The irony of it all is that the punishment of Keadilan Youth chief, Mohd Ezam Mohd Nor (who is already serving a two-year preventive detention order under the ISA) for a two-year jail term under the Official Secrets Act (OSA), will not stop the circulation of the secret documents.

There is simply no way of preventing publication and circulation after initial disclosure. Unbeknownst to us all, copies may well be even with Pos Malaysia waiting to be delivered to all and sundry. Most of us just hit the Net.

The offending documents relate to the corruption investigations of International Trade and Industry Minister Rafidah Aziz, and former Melaka Chief Minister Abdul Rahim Thamby Chik.

These were stamped, ' Rahsia ' (secret) with the signature of Abdul Gani Patail, currently serving as attorney-general. The documents dated March 14, 1995 made inferences of a prima facie basis to prosecute Rafidah and Rahim for corruption. In Rahim's case, the investigations were concluded as early as June 1994.

Whatever interest the government had in keeping the information secret is now lost as the information is already in the public domain. The rationale under the OSA in this case has been overtaken by events.

This principle was rationalised by the 1991 Spycatcher

case. Spycatcher is the unauthorised memoirs of a retired member of the British security service. Injunctions were obtained in UK restraining further publication. Spycatcher was subsequently published in the US. When the UK went to the European Court, the court said, among others, that after Spycatcher was published in the US, the UK government's interest in promoting "the efficacy and reputation of the Security Service" was overridden by the public's right to know.

It is untenable now or too late for the government to insist on secrecy as the general public can evaluate the information and judge for themselves (as the courts apparently cannot go there), whether the decision to classify the information as secret was right in the first place.

Defence of public interest

The fact that these documents tend to incriminate politicians and serving ministers in corrupt practices is surely a defence once disclosure is risked, says the person drinking teh tarik at a mamak stall. The reasonable right-minded rakyat would think that public interest demands that disclosure be made. Res ipsa loquitur , the thing speaks for itself.

The question that is running is everybody's mind is, of course why such information has to be deemed secret from 1994-1995 until today? It has not been de-classified. Ezam's case has proved that much. About seven years have gone by, more than the usual five-year term of office for parliamentarians under the Federal Constitution.

The whole thing smells of political intrigue rather than law. In which case, the resort to the OSA and the courts by the government merely shows up government incompetence in dealing with corruption in high places. The decision to prosecute Ezam, in a way, backfired.

As the same government is still in office, with no prosecution in sight and nothing else is known about the status of the matter, DAP chairperson Lim Kit Siang's reference to the situation as a "new crisis of confidence" is apt ('Parliament must address new crisis of confidence: Lim', Aug 10).

Lim is no stranger to OSA and had anxious moments as Leader of the Opposition when he raised pertinent questions of public interest in Parliament in relation to the purchase of defence apparatus in the recent past.

Both the OSA and the Sedition Act (in the case of former MP Fan Yew Teng) have been used against opposition politicians speaking in Parliament. It remains to be seen whether the matter would be addressed on Sept 9 (by parliamentarians regardless of party affiliations) as proposed by Lim when Parliament sits, or be waived away by the learned Speaker.

Right to information

The right to freedom of information lies at the core of democratic accountability. This right increases with how we, the informed rakyat, view the importance of the information at issue, in this case, corruption.

The right to freedom of information is related to freedom of speech and expression and free press. These serve as safeguards against government abuse of power. These rights are important components of genuine national security.

One of the drafters of the American Constitution, the renowned James Madison wrote in 1822 of the importance of an informed citizenry to democratic governance:

"A popular Government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps, both. Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives."

What should the OSA be about? It should not be about making corruption secret. Winston Churchill in commenting about the UK version of the law said, "The Official Secrets Act was devised to protect the national defences and ought not to be used to shield ministers who have strong personal interests in concealing the truth about matters in the country."

The way the relevant clause on possession of documents deemed or by rote, classified as secret is presently worded, the OSA could be easily used by an embarrassed executive. Besides being used against the opposition in Parliament in respect of parliamentary questions, the OSA has been used to bully journalists into revealing their sources or has prevented journalists from doing the basic job of reporting. Any journalist will tell you that there are far too many occasions when information is unnecessarily withheld.

Commentaries from UK to Australia and elsewhere where the original UK law has been copied, state that in many reported instances, the OSA can be used oppressively and contrary to the national interest, or merely unthinkingly.

When Abu Talib Othman, now Suhakam chairperson, was attorney-general, all bills (proposed law or proposed amendments), as a matter of rote, were classified as secret. This practice has prevented discussion on any proposed law until it came to Parliament thus thwarting legitimate discussions on any proposed law by the rakyat and civil society groups who had worked on reforming particular laws.

Obsession with secrecy

This obsession with secrecy should worry us all. The campaign to reform laws which curtail freedom of the press is not just about licensing in the Printing Presses and Publications Act (PPPA). Although there are numerous laws which restrict speech, expression and free press, the unreformed OSA must surely be challenged in the same breadth as the PPPA.

In several countries that inherited or fashioned OSA in their legal systems, free speech advocates are raising concerns on the freedom of information, the duty of public disclosure and protection for whistle-blowers.

Public interest would be better served with more openness and more accountability. Perhaps our good parliamentarians may suggest that an enquiry be set up to make recommendations for getting rid of unnecessary secrecy.

The public's right to know is implicit in representative democracy. In such a democracy, where all the agents of the public must be responsible for their conduct, there can be but few secrets.

SALBIAH AHMAD is a lawyer and an independent researcher. MALAYA! as the name for this column was inspired by the meaning of "Malaya" in Tagalog which means freedom. The events at the end of 1998 in KL offer a new inspiration. MALAYA! takes on the process of reclaiming the many facets of independence.