Perhaps this should be the icon of our Parliament House:
Lin
Pandikar: Former ministers might have breached oath of secrecy
“There are certain guidelines we need to follow. 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.
“It is all there, so I advise that although you know something, you need to be careful there is Standing Order 36(12) and so we need to keep certain things in confidence,” Pandikar explained.
He also said it was unethical to reveal private Cabinet matters and former ministers should not misuse their previous posts.
Pandikar however said the Parliament would not be able to take action against them and he could only remind them of their wrongdoing as the House Speaker.
“All I can do is remind them. Remember Sedition Act and OSA. But that's all I can do, just remind them,” he said.
Lawyer Azhar Harun (Art Harun) commented on the matter in Facebook:
"Constitutional Protection of the MPs and the OSA
The public opinion recently made by the Speaker of the Parliament, Tan Sri Pandikar Amin Mulia, that Tan Sri Muhyiddin Yasin and Datuk Seri Husni Hanadzlah may have breached the law as well as their oath of secrecy while debating the budget in the Parliament brings into sharp focus the warp-ish understanding of the law and the inner workings of parliamentary democracy residing within some of the people who are actually entrusted to uphold the law and parliamentary democracy in our country."
"For the record, when Tan Sri Muhyiddin stood up to debate the budget recently, the Speaker, for whatever reason best known to himself, had seen it fit to leave his sit and handed over his duties to the Deputy Speaker. He was not there in the House when TSMY made his speech.
The Deputy Speaker in all his wisdom did not at any time stop TSMY from delivering his speech. Nor did the Deputy Speaker refer to TSMY any standing order that has been breached or about to be breached by him during his speech.
A Speaker is supposed to be impartial. His primary duties is to ensure a smooth and peaceful proceedings of the House. He implements the Standing Orders. He safeguards the dignity and integrity of the House. He is there as an arbiter of propriety and decorum.
Being so, he should jealously protect the sanctity of the House and the rights of all MPs to participate in the proceedings of the House rather than issuing legal opinions outside the House and advising MPs of what they are not supposed to do.
Perhaps before making his opinion public, the Speaker ought to have acquainted himself with Article 63 (2) of the Federal Constitution. That Article provides:
Perhaps before making his opinion public, the Speaker ought to have acquainted himself with Article 63 (2) of the Federal Constitution. That Article provides:
“No person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in any proceedings of either House of Parliament or any committee thereof.”
That is the Constitutional protection accorded to every person who speaks or votes while participating in the proceeding of the House. That protection is almost absolute.
The protection can only be displaced if the person is charged under certain laws, namely, the Sedition Act and laws that are passed in accordance with Article 10(4). Suffice if it be said here that TSMY had not at any time during his speech touched on subjects that within the purview of or breached any laws passed under Article 10(4).
The IGP, proving himself to be very efficient as he normally does when it comes to calling the opposition to the police station, with utmost haste announced that the police will be investigating the matter.
As the case with the Speaker, perhaps the IGP also should have acquainted himself with the aforementioned Article 63(2) and save his staff some precious time to enable them to solve other serious crimes like murder, robberies, plundering of state assets, criminal breach of trusts and grand thefts.
Furthermore, a closer look at the OSA and its blanket prohibition against divulging of all “Cabinet documents, records of decisions and deliberations including those of Cabinet committees” brings a clear Constitutional issue about the legality and thus, validity, of the OSA itself.
Freedom of speech and expression is a right of every citizen. This right is guaranteed by Article 10 (1) of the Federal Constitution.
This right however is not absolute. The Federal Constitution itself provides that laws may be passed to restrict this freedom of speech and expression. The question then is: what laws can be passed to restrict this freedom?
That is answered by Article 10 (2) (a).
Briefly, laws can be passed to restrict freedom of speech and expression only if such laws are deemed necessary or expedient:
a) in the interest of the security of Malaysia;
b) in the interest of friendly relations with other countries;
c) in the interest of public order or morality; and,
d) restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence.
a) in the interest of the security of Malaysia;
b) in the interest of friendly relations with other countries;
c) in the interest of public order or morality; and,
d) restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence.
The OSA is a piece of law that restricts freedom of speech and expression. Being so, the OSA must conform to Article 10 (1) and (2). It cannot supersede those Articles. It cannot go beyond those Articles. That is because the Federal Constitution is the supreme law of the land and thus all other laws must not be repugnant against any of its provisions. The Parliament, in passing laws, must also not exceed its powers as provided by the Federal Constitution.
If laws are passed that exceeds the powers given by the Federal Constitution, those laws are ultra vires the Federal Constitution. Any law that is ultra vires the Constitution is therefore invalid and void to that extent.
If laws are passed that exceeds the powers given by the Federal Constitution, those laws are ultra vires the Federal Constitution. Any law that is ultra vires the Constitution is therefore invalid and void to that extent.
As mentioned earlier, the OSA seeks to make secret, and therefore impose a blanket ban on the discussion on or communication of, all documents that are specified in its schedule.
The schedule lists “Cabinet documents, records of decisions and deliberations including those of Cabinet committees” as those documents that are secret.
Rather than restricting the schedule to, for example, “cabinet documents and records of decisions and deliberations in respect of the security of Malaysia” or any other categories that are enumerated in Article 10(2)(a) above, the schedule imposes a blanket ban on ALL cabinet document regardless of their nature or character.
In essence, if the Cabinet sits down to discuss flood mitigation plans, the rate of toll or any other matters that has nothing to do with those matters in Article 10(2)(a), the OSA seeks to make them secret.
Now, isn’t that beyond the provision of Article 10(2)(a).
If it was, wouldn’t the OSA be void and invalid for being ultra vires the Federal Constitution?
I don’t know the answer.:
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