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Monday, February 8, 2016

Sorry AG, the right to know exists in constitution



MP SPEAKS I really don’t know whether the present attorney-general (AG) Mohamed Apandi Ali is going to leave a meaningful legacy in the history of such a noble profession. What is certain is that Apandi has been making problematic decisions and bizzare recommendations.
So far, he has proudly used (or misused?) his discretion under Article 145 (3) of the Federal Constitution in not prosecuting 1MDB for "cheating" Bank Negara under the Exchange Control Act.
Apandi also decided, prematurely, to close the file against Prime Minister Najib Abdul Razak on the RM2.6 billion controversial donation. Instead of prosecuting National Feedlot Corporation's boss on the Cowgate scandal, he prefered to discontinue with the trial, leaving the trial judge with no alternative but to acquit the accused.
Now, the AG is proposing a weird alternative to solve the problem of leakages of state secrets - 10 strokes of the rotan and life imprisonment.
He is also waging a war against the media by mulling the idea of not letting the journalists off the hook if they report on an official secret. In defending such a harsh punishment, he takes the law in China as his legal precedent.
Apandi even boldly says that the right to know is not granted in the Federal Constitution!
When the highest lawyer of the country inteprets the highest law of the land in a pedantic way, it is really a national tragedy.
To begin with, the constitution is not an ordinary legislation in which one may offer a narrow and restrictive interpretation of such a law. On the contrary, the constitution is a sui juris (legally competent) document, which stands on its own. In interpreting any provision of the constitution, even the doctrine of stare decisis (judicial precedent) is of a little value.
Narrow and pedantic intepretation
The narrow and pedantic intepretation of our Federal Constitution would only expedite its suicidal process. Unfortunately, this is what the present AG is doing to our esteemed constitution.
I am not sure how Apandi came to a misconceived conclusion by saying that the constitution does not give us the right to know. Yes, no one will find the phrase "right to know" in the Federal Constitution. But absence of evidence is not evidence of absence.
If absence of the phrase "right to know" justifies the denial of such a fundamental right, then the AG should have also extended such a logic to other phrases as well.
Phrases such as "'the right to dissent", "the right to information", "the right to write", etc, are also absent in our constitution. Does it mean such rights do not exist at all in the constitution?
In actual fact, whether the AG knows or otherwise, the right to know actually exists in our constitution. Such a right is encapsulated in the right to freedom of speech, as enshrined in Article 10 of the Federal Constitution.
The fundamental right to freedom of speech is meaningless and illusory if it is not accompanied by the right to know. In fact, the right to know precedes the right to speech. Or rather, the former creates the latter. One does not demand the freedom of speech unless the right to know is also present.
Out of touch with reality
As far as his suggestion to amend the Official Secrets Act (OSA ) is concerned, Apandi is definitely out of touch with the present reality. In the absence of the culture of transparency, accountability and good governance in doing any business, any state in the world is bound to face the nightmare of a "Wikileaks epidemic".
When any legitimate and genuine right to know is not duly entertained by the government, the government will in fact be opening the floodgates of leakeages of state secrets. Amending the OSA is not the remedy.
If transparency reigns supreme, there would be no justification for people to share any state secret in public domain. If it is otherwise, sharing state secrets would not be viewed in contempt.
Instead of tightening the grip of OSA to prevent the "Wikileaks culture", it is high time for the government to enact the much awaited Freedom of Information Act.

MOHAMED HANIPA MAIDIN is the MP for Sepang. -Mkini

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