Pandikar’s duty to the public must come first


From: Surendra Ananth, via email

On Oct 27, the Speaker of the Dewan Rakyat, Tan Sri Pandikar Amin Mulia, was reported as having said, “In parliament we can say whatever and when we are debating no action might be taken, but there are certain acts like the OSA and Sedition Act”.

He was referring to speeches made by Tan Sri Muhyiddin Yassin and Datuk Seri Husni Hanadzlah. It would seem that the Speaker was of the view that the two parliamentarians had violated the Official Secrets Act 1972 and Sedition Act 1948 in the course of their speech in Parliament.

On Oct 24, Datuk Seri Husni discoursed on the topical subject of 1MDB, touching on the many cascading issues such as transparency, public perception, the countries’ economy and corruption.

On Oct 26, Tan Sri Muhyiddin orated on the same subject, centering on “economic governance”. In essence, he expounded on the financial mismanagement in 1MDB, and how the Prime Minister acted irresponsibly against the principles of good governance, transparency and accountability.

No legal proceedings can be initiated against parliamentarians for anything they’ve said in the course of parliamentary proceedings under Article 63(2) of the Federal Constitution. The only exception are matters which amount to an offence under the Sedition Act or other laws passed under Article 10(4).

The OSA is not a law under the said article and therefore cannot supersede a constitutional privilege. On the Sedition Act, I am still in a state of perplexity as to how the speeches of the two parliamentarians, on good governance, is seditious.

Although the OSA classifies “Cabinet documents, records of decisions and deliberations including those of Cabinet committees” as official secrets, it would be nonsensical to interpret the provision in a manner to mean that every issue discussed in Cabinet meetings would be an official secret.

Members of the Cabinet would (or should) most certainly discuss all matters of national and public interest. Does that mean that we citizens cannot speak on these matters simply because it has been discussed in Cabinet? Such a proposition is farcical. Every citizen has a constitutional right to express their views on the governmental affairs.

The Speaker also opined that the said parliamentarians had breached their oath of secrecy as ministers. The oath includes an exception which states, “except as may be required for the due discharge of my duties as such”. Prior to taking that oath, ministers must first take an oath of office and allegiance which ends with, “I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its Constitution”. The same oath is taken by parliamentarians. The real question is whether they were upholding the Constitution.

It must be borne in mind that 1MDB is wholly owned by the Government of Malaysia. The government acts as the fiduciary of the public. It must act for the benefit of the public and the general good of the nation. Governmental power should never be abused or misused.

Every citizen has the right to freedom of expression under Article 10, which includes the right to discuss governmental affairs. As the Court of Appeal had famously declared: “…as public interest dictates, a democratically elected government and its officials should be open to public criticism and that it is advantageous that every responsible citizen should not be in any way fettered in his statements where it concerns the affairs and administration of the government”.

Under the right to freedom of expression, every citizen has the right to know. In order for citizens to exercise sound judgment on the conduct of the Government and the merits of public policies there must be a free flow of diverse opinions and ideas. It is only with accountability and transparency can citizens make sound judgment on governmental affairs.

In short, the two parliamentarians were upholding the principles of representative and participatory democracy.

Perhaps the Speaker needs to be reminded of the oath he undertook when sworn into his position, which also ends with “…and will preserve, protect and defend its Constitution”. It is a shame that a person in such a high and important position puts the interest of the public and the Constitution below all else. The power that he and other parliamentarians wield are “held in trust for the people” and must be exercised for the “general good of the nation as a whole”. This is his primary duty.

Surendra Ananth is deputy co-chairman of the Bar Council’s constitutional law committee.

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