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The question also concerns government privilege in disclosing confidential Information from the public. In this situation, Young & Partners has been asked to represent the parties that had died resulting from the negligence act of the government In building the large dam In So. Keenan. However, when asked for a copy of Inquiry report from the government It was turned down on the ground that the matter Involved ‘affairs of the state’ and so government privilege applied. So the Issue here Is whether the government can use Its privilege to refuse the quest of Inquiry report by Young & Partners In representing the deceased In So.
Kernel Incident. In Malaysia, the government has the privilege not to produce certain confidential information which relate to the state affairs and few provisions in the Evidence Act 1950 has provide for this privilege. Section 123 of the Act provides that production of any unpublished officials records relating to state affairs is not permitted unless with consent given by the head of department, subject to the Malaysian government or Chief Minister of state, whomever related.
Section 124 provides that a public officer Anton be compelled to disclose any official information communicated to him in confidence, where public interest will suffer from the disclosure. Section 162(2) further provides that where the court sees fit, they may inspect the document unless it refers to state affairs. The question of this privilege owned by the government in refusal to produce documents in the court has been discussed in B. A. Ray v Sprang Gaur [1978] 2 ML 146. In that case, death of decease was due to negligence of medical officer of district hospital, in which, damages was claimed by respondent.
The respondent issued a notice to produce the reports and findings to a committee of inquiry set up by the hospital in which the appellant objected to do so on the ground that the reports and findings are unpublished official records, and therefore were privileged from disclosure under section 123 of the Evidence Act. The Federal Court dismissed the appeal and pointed out that confidentiality by Itself was not a separate head of privilege, but could be a material consideration to bear In mind In determining Neither the public interest fell on the side of disclosure or non-Dolores.
Since the documents are not ‘unpublished document relating to affairs of the state’, the government could not screen the alleged wrongful act from the purview of the court on the ground that It was an affair of State demanding protection. In applying to the question provided, the government indeed had the privilege not to section 123 of the Evidence Act 1950 and section 124 provides that no public officer can be compelled to disclose such info where public interest will suffer from the disclosure. The court would inspect the document unless it refers to state affairs as dated in section 162(2).
So, Just by looking at all these provisions, Young & Partners will not be able to request for the copy of inquiry report from the government due to application of government privilege. However, referring to the case of B. A. Ray v Sprang Gaur, the court will look closely whether the inquiry report requested by Kong & Partners does indeed relate to state affairs which public interest will suffer from the disclosure of the information. In our view, an inquiry report on the construction of a large dam in a rural area does not really relate to affairs of state.
Nat amount to affairs of state would be something relating to national security, diplomatic relations, internal security or sensitive diplomatic correspondence, which information if disclosed would cause harm to the public. This however is not so in our question. So, in this situation, the government could not use the privilege as the documents are not related to state affairs. In conclusion, the government could not refuse the request of inquiry report from Kong & Partners regarding the construction of the faulty dam in So Korean.