Secrets’ societies

Sunshine is the greatest disinfectant.
– Associate Justice Louis Brandeis, US Supreme Court (1916-1939)

Politicians gloat about the need for transparency, responsibility, accountability as they wield power to classify, or declassify, certain documents deemed surreptitiously secret. The media frenzy over this issue in the USA is on overdrive while most Americans forget the 1971 Pentagon Papers case wherein the US Supreme Court authorised the publishing of classified documents concerning the Vietnam war.

President John F Kennedy once remarked that “the very word ‘secrecy’ is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths, and to secret proceedings.” His assassination remains a mystery well hidden in a dark secret.

The Sixth Schedule of our Federal Constitution (FC), enshrined in Article 43(6), requires an oath of secrecy to “solemnly swear (or affirm) that I will not directly or indirectly communicate or reveal to any person any matter which shall be brought under my consideration or shall become known as . . . except as may be required for the due discharge of my duties or as may be specially permitted by the Yang di-Pertuan Agong.” The missing comma after the words ‘my duties’ is most revealing. So, if a minister wishes to release a secret, he or she has to first obtain the Yang di-Pertuan’s permission? That does not resonate well for the royal prerogative given the vagaries of semantics, semiology and linguistics.

Article 43(6) FC is mischievously painted by a very broad brush on a huge canvas. Where does one draw a line as to what constitutes a secret? An Opposition MP could not invoke parliamentary immunities in 1980 when he revealed the purchase of the Malaysian Navy’s four fast-strike craft that resulted in his chastisement by a court of law which unsurprisingly failed to consider whether the purchase and procurement procedures, or the actual existence of the hardware, were to be shrouded in secrecy, or both.

“Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity,” observed Lord Acton echoing the truism that sunshine is the best disinfectant. Secrecy associated with an independent judiciary when all judges are appointed, not elected, is not in the least mysterious.

For argument’s sake, a jailed former prime minister could have taken refuge in Article 43(6) FC claiming constitutional supremacy over legislation, but he did not. He took an oath of secrecy when he became a minister. He was jailed under various (parliamentary) laws thus conceding parliamentary supremacy over Article 43(6) that’s endowed with constitutional supremacy. A contradiction wrapped into a contradistinction?

“The basic purpose of the Freedom of Information Act is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed,” declared the US Supreme Court in NLRB v. Robbins Tire Co., 437 US 214, 242 (1978). This apex court said “no” to secrets; ours seems to take a different and difficult position despite s.2 of the Judicial Officers’ Code of Ethics 2019 (upholding of the integrity and independence of the judiciary free from influence, inducement, interference, etc.).

Malaysia’s Official Secrets Act (OSA) 1972 is said to stifle dissent and freedom of expression on account of its provisions that grant absolute authority to the government to declare any information an “official secret”. Article 43(6) FC and the OSA 1972 are caught in a constitutionally awkward tryst, while Penang and Selangor have state laws granting freedom of information.