Concern For Nathaniel Tan

I am concerned about the arrest and remand of Nathaniel Tan. Media reports suggest that he has been arrested in connection with an offence under section 8 of the Official Secrets Act, or the OSA. If this is true, then the Government must take immediate steps to ensure that Nathaniel Tan is immediately released.

For this, it would be useful for us to get a grasp of what the OSA, and in particular section 8, concerns.

As it was originally drafted, the OSA was a law aimed at allowing the Federal and State governments to take measures to ensure that highly sensitive information pertaining to matters of national security could be maintained confidential. The objective was to allow those charged with the security of the country to keep such information away from those who would use this information adversely.

For this reason, as it was originally drafted the OSA allowed for the classification of a very narrow class of documents pertaining to military installations, military prisons and other matters related to state security.

The OSA was amended in 1987 to expand the scope of information that amounted to an ‘official secret’. Since then information so defined include information in the following categories:

• 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.
• any information and material relating to the 3 categories set out above and 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
  

The government may add to the first three categories by simply gazetting the variations. This allows for additions outside parliamentary scrutiny and process.

Section 8 of the OSA is one of the main sections of the Act. It sets out offences against the Act in the widest terms. It would be best to reproduce the relevant parts here:


8. Wrongful communication, etc. of official secret.

(1) If any person having in his possession or control any official secret which -
…
(c) has been made or obtained in contravention of this Act;
…
does any of the following -


(iii) retains in his possession or control any such thing as aforesaid when he has no right to retain it, or when it is contrary to his duty to retain it, or fails to comply with all lawful directions issued by lawful authority with regard to the return or disposal thereof; or

he shall be guilty of an offence punishable with imprisonment for a term not less than one year but not exceeding seven years.

(2) If any person receives any official secret or any secret official code word, countersign or password knowing or having reasonable ground to believe at the time when he receives it, that the official secret, code word, countersign or password is communicated to him in contravention of this Act, he shall, unless he proves that the communication to him of the official secret, code word, countersign or password was contrary to his desire, be guilty of an offence punishable with imprisonment for a term not less than one year but not exceeding seven years.


As one can see, the provision puts almost any activist involved in efforts to improve socio-political conditions in Malaysia in a ‘damned if you do, and damned if you don’t’ place.

The OSA is unconstitutional. In its current form, it violates a range of fundamental liberties guaranteed by the Federal Constitution. Chief amongst these is the freedom of expression, and the associated freedom of information. Seen from the perspective of allowing arbitrary government, the OSA violates the equal protection and equal access to the law guarantees as well as undermining the fair and free elections underpinnings of our system of government.

The OSA in its current form allows for a government to administer this country covertly and in defiance of the accountability and transparency that is crucial to democratic process. This impacts on all our lives in more ways that we can begin to understand as the government is given a means to thwart legitimate public interest by the forced suppression of material and relevant information. The position taken by the government in connection with the disclosure of toll concession agreements illustrates this worrying trend.

The OSA as it is also violates international human rights norms and runs counter to representations made by our government at the international level about the state of play in this country where civil and political rights are concerned. Malaysia is a current member of the United Nations Human Rights Council. It must act in a manner consistent with its membership.

These are not my views alone. The OSA has been widely condemned (see here for a comprehensive analysis of the Act by Human Rights Watch).

In view of the above, short of repealing the OSA or amending it to neturalise the contraventions of constitutional guarantees and international human rights norms, no charge or charges should be made out against any person under the OSA. Such an act would run counter to the promises of transparency and accountability of the current administration under Abdullah Badawi.

The move against Nathaniel Tan is particularly worrying in light of indications in the media that the investigations are being carried out in connection with concerns about matters published in blogs. In a previous posting, I had explained how vital blogging is to nation building efforts.

MIS