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If good and proper governance is meant for the benefit of the governed, then the rights of the ordinary man must be fully respected, not just by words, but also by deeds. Political power, then, must be a constructive tool constantly checked by, and subjected to, the highest degree of scrutiny; instead of an oppressive weapon for the protection of the powerful at the expense of the not.

If the above statement of principle is undisputed, as it should be indisputable, then what reasonable justification can there be for a toll concession agreement between the Government and a company to be classified as a secret document that must be hidden from the public? Did the Government not enter into such a contract for the benefit of the people, and for the public good? If a document was prepared and made for the public good, what good is it to the public if its contents are so private and secretive?

Worse still, it now appears that the possession by an ordinary man of the knowledge of the contents of such a document may be considered a crime. Can that be right, when he is supposed to be the beneficiary of the agreement, which was executed on his behalf by the Government as his trustee?

These are some of the important and legitimate questions, which the Government has so far answered not with reasoning but with the threat of punishment. This surely does not sit with our vision of transparency and accountability.

The ordinary man, in this case, surely has the right to know. Just as a taxpayer has the right to know how tax monies are utilized, a toll-payer has the right to know how tolls are from time to time imposed or increased under an agreement that governs it.

One difference between an authoritarian regime and a democratic government is that, in the latter, it is unacceptable for the authority to simply stipulate a document as secret, and then expect that no questions can be asked of it, or of why it should be so. That cannot be a proper use of the provisions of the Official Secrets Act (leaving aside for the time being the question of whether or not the Act itself as it stands is repugnant in a true democracy). There must be strong and cogent reasons, and a definite link to security issues, before any document may be classified as an official secret. Security reasons here clearly refer to the security of the nation, and not to any desire to enable certain individuals to feel continually secure.

It is certainly not too late for the Government to reconsider the matter, which we strongly urge it to do. Investigation and action should be immediately dropped against those who supplied or received the toll concession agreement. On the contrary, the agreement should be made public. Let the truth be known. If all is well with the agreement, the public will understand and support it. If errors were made and some parts of the agreement are not truly in the public interest, the errors should nevertheless be disclosed, and remedial action should be taken as far as possible. An error will become a huge mistake when it is sought to be concealed.

Asking the wrong questions, and barking up the wrong tree, will yield the wrong answers and bear the wrong fruit. That is a recipe for disaster in any society. Malaysia must not go down that road.

Dated 3 February, 2007

Yeo Yang Poh
Chairman
Bar Council

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