Friday, June 03, 2016

Official Secrets Act(OSA) to hide the truth, wrongdoings...?

Recent events have led us to ask several questions about Malaysia's Official Secrets Act(OSA)

1 -  What is the real purpose of the OSA? Is it also meant to HIDE wrongdoings and even possible crimes (or evidence related to crimes) of governments of the day[or persons in government] ? 

2 - Is the OSA being abused? What materials/documents/etc are now being classified  "Top Secret", "Secret", "Confidential" or "Restricted"? 

3 - Who really decides on which document is "Top Secret", "Secret", "Confidential" or "Restricted"? Is it the Minister, the Menteri Besar or Chief Minister of a State? Or is it some
public officer appointed by the said Minister, the Menteri Besar or Chief Minister of a State

4 - How many public officers have been appointed to decide and classify documents/information/materials as Official Secrets, and thereby decide to mark it "Top Secret", "Secret", "Confidential" or "Restricted"? Is it 2 per Minister or is it 100s? 

5 - Who will have access to look at these 'Official Secret' documents/information/materials? Only the relevant Minister and the appointed public officer? Also public officers in the said Ministry? Any Minister or public officers in any Ministry? Does it mean that a Menteri Besar can also have access to all 'Official Secrets' including documents marked 'Official Secret' by the Minister of Finance (or his/her appointed officer? 

6 - Does the Attorney General/Public Prosecutor and/or the Judiciary have a right to view 'Official Secret' documents? Does the Auditor General have a right to view 'Official Secret' documents

7 - Does Parliament have the right to view these 'Official Secret' documents?

8 - What about the Yang Di-Pertuan Agung, the Sultans and Heads of State?

9 -  Remember in Malaysia, we have 3 branches of government - the Executive, the Legislative and the Judiciary? So are these 'Official Secrets' only for the Executive? or is it for the Government's eyes only?

10 - 'Official Secrets' - something not to be abused. In companies, employers sometimes use 'confidentiality clauses' - and maybe the government too should use such clauses, if they want their employees to be bound. Simply using OSA for everything maybe an abuse of power or an abuse of the Act?

11 -  Well, when an employee(public servant) or some Minister becomes aware of an information/document marked under the OSA that reveals a CRIME, ABUSE OF POWER, etc,... surely the duty to report the Crime/Abuse should be required. Wrong to use the OSA to HIDE or BURY evidence of CRIME or Power Abuse,...

LET'S LOOK AT THE OSA - what is an 'Official Secret'?

Section 2  Interpretation, OFFICIAL SECRETS ACT 1972
"official secret" means 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;
So, what are the things that can be classified 'Official Secret'?

[Section 2A]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.
Hence, 'Official Secret' is limited and defined. The broader definition is "Documents concerning national security, defence and international relations."  

SO, HOW CAN DOCUMENTS CONCERNING COMPANIES, GOVERNMENT-OWNED OR GLC, BE CONSIDERED 'Official Secret'? Is it not a 'national security' matter since 1MDB and the allegations concerning the discovery of billions of ringgit in the Prime Minister's personal account? What justification do they use to HIDE Agreements concerning Highways and Tols?

FOR HOW LONG WILL THEY REMAIN SECRET? In other countries, there is a limit...a determined period, and after that all 'secret documents' will no longer be secret and will be available to the public - a reasonable limit is 10 years,...what say you.

The power to appoint public officers who can classify documents as 'secret'...this must be limited, and should not be simply given to every other head of departments in every town and office? 

2B  Appointment of public officer to classify official document, etc.

A Minister, the Menteri Besar or the Chief Minister of a State may appoint any public officer by a certificate under his hand to classify any official document, information or material as "Top Secret", "Secret", "Confidential" or "Restricted", as the case may be.
INTERESTING that the police is trying to (1) Determine whether the letter was really a letter marked "Official Secret'  - surely, there are SPECIAL CHOPS, with security features, used in marking these documents "Top Secret", "Secret", "Confidential" or "Restricted". If not, anyone can mark anything an Official Secret? Is there a LIST of such documents?

Interesting also is that the police are trying to find the person who 'leaked' the said documents - rather that looking at what the contents prove? If the contents prove, that some have lied to the public - surely that is a WRONG or a CRIME? 

After the EAIC statement on the Death in Custody case of N. Dharmendra - there is a serious issue of public officers making false entries in diaries, false statements... which, I consider, are very very serious CRIMES that should be investigated and prosecuted...LIES and/or MIS-TRUTHS are things we cannot tolerate especially if it is public servants that do it...


Now, the Chairman of our Public Accounts Committee(PAC), a Parliamentary Committee, said that the information contained in the Bank Negara letter could not be used because it was an OSA document? Well, if that is what OSA does, the truth and crimes can simply be hidden away by just making them 'Official Secrets'? I am confused? Where is the accountability? Where is the Transparency? Is evidence going to be simply 'buried' and made inaccessible because of OSA? In any even, the credibility of PAC is in question? Who can we believe? Who can we trust? ....

Police to probe Bank Negara staff if OSA letter genuine
Published 1 Jun 2016, 12:13 pm

The police will investigate Bank Negara Malaysia staff over the leak of a classified letter to The Wall Street Journal if the document is found to be genuine.

Inspector-general of police Khalid Abu Bakar said the first step would be determine if the letter, which is categorised under the Official Secrets Act (OSA), is authentic.

Once this is established and if the letter is found to be genuine, he added the police would check who had access to the document in order to narrow down the possible suspects.

"This is a serious matter and we will not leave any stone unturned," he told Malaysiakini.

Asked if investigations would also focus on Public Accounts Committee (PAC) members, who might have procured the letter from certain sources and leaked it, he replied: "We are not discounting any possibilities."

