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It's illegal to discuss Malaysia's official secrets...but what's an official secret?

4 months ago Denise C.

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Do you remember a scene from Indiana Jones: Raiders of the Lost Ark where a box is wheeled into a storage facility and marked, "TOP SECRET"? While we often see such scenes dramatised by Hollywood, did you know that Malaysia has its own Official Secrets Act ("OSA") as well? It has been around since 1972 and is based off United Kingdom's Official Secrets Act.

 

Image screencapped from youtube.com via Movieclips

Many of us are not familiar with the OSA as we are usually caught in the controversies of the Internal Security Act or the Sedition Act. However, there were 28 cases brought under the OSA from 2011-2016. In fact, even a foreign journalist has been convicted under this Act way back in 1995 for writing about Malaysia's relationship with China and even more recently, Rafizi Ramli had his sentence under the OSA upheld by the High Court. He was appealing against an 18-month jail term for possessing the 1MDB audit report without approval.

So the question is, what official secrets can you possibly get in trouble for revealing under this Act?

 

Anything can be an official secret (Really!)

Image from tv14.my

We would think that the Official Secrets Act 1972 would only deal with sensitive information that spies from other countries would kill to get their hands on. However, this is far from the truth. The Act provides that anything at all can be declared a secret. In order for something to be declared top secret, all it needs is (i) someone who is in the public service and (ii) has been appointed by a minister, in order to declare it as a top secret.

Section 2B OSA 1972:

"A Minister, the Menteri Besar or the Chief Minister of a State may appoint any public officer by a certificate under his hand to classify any official document, information or material as “Top Secret”, “Secret”, “Confidential” or “Restricted”, as the case may be."

This means that it doesn't matter if the situation relates to a document or some kind of information or material, it falls under the definition of an official secret once classification has been done -- and it's not only documents or information that can be classified a secret.

The OSA also allows physical locations to be classified a "secret", referred to in the OSA as a "prohibited place". These are typically military areas, government occupied areas, certain detainment areas and anything else the Minister classifies as such.

 

Section 2 (in part):

“"prohibited place” means—

(a) any work of defence, arsenal, naval, military or air force establishment, barrack, camp or station, factory, dockyard, aerodrome, mine, minefield, ship or aircraft belonging to or occupied by or on behalf of the Government or any telegraph, telephone, wireless or signal station or office so belonging or occupied, and any place belonging to or occupied by or on behalf of the Government and used for the purpose of building, repairing, making, proving, testing or storing any munitions of war, or any photographs, drawings, plans, models or documents relating thereto, or for the purpose of getting or storing any metals, oil, mechanical transport spirit or aviation spirit or minerals of use in time of war;

(b) any place not belonging to the Government where any munitions of war, oil, mechanical transport spirit, aviation spirit, fuel or supplies or any documents relating thereto, are being made, repaired, gotten or stored under contract, with, or with any person on behalf of, the Government, or otherwise on behalf of the Government;

(c) any camp, barrack or place where prisoners of war, members of the armed forces, internees or detainees are detained;

(d) any place which is for the time being declared by the Minister, by order published in the Gazette, to be a prohibited place for the purpose of this Act;"

However, even every day things have been classified as official secrets before. Here are a few examples that you'd probably be familiar with:

- Public exam papers (ie, UPSR, PMR)

- Air pollution Index

- Ghosts

- Sex crime statistics

You can read more about the reasons behind the classifications in this article.

 

There are too many ways to get arrested under the OSA (Really!)

Before we dive into how you can be arrested for failing to provide information about someone else blabbing an official secret, what exactly counts as a wrongful communication of an official secret? This article would break this point up.

 

Communicating an official secret - a.k.a "bocor rahsia"

Image from washingtonexaminer.com

Section 8 tells us that there are several ways you can be found guilty of communicating an official secret. Here is the simplified version:

1. Communicating official secrets to another person who is not supposed to learn of it

2. Using the official secret for the benefit of a foreign country or use it in a way that is against the interests of Malaysia

3. Continuing to possess an official secret even after you have been directed to return or destroy it

4. Failing to take reasonable care or act in such a way to compromise the safety of the official secret

If you are caught under this section, you can face up to seven years of jail time. Section 8(2) further explains that even if you are not the person divulging the secret, you can be arrested for receiving information which you know or should know is against the OSA. This provision stands unless you can prove that you really did not want to receive the secret.

Section 8(2)

"If any person receives any official secret...knowing or having reasonable ground to believe at the time when he receives it, that the official secret...is communicated to him in contravention of this Act, he shall, unless he proves that the communication to him of the official secret...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."

