The WMD-ODD scare

Look, all administrations, all governments lie, all officials lie and nothing they say is to be believed. That’s a pretty good rule. – Daniel Ellsberg, American political activist

In Malaysia the WMD-ODD (What Ministers Do – Or Don’t Do) scare is not totally unfathomable. Hidden agendas, ulterior motives, machinations and undercurrents do not escape keen public perceptions.

All lies and allies, serve the sinister underworld of secrecy, confidentiality and privacy under the guise of public service. Voters are the easiest to cajole and coerce. The discerning public watch helplessly with unwelcome shackles and unnecessary muzzles on freedom of speech.

“An Act to make provisions for declaring the functions and the transfer of functions of Ministers, for declaring the styles and titles of Ministers, and for incidental and connected purposes,” declares the Ministerial Functions Act 1969 (Act 2).

The Ministerial Functions Act 1969, as of 1 June 2013, consists of only five sections and no Schedule (including no amendment), without separate Parts. Secrecy, confidentiality or privacy? Pith and substance seem to be conveniently missing.

“Any reference in any written law or in any instrument, contract or legal proceedings to any Minister as such by the style or title of his office shall unless the context otherwise requires, be construed as a reference to the Minister for the time being conferred with the functions or charged with the responsibility or to the Minister for the time being assigned with such style or title,” declares section 4 of the Act. Too wordy.

A news report on May 11, 2019, quoted then de facto Law Minister expressing shock and surprise that the Federal Gazette “took down the ministerial functions order, except that of the prime minister”.

A disturbing feature concerning ministers can be gleaned from Article 43(6) Federal Constitution requiring ministers to take and subscribe to an oath of office and allegiance, and an oath of secrecy as set out in the Sixth Schedule.

Oaths of secrecy suggest an awkward and surreptitious immunity with a free pass for no transparency. Article 160 Federal Constitution (Interpretation) does not define an ‘oath of secrecy’ as does the Official Secrets Act 1972.

Taxation in Malaysia, for example, is under the purview of the Minister/Ministry of Finance (MoF). The Inland Revenue Board with an appointed Director General is answerable to the MoF (Minister/Ministry of Finance).

The Minister of Finance can be sued in his personal capacity for malfeasance, misfeasance and nonfeasance when probative mental element (mens rea) exists. Otherwise, the Ministry of Finance is vicariously liable offering escape routes.

In 2019, a unanimous Federal Court unerringly ruled that the prime minister, and ministers, can be sued for misfeasance in public office. The oath of secrecy, and the ‘who is a public officer’ mitigatory chant utterly failed.

Constitutional amendments are urgently required to combat the tort of misfeasance in public office despite the oath of secrecy. Relying on common law decisions can be dangerously dicey if trial judges overlook some crucial probanda (material facts) that causes raises eyebrows in appellate realms.

Misfeasance is the act of unintentionally engaging in an action or duty but failing to perform the duty correctly. However, malfeasance is the wilful and intentional act of doing harm.

Nonfeasance is failure to perform an act that is required by law. Anyone recalls when a responsible minister last inspected roadways nationwide that puts a severe strain on our wallets and to our vehicles’ suspension systems?

It’s shamefully evident when ministers bend to the will and whim of a domineering Executive. The Supreme Court in the 1986 Berthelsen case quashed the cancellation of a journalist’s employment pass by ministerial fiat, and indirectly discouraged the ministerial bending of knees to Executive overreach.

The awakened public attribute the WMD-ODD scare to two failed systems. One is Public Enemy Number One, nobly sanctified in Article 12 Federal Constitution (Rights in respect of education) which unfortunately does not prescribe or proscribe anything of substance.

The other perceived failure is the legal profession. It was dragged into disgrace and disrepute when then Director of the Legal Profession Qualifying Board was indicted for forging the Master List of the Year 2001 CLP results, and further charged with cheating under Section 417 Penal Code.

If the legal profession, and the judiciary by extension, are scarred to such extents, can they convince the public that they can and will faithfully render unpolluted justice bad laws notwithstanding? Juries must return if fact-checking matters, as it should.

The Malaysian Bar is self-elected and self-regulated, seemingly free from ministerial intrusion. The self-inflicted perception of the fox guarding the henhouse is inevitable and unstoppable.

The WMD-ODD scare manifests when elected leaders emulate the “respectable face of gutter politics,” an epithet bestowed upon Britain’s Enoch Powell, MP (1974-1987), who advocated racial discrimination like his race owned everything God-made and man-made.

Hopefully, elected MPs who become Ministers will strive to remember that if they choose public office as a career, they must be made of sterner stuff. Insightful and incisive, but never insulting the discerning public’s intelligence.

Vade mecum Ministers: If you are painfully right, and something or somebody suffers, you won’t be forgiven. If you are inanely wrong, everyone forgives you because you were unintentionally unaware and ignorant. Human nature stands eligible for a Nobel prize, or a Hollywood Oscar.

The views expressed here are those of the columnist and do not necessarily represent the views of the Sarawak Tribune.