act 1948 in the course of their speech in Parliament.

On Oct 24, Datuk Seri Husni discoursed on the topical subject of 1MDB, touching on the many cascading issues such as transparency, public perception, the countries’ economy and corruption.

On Oct 26, Tan Sri Muhyiddin orated on the same subject, centering on “economic governance”. In essence, he expounded on the financial mismanagement in 1MDB, and how the Prime Minister acted irresponsibly against the principles of good governance, transparency and accountability.

No legal proceedings can be initiated against parliamentarians for anything they’ve said in the course of parliamentary proceedings under Article 63(2) of the Federal Constitution. The only exception are matters which amount to an offence under the Sedition Act or other laws passed under Article 10(4).

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.

Although the OSA classifies “Cabinet documents, records of decisions and deliberations including those of Cabinet committees” as official secrets, it would be nonsensical to interpret the provision in a manner to mean that every issue discussed in Cabinet meetings would be an official secret.

Members of the Cabinet would (or should) most certainly discuss all matters of national and public interest. Does that mean that we citizens cannot speak on these matters simply 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.

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.

It must be borne in mind that 1MDB is wholly owned by the Government of Malaysia. 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. Governmental power should never be abused or misused.

Every citizen has the right to freedom of expression under Article 10, which includes the right to discuss governmental affairs. As the Court of Appeal had famously declared: “…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”.

Under the right to freedom of expression, every citizen has the right to know. 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.

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”. This is his primary duty.
Surendra Ananth is deputy co-chairman of the Bar Council’s constitutional law committee. - FMT"

"Declassify the auditor general’s report on 1MDB

27 Aug 2016


The entire cabinet must take full responsibility for any fallout suffered by Malaysia and its people from the 1MDB saga, says Ambiga Sreenevasan.

Details of the 1MDB auditor general’s report disclosed by Sarawak Report have been met by a wall of silence by the government save for the usual vitriol hurled at the portal for its disclosure of a classified document.

The directive to the auditor general to investigate 1MDB came from the Cabinet in March 2015. The report was completed and handed to the Public Accounts Committee (PAC) on 4 March 2016 at which point it was classified as an official secret.

It is unclear exactly who classified it although the Act requires that if it does not fall within the schedule that refers generally to government decisions and issues relating to national security, then it must be so classified by a minister, the mentri besar or chief minister or other authorised public officer.

Who therefore classified the report as an official secret? It must be ensured that no conflict of interest arose in the classification.

The issue now is whether the auditor general’s report should be declassified under Section 2C of the Official Secrets Act. There are compelling reasons why it must.

First, this is an audit sought by the cabinet, which was perfectly justified in doing so in view of the fact that public funds were involved. The cabinet was therefore acting in the public interest. However, the cabinet’s task is incomplete if they do not consider the report in full and if they do not publicly disclose its contents.

One does not ask for such an important report to be done by the auditor general, only to make his findings secret. In other words, the auditor general is brought into the picture to examine if there are improprieties relating to public funds. It is therefore incumbent on the cabinet to direct the declassification of the auditor general’s report.

Secondly, the auditor general serves the public interest. Under the Federal Constitution, he is appointed by the Yang Di-Pertuan Agong on the advice of the prime minister and after consultation with the Conference of Rulers. He also cannot be removed except on like grounds and in like manner as a judge of the Federal Court. All this is to ensure his independence and to ensure he acts without fear or favour.

As the report was clearly prepared in the public interest, the report must be disclosed publicly just as his yearly reports are. Article 107(1) of the Federal Constitution provides that the auditor general shall submit his reports to the Yang Di-Pertuan Agong, who shall cause them to be placed before the Dewan Rakyat. Of course there may be arguments that this report is excluded from that provision but there is no reason in law why it ought to be.

Another avenue exists. The auditor general may transmit his report to the King under S9(8) of the Audit Act which states :

(8) Notwithstanding the provisions of this section, the Auditor General may at any time submit a report to the Yang Di-Pertuan Agong upon any matters arising out of the performance of any of his duties or the exercise of any of his powers under this Act or under any written law, and may submit a copy of any such report to the Ruler or Yang di-Pertua Negeri of a State or to a Minister.

Once the Yang Di-Pertuan Agong receives the report, it may be transmitted to the Council of Rulers who may then consider advising that the report be disclosed.

Thirdly, the report is already in the public domain through reports in Sarawak Report. Had there been errors in the report, there is no doubt that the auditor general would have said so. Once a purported “official secret” is in the public domain, it is no longer a secret and ought to be declassified.

The famous Spycatcher cases in the UK with the late 1980’s dealt with this very point. The following passages of the learned lawlords are relevant:

Spycatcher (1)

“But it is perfectly obvious and elementary that, once information is freely available to the general public, it is nonsensical to talk about preventing its ‘disclosure’. Whether the Spycatcher allegations are true or false is beside the point. What is to point is that they are now freely available to the public or, perhaps more accurately, to any member of the public who wants to read them…….”

“Freedom of speech is always the first casualty under a totalitarian regime. Such a regime cannot afford to allow the free circulation of information and ideas among its citizens. Censorship is the indispensable tool to regulate what the public may and what they may not know. The present attempt to insulate the public in this country from information which is freely available elsewhere is a significant step down that very dangerous road”…

(Lord Bridge)

Spycatcher (2)

”But if the matter sought to be published is no longer a secret, there is unlikely to be any damage to the public interest by reprinting what all the world has already had the opportunity to read. There is no possible damage to the public interest if Tom, Dick or Harry, or the Sunday Times reprints in whole or part what is already printed and available within the covers of Spycatcher”……..

(Lord Brightman)

In a true democracy, it should be unnecessary to have to provide arguments as to why such an important report like this report should be publicly disclosed.

Unless we admit that what we have is indeed a totalitarian regime.

Hakam urges the cabinet to discuss this specific issue and to direct the immediate declassification of the auditor general’s report. Anything less will mean that the entire cabinet must take full responsibility for any fallout suffered by Malaysia and its people from the 1MDB saga.

Ambiga Sreenevasan is president of Hakam. The above statement was Issued on behalf of the Hakam executive committee."