Sorry A-G, right to know does exist in the constitution – Mohamed Hanipa Maidin

I really dont know whether the present attorney-general (A-G) is going to leave a meaningful legacy in the history of such a noble profession. What is certain is that he 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 IMDB for "cheating" Bank Negara under the Exchange Control Act. He also decided to prematurely close the file against the prime minister on the RM2.6 billion controversial donation. Instead of prosecuting NFC's boss on the cowgate scandal, he prefered not to discontinue with the trial leaving the trial judge with no alternative but to acquit the accused.

Now, he is proposing a weird alternative to solve the problem of leakages of state secrets – 10 strokes 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 any official secrets. In defending such a harsh punishment, he takes the law in China as his legal precedent. He 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 document which stands on its own. In interpreting any provision of the constitution, even the doctrine of stare decisis (judicial precedents) is of a little value. The narrow and pedantic intepretation of our Federal Constitution would only expedite its suicidal process. That is unfortunately what the present A-G is doing to our esteemed constitution.

It is not known how he 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 phrase "right to know" justifies the denial of such a fundamental right, then the A-G should have also extended such a logic to other phrases as well. The 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 A-G knows or otherwise, the right to know actually exists in our constitution. Such a right is encapsulated in the right to freedom of speech enshrined in Article 10 of the 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.

As far as his suggestion to amend the Official Secret Act (OSA) is concerned, he is definitely out of touch to the present reality. In the absence of culture of transperency, accountability and good governance in doing any business, any state in the world is bound to face the nightmare of "wikileaks epidemic". When any legitimate and genuine right to know is not duly entertained by the government, the latter is in fact opening the floodgates of leakeages of state secrets. Amending OSA is not the remedy.

If transparency reigns supreme, there would be no justification for people to share any state secrets 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. – February 8, 2016.

* Mohamed Hanipa Maidin is Sepang MP.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.