"We will investigate all those whom we believe can shed light on the matter," he said, adding that no arrests have been made so far in connection with the case.

Khalid also urged WSJ Asia chief editor Tom Wright to help facilitate police investigations by disclosing how he had obtained the document.

After the letter was revealed last week, Prime Minister Najib Abdul Razak said Bank Negara governor Muhammad Ibrahim had lodged a police report against WSJ. However, Najib said he could not confirm if the letter was genuine.

The publication, which has been accused of being part of the campaign to oust Najib, had tweeted a copy of the letter, and this was later re-tweeted by Wright.

The letter is from Bank Negara to PAC chairperson Hasan Ariffin.

The document supposedly confirmed that Good Star Limited was owned by tycoon Low Taek Jho, who is better known as Jho Low.

This contradicted the government’s assertion that Good Star, which has since been dissolved, belonged to former 1MDB joint-venture partner PetroSaudi International.- Malaysiakini, 1/6/2016

Read more:

28 May 2016 | MYT 9:20 PM

PAC denies report Jho Low owner of Good Star Ltd

PETALING JAYA: Public Accounts Committee (PAC) chairman Datuk Hasan Arifin (pic) has denied that Malaysian financier Low Taek Jho is the owner of Good Star Limited.

The Wall Street Journal previously revealed a confidential letter from Bank Negara to Hasan implicating Low, or Jho Low, as the owner of Good Star Limited.

“This is because Bank Negara has said that the information provided is (for) intelligence (purposes). PAC is not an investigative body and the information it receives has to be authentic and true.

“As the information received by the PAC is classified as intelligence, PAC is unable to incorporate the information provided as it would be in conflict with its duties and responsibilities and raise prejudices against various parties,” Hasan said in a statement on Saturday.

“Apart from that, Bank Negara itself said the investigation into 1MDB is completed and the firm has been issued with an administrative compound.

“PAC has also presented its report to Parliament, and the matter has been resolved and should not be politicised,” the statement said. - Star, 28/5/2016

ua: Hasan cannot deny ‘covering up’ for Jho Low

 | May 29, 2016
The PAC chief's media response on Saturday does not absolve his role in covering up the 1MDB scandal.
KUALA LUMPUR: Hasan Arifin’s latest take on why he deleted portions of the Public Accounts Committee’s (PAC) Report on 1Malaysia Development Berhad (1MDB) reinforces calls for him to resign as its chairman, says Petaling Jaya Utara MP Tony Pua in a statement.
“The people can no longer trust him to carry out his role honestly, professionally and with integrity.”
Hasan’s media response on Saturday, during which he denied that Good Star Limited belonged to controversial businessman Jho Low, did not absolve his role in covering-up the 1MDB scandal, added Pua, who is also DAP National Publicity Secretary.
Instead, he warned, it only confirmed that Hasan was a “complete illiterate” who could not read and understand even basic Bahasa Malaysia. “Alternatively, more plausibly, he was totally biased, the sole objective being to protect Jho Low from being implicated.”
“He has not hesitated to abuse his position as PAC chairman to obstruct investigations into the single largest financial scandal in the history of the country.”
The people can now see for themselves the types of challenges that Opposition members of the PAC face when dealing with the likes of Hasan Arifin, continued the MP.
The topmost question that Hasan must now answer was why he was going all out to hide Jho Low’s connections to Good Star and 1MDB, even at the cost of making him look like a “complete idiot”, lamented Pua.
Pua said Hasan “outrightly denied” Good Star Limited belonged to Jho Low, whose full name is Low Taek Jho and added, “Good Star Limited received USD1.03 billion of direct payments from 1MDB from 2009 to 2011.”
He pointed out that Hasan’s outright denial did not hold water. Bank Negara, for example, Pua said, disclosed that two foreign regulatory authorities confirmed that the sole beneficiary of Good Star Limited was Jho Low and the ownership status never changed since its inception in June 2009. “Hasan dismissed Bank Negara’s letter on the grounds that the information provided was ‘intelligence grade’.”
“Hence, since the PAC is not an intelligence agency, we are unable to verify the authenticity and truth of the information,” Pua quoted Hasan as claiming. “This must be the most gravity-defying acrobatic twist of logic from the chairman.”
“An ‘intelligence grade’ piece of information does not require an intelligence agency to make use of the intelligence reports.”
On the contrary, argued Pua, the “intelligence grade” information should be taken as the likely truth unless otherwise proven. “It was intelligence received from Bank Negara’s counterparts in foreign countries.”
Furthermore, argued Pua, if “intelligence grade” information from Bank Negara cannot be believed, the PAC chairman cannot accept at face value either the letter from PetroSaudi acknowledging Good Star Limited as its subsidiary. “It’s mere assertion, unsupported by any documentary evidence.”
“We don’t even know if the letter provided by 1MDB was genuine. Hasan cannot claim that Bank Negara was far less trustworthy than 1MDB, the very company the PAC was tasked to investigate.”
Pua went on to say that Hasan neglected to mention that Bank Negara did stress that the PAC could use the information contained in its letter for publication provided that “approval from the foreign regulatory authorities be obtained via Bank Negara in advance.”
The Bank Negara letter provided the necessary lead for the PAC to investigate further into the multi-billion dollar embezzlement which took place, alleged Pua. “For example, the PAC would then have strong basis to summon Jho Low to testify before the Committee.”
Hasan also did not respond to the question as to why he refused to share the “intelligence grade” letter with PAC members, reminded Pua in a parting shot. He noted that Hasan claimed the letter was addressed to him confidentially.
“The contents of the Bank Negara letter repeatedly made reference to the information which was ‘provided to the PAC’.” - FMT News, 29/5/2016

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