The Speaker, Tan Sri Pandikar Amin Mulia should retract his media conference statement last Thursday that the three former Cabinet Ministers, former Deputy Prime Minister Tan Sri Mujhyiddin Yassin, former Rural and Regional Development Minister, Datuk Seri Shafie Apdal and the former Second Finance Minister Datuk Seri Husni Hanadzlah might have broken their oaths of secrecy as Cabinet Ministers when debating the Budget 2017 in Parliament, as it was such ill-advised and unfortunate statement by the Speaker which triggered off a chain of deplorable events – like the baseless police reports lodged by busybody-NGOs, the Malaysian Malay Network Organisation (JMN) and Kuala Lumpur Federal Territory N87 Club, and police action to investigate the three former Cabinet Ministers.
If the Speaker had not made the ill-advised and improper statement at last Thursday’s media conference, it would not have triggered off this chain of unfortunate and deplorable incidents.
Pandikar should accompany the retraction with a bold and clear-cut statement reaffirming the traditional parliamentary principle that MPs enjoy parliamentary privileges and immunity and the police should not challenge the parliamentary privileges of Members of Parliament except in clear-cut cases provided by the Constitution.
At present, there is only one circumstances under the Constitution where MPs’ parliamentary privileges and immunity are removed, i.e. where MPs in their speeches in Parliament violate Sedition Act 1948 Clause 3 (1) (f) questioning “ any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152, 153 or 181 of the Federal Constitution” which does not apply in the speeches of Muhyiddin, Shafie and Husni.
The statement today by the Minister in the Prime Minister’s Department, Datuk Azalina Othman does not help at all, as it is as ill-advised and unfortunate as Pandikar’s media conference statement last Thursday. Azalina just cannot transform the Speaker’s wrong and improper statement into a right and proper one!
What upset the Barisan Nasional Ministers and MPs about the speeches of Muhyiddin, Shafie and Husni was that they raised the issue of the 1MDB financial scandal, which has given Malaysia the infamy and ignominy of being regarded world-wide as a ‘global kleptocracy’.
But the BN Ministers and MPs can feel as crossed and upset as they want with the three former Ministers, but their unhappiness does not strip the parliamentary privilege and immunity enjoyed by Muhyiddin, Shafie and Husni in their speeches during the 2017 Budget debate, as they did not transgress the four sensitive issues entrenched by the Sedition Act and the Constitution.
Although Azalina is right that police investigation does not equate to a guilty conviction, she is very wrong when she suggested that the police are entitled to initiate investigations just because police reports had been lodged.
With their proven capacity and propensity for mischief, it is not difficult to imagine hordes of UMNO/Barisan Nasional “hired guns” lodging mass reports against every Pakatan Harapan/Opposition MP and political leader on completely baseless and mischievious grounds.
Does this mean that the police are entitled to harass Pakatan Harapan/Opposition MP and political leader by initiating mass investigations into these false reports?
As the only basis for criminal action against MPs is when they violate the Sedition Act on the four entrenched “sensitive issues” questioning the sovereignty of Rulers, Article 152 on the National Language, Article 153 on Special Provision for Malays and citizenship provisions, any other circumstances including raising the 1MDB scandal and the Official Secrets Act are not ground for any police action or investigation against an MP for his or her speeches in Parliament.
Any person or NGO who lodges a police report against an MP or former Cabinet Minister for their speeches in Parliament other than concerning their questioning one of the four entrenched sensitive issues would be lodging false reports and should themselves be the subject of police investigations.
At least, Azalina’s knowledge of the law has caused her to concede that MPs have criminal and civil immunity over what is said by MPs in Parliament, even for offences under the Official Secrets Act (OSA).
But what boggles the mind is how she could square the circle by asserting that MPs who were or are currently holding a ministerial post should uphold the oath of secrecy they undertook, and avoid leaking information that was discussed inside the Cabinet.
I am not aware that Muhyiddin, Shafie and Husni had revealed any Cabinet secrets in their speeches in Parliament.
However, for Azalina’s information, MPs’ parliamentary immunity is absolute except with regard to the four entrenched sensitive issues in Clause 3(1)(f) of the Sedition Act, which means that the Official Secrets Act cannot be used by the police to bar or prosecute a former Cabinet Minister from speaking up in Parliament.
If she wants former Cabinet Ministers to lose parliamentary immunity and be liable for criminal prosecution for violating the OSA, then she has to bring an amendment to the Malaysian Constitution to further abridge and abrogate MPs’ parliamentary privilege and immunity, which will require two-thirds parliamentary majority to become law.
Will Azalina do this?