 

Spying - a.k.a James Bond time

Image from n-tv.de

Aside from the above, the OSA also covers James Bond-esque scenarios where you can thrown into jail for life if you were caught spying. Spying occurs when with any purpose that is prejudicial to Malaysia's safety (in this context, with the intention of spying), you enter a prohibited place, to collect and pass on information that can be useful to a foreign country.

Section 3:

"If any person for any purpose prejudicial to the safety or interest of Malaysia— (a) approaches, inspects, passes over or is in the neighbourhood of, or enters any prohibited place; (b) makes any document which is calculated to be or might be or is intended to be directly or indirectly useful to a foreign country; (c) obtains, collects, records, publishes or communicates to any other person any secret official code word, countersign, password or any article, document or information which is calculated to be or might be or is intended to be directly or indirectly useful to a foreign country, he shall be guilty of an offence punishable with imprisonment for life."

There are also a bunch of sections that relate to how you can be caught in relation to entering a prohibited place. For example, section 4 basically tells us that you are not allowed to gather any information, including photographs (section 6) in a prohibited place without permission from the authorities.

 

Failure to disclose information to the authorities - a.k.a keeping a secret that you know a secret from the police

Image screencapped from youtube.com via ExplosmEntertainment

Now that you know what is considered wrongful communication, you have to provide information of such attempts to expose official secrets when you are questioned by any police officer above the rank of Inspector, any member of the armed forces who is on guard duty or by a public officer. Like wrongful communication, a failure to abide by this can land you in jail.

Section 11:

"If any person who has any information relating to an offence or suspected offence under this Act fails— (a) to give, on demand, such information...when required to do so by— (aa) any police officer above the rank of Inspector; (bb) any member of the armed forces employed on guard, sentry, patrol or other similar duty; or (cc) any public officer authorized by the Minister, he shall be guilty of an offence punishable with imprisonment for a term not less than one year but not exceeding seven years."

 

But that's not all! - a.k.a tak habis habis point ini

There are also a whole bunch of other sections that can catch you for different kinds of crimes but for the sake of keeping this article digestible, here are the rest of the relevant sections:

1. Section 5 - Making a false statement or declaration to obtain a permit to enter a prohibited place

2. Section 7A - Failure to report a request for official secrets

3. Section 7B - Confiding in a foreign agent

4. Section 9 - Impersonating an official to enter a prohibited place

5. Section 10 - Interfering with a police officer or armed force member in a prohibited place

6. Section 11 - Failing to produce messages when asked by the Minister

7. Section 12 - Harbouring someone that has committed a crime under the OSA

 

But what if I didn't know it was a secret?

Image from imgur.com

Actually, similar to drug laws where there is the presumption of knowledge and presumption of trafficking, the Official Secrets Act tells us that it is not necessary to show that you were acting with the intention to harm Malaysia's safety or interest. You can be convicted if from your conduct, the circumstances, or your character, a purpose prejudicial to Malaysia's safety or interest can be deduced (Section 16(2)). This ties in with the presumption that any official secrets you have with you, is for the purpose of compromising Malaysia's safety or interest.

To explain it simply (though less legally accurate), the authorities don't have to prove that you had intention, they only had to think that you had the intention.

[READ MORE: Why does Malaysia want to give a lighter punishment to drug traffickers?]

Section 16 (in part):

"In any prosecution for an offence under this Act, unless the context otherwise requires (3)...it shall be presumed until the contrary is proved, to have been made, obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of Malaysia."

In addition to the above, section 18 also tells us that you can be arrested without a warrant. This arrest can even take place when the police have reasonable suspicion that you are about to commit a crime under the OSA. As mentioned earlier, punishments vary according to what you were found guilty of and can span from a year in prison to a lifetime in prison.

 

How do I get access to sensitive information?

The OSA has come under tons of criticisms since it first came into place and many parties have called for this Act to be replaced with the Freedom of Information Act.

 

However, the good news is that Penang and Selangor have taken the initiative to come up with the Freedom of Information Enactment where if you wish to obtain information, you can apply for it through the respective channels. While federal law does not have the same provisions, it is a good sign that several states have taken steps to be more accessible to the public.

At the end of the day, it cannot be denied that there are some kinds of information or places that have to be guarded from public knowledge. The criticisms which are directed towards the Official Secrets Act are mainly concerned with how wide and discretionary the powers are under it to declare something to be an official secret.

This article is for informational purposes only and should not be taken as legal advice. Every situation is unique and dependent on the facts (ie, the circumstances surrounding your individual case) so we recommend that you consult a lawyer before considering any further action. All articles have been scrutinized by a practicing lawyer to ensure accuracy.
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