Getting the Freedom of Information law Malaysia deserves

When a Petaling Jaya association finally got its hands on documents related to the privatisation of parking fee collection in Selangor through a Freedom of Information (FOI) request, the moment was hailed as a small victory for democracy.

It was a milestone in Malaysia’s continuing struggle to give ordinary citizens more power, through FOI laws, to scrutinise how their government spends taxpayers’ money.

But the excitement was short-lived. After initially refusing to release the documents on the grounds that they were official secrets, the state government was compelled to disclose most of the documents related to the deal. However, several key documents were missing.

According to a spokesperson for the association, the missing documents have impaired its ability to properly analyse the deal and determine whether the state government’s new plan would be a net benefit to the public.

Irfan Shaharuddin of the Centre for Independent Journalism (CIJ) said the case was an example of a flaw in the Selangor enactment that is repeated in the federal-level FOI Bill.

The Bill is back in the spotlight as Parliament prepares to reconvene on Oct 5. But questions are being raised over whether amendments to strengthen it and address its flaws will be revealed in time for it to be passed, particularly amid calls for an early general election before the Madani administration’s term ends next year.

Is more feedback necessary?

As seen in the Selangor case, one of the Bill’s flaws is the lack of a harm and public interest test, which any effective FOI law needs, said Irfan, who heads CIJ’s Right to Information programme.

Before refusing to provide information, public agencies need to conduct a harm test and assess whether disclosure would cause real, identifiable, and substantive harm to a protected interest, such as national security or privacy.

“The public interest test will determine that even in circumstances where there is an exemption to giving out information, disclosure must be made if it serves greater public interest to do so,” Irfan added.

“By doing so, the justification for refusal to disclose information will be made on a clear and measurable basis”.

Including a harm test and other fixes are among a slew of proposals that experts and supporters of the Bill have submitted to the Madani administration and the parliamentary special select committee (PSSC) reviewing it.

So far, the PSSC has not announced whether the amended Bill will be tabled in Parliament next month. However, its chairperson Azalina Othman Said announced that the PSSC will hold a town hall session on Sept 28 to gather feedback from stakeholders, according to a Bernama report.

One official from a civil society organisation that has closely monitored the Bill’s development asked: “Why do we need another town hall to gather feedback when so much feedback has already been given to the government when it was drafting the Bill?”

The more critical question is whether the Madani administration can truly deliver a strong and effective FOI Act that gives ordinary citizens the power to keep the government honest.

Rights, exemptions, and an independent body

The FOI law is aimed at giving individuals in Malaysia the power to request information held by the government and public agencies. This is based on the principle that information held by these bodies ultimately belongs to the public, with the government merely acting as its custodian.

The Bill was drafted by a division under Azalina, the cabinet minister in charge of law and institutional reform. Officers involved in drafting it had consulted experts in "right to information" laws, including those from CIJ.

READ MORE: From secrecy to sharing: An explainer on the Freedom Of Information Act

However, the Bill eventually tabled on July 13 was described by CIJ and other organisations, including the Bar Council, as “regressive” and “among the worst of its type in the world”.

On the bill’s flaws, lawyer Andrew Khoo said:

“The proposed FOI bill clearly betrays the intent of government - giving citizens a form of ‘rights’ but refusing to acknowledge that those ‘rights’ have constitutional protection."

One of the Bill’s more problematic aspects is Clause 22, which states: “Nothing in this Act shall be construed as fundamental liberties under Part II of the Federal Constitution.”

Khoo (below), a former co-chair of the Bar Council’s constitutional law committee, said the government should have embraced “the concept of prismatically reading the right to life as set out in Article 5 of the Federal Constitution to include the right to information”.

“Or the government could have added the right to information as part of Article 10, which deals with freedom of expression.

“If they were truly sincere, they would move a constitutional amendment to entrench the constitutionally protected right to information and privacy of information."

The Bill’s other major flaws include:

1. Too many exemptions: These include official documents, investigations by government bodies, and data related to the commercial interests of public agencies.

“This creates a real risk that information concerning corruption, abuse of power, environmental harm, or human rights violations could remain hidden even where disclosure is clearly in the public interest,” said a coalition of civil society organisations on the exemptions.

2. Lack of an independent oversight body: There is no independent body to ensure the FOI law is properly implemented, and requests are adequately addressed. Such a body would also handle appeals when information requests are rejected.

“The FOI Bill should establish a specialised Information Commission to oversee the implementation of the FOI framework effectively – “[i]ndeed, many much smaller and poorer countries have also done this,” said the Centre for Law and Democracy, an international civil society organisation that reviewed and rated Malaysia’s Bill.

Influencing the PSSC

The above feedback and more have been provided by civil society organisations and lawmakers to the PSSC in the hope that they can be used to fix the Bill’s flaws. However, members of the PSSC admit that the challenge is balancing demands from civil society with those from within the government.

“CSOs want a more progressive and transparent mechanism for FOI disclosure, while there are some in the state who want a more restrictive bill that allows for certain information to still be controlled by the state apparatus,” said Bangi MP Syahredzan Johan (below), who sits on the PSSC.

“Thus the committee must strike a balance between freedom of information and the need to protect certain information from disclosure under certain categories,” he told Malaysiakini.

It is uncertain whether the PSSC will be able to complete its review of the Bill and draft amendments in time for it to be tabled again during Parliament's October sitting.

A spokesperson for the Prime Minister’s Department said an announcement on the matter would be made at the Sept 28 town hall.

Supporters of reforming the Bill said this means there is still an opportunity to influence the PSSC at the town hall.

“The town hall can serve as an important platform to encourage and hold the PSSC accountable in drafting a progressive, human rights-based FOI bill,” said Nalini Elumalai of Article 19, one of the civil society organisations campaigning for a strong FOI law.

“We hope the town hall process will strengthen the proposed legislation without delaying the tabling of an FOI Bill, which CSOs have long advocated for,” she added.

Tasek Gelugor MP Wan Saiful