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:
“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”…
”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”……..
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.