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Media Statement  
by Lim Kit Siang  
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(Parliament, Friday) : The Inspector-General of Police, Tan Sri Musa Hassan, should halt all Official Secrets Act (OSA) investigations against Opposition leaders, Ronnie Liu (DAP), Khalid Ibrahim and Tian Chua (PKR) until the police has received clear  legal advice from the Attorney-General as the Public Prosecutor that the Litrak Lebuhraya Damansara-Puchong (LDP) concession agreement is protected by OSA.

There are at least two  major reasons why the Police should not be trigger-happy to launch OSA investigations, viz:

Firstly, undermining and even destroying the pledge of open, accountable, transparent and good governance which was the clarion pledge of Datuk Seri Abdullah Ahmad Badawi when he became the fifth Prime Minister and on the basis of which he won the landslide 91% parliamentary seats in the 2004 general election;

Secondly, to demonstrate that the police upholds the rule of law and has learnt the lessons from the Mohd Ezam Mohd Nor OSA case, where the Shah Alam High Court Judge K.N. Segara in April 2004 quashed Ezam’s conviction and two-year jail sentence by the Sessions Court and made the following statements: 

• It was incumbent upon the prosecution to establish that the alleged documents divulged by Ezam were genuinely classified by an authorized government official as stated in section 2 of the OSA.
• Instead of calling witnesses to prove the important requirement, the prosecution chose to solely rely on the certificate issued under Section 16(A) of OSA by the then Attorney-General, the late Mohtar Abdullah on August 24, 2000 in proving that the reports were genuinely classified as official secrets.  Section 16(A) stipulates that the certificate by  an authorized government official that an official document is an official secret “shall be conclusive evidence…and shall not be questioned in any court on any grounds whatsoever”.
• Segara found Section 16(A) to be “meaningless, obnoxious, draconian and oppressive” – “void and inconsistent to Section 2 of the Act in the interpretation of official secrets”.
• The judge said Section 16(A) cannot exempt the prosecution’s burden to prove that the classification of any document as official secret was done in a proper manner as stated in the Act.

The first question that must be resolved is whether the document in question, the Litrak LDP concession agreement, is an “official secret” under the OSA, and when and how it became an “official secret’.

This is because after the Segara judgment in the Mohd Ezam case, the Police have no reason to launch investigations which is no different from police harassment and intimidation of Opposition leaders for their legitimate political activities to hold the government to accountability, transparency, integrity and good governance unless the Police are fully satisfied that the document concerned is an official secret as to fall under the OSA.

The Police should now know, if they had known before, that there are official documents which are not official secrets under the OSA.

The only authority the Police can rely on this matter is the Attorney-General, and this is why the Police must not initiate any OSA investigations in relation to any police report unless it has received advice from the AG that the document impugned was in fact an official secret to fall under the OSA.

Has the Police received such advice from the Attorney-General that the Litrak LDP concession is not only an official document but an official secret under OSA?

Can the Police launch investigations and go on a “fishing trip” to harass and intimidate Opposition leaders and social activists just because of a police report under the OSA, regardless of the document referred to is an official secret or not?

If the Police has not been advised by the Attorney-General that the OSA has come into play as the document impugned is an “official secret”, how could the police invoke powers under the OSA to initiate investigations, including Section 11 of the OSA to demand the production of documents?

Section 15(1) provides that no prosecution  for an offense under the OSA shall be instituted except by or with the consent of the Public Prosecutor.  This means that even in cases where there had been unauthorized disclosure of “official secret”, there are circumstances where prosecution is not warranted in the public interest.

It would be a total mockery of such protection given by OSA against capricious prosecution where official secrets are involved if the police are allowed to abuse their powers by launching investigations under the OSA when the police is not clear and has not been advised by the Attorney-General that the official document in question is an official secret under the OSA, as is the case with the Litrak LDP concession agreement.

(2/2/2007)