In my humble opinion, the memoirs of former attorney-general Tommy Thomas are all spilt beans now.

Given the strong reactions – even condemnation – to the memoirs following their publication, could the publication be prevented or stopped by an interim injunction?

In the English case of A-G v Jonathan Cape Ltd; A-G v Times Newspapers Ltd [1976], the facts were straight forward.

C was a minister from 1964 until 1970. Throughout that period, C kept diaries that contained details of discussions held in cabinet and in cabinet committees, and disclosed the differences between cabinet on particular issues.

The diaries also contained details of communications made between C and senior civil servants together with criticisms of certain civil servants. The diaries were kept with the express intention of publication at some future date.

The fact that C was keeping such a diary intended for publication was known to C’s colleagues in the cabinet. C died in 1974.

After C’s death, a firm of book publishers proposed to publish C’s diaries in a series of volumes: The Diaries of a Cabinet Minister.

At that time, the existing cabinet contained a number of people who had been C’s cabinet colleagues between 1964 and 1970.

A newspaper, acting with the consent of C’s literary executors, published serialised extracts from what the book publishers intended to be the first volume of C’s diaries.

The attorney-general brought two actions (i) against the book publishers and C’s literary executors, and (ii) against the newspaper, seeking permanent injunctions restraining them from publishing the diaries or extracts therefrom.

In support of his claim, the attorney-general contended that all cabinet papers and discussions and proceedings were prima facie confidential, and that the court should restrain any disclosure thereof if the public interest in concealment outweighed the public interest in the right to free publication.

The basis of that contention was that the confidential character of those materials derived from the convention of joint cabinet responsibility, whereby any policy decision reached by the cabinet had to be supported thereafter by all members of the cabinet regardless of whether they approved, unless they felt compelled to resign.

Accordingly, cabinet proceedings could not be referred to outside the cabinet in such a way as to disclose the attitude of people in the argument that had preceded the decision, thereby inhibiting free and open discussion in the cabinet in the future.

The attorney-general also contended that advice tendered to ministers by civil servants and personal observations made by ministers regarding their capacity and suitability were also confidential and could equally be restrained by the court.

The Queen’s Bench Division – equivalent to the High Court in Malaysia – dismissed it, but only on the facts of the case.

According to the court, the first volume of C’s diaries dealt with events 10 years previously and disclosed no details of discussions that should remain confidential.

As such, since there was no grounds in law that required the advice given by senior civil servants and ministerial observations on their capacities to remain confidential, there were no grounds for restraining publication of that volume.

The court, though, delivered a strong pronouncement of the principles tending to such publications:

1. the equitable doctrine that a person should not profit from the wrongful publication of information received in confidence was not confined to commercial or domestic secrets but extended also to public secrets. It followed that where a minister received information in confidence the improper publication of such information could be restrained by the court when it was necessary to do so in the public interest;

2. the doctrine of joint responsibility was an established feature of the British form of government and therefore matters leading to a cabinet decision were to be regarded as confidential. The maintenance of that doctrine within the cabinet was in the public interest and the application of that doctrine might be prejudiced by the premature disclosure of the way in which individual ministers had voted in the cabinet on particular issues;

3. the courts had power to restrain the publication of cabinet material when it could be shown (a) that such publication would be a breach of confidence; (b) that publication would be against the public interest in that it would prejudice the maintenance of the doctrine of collective cabinet responsibility; and (c) that there was no other facet of the public interest in conflict with and more compelling than that relied on.

So, it is curious that no action was brought against the publishers and the author seeking an interim injunction before the scheduled release on January 30 to restrain them from publishing the memoirs or extracts therefrom. – February 3, 2021.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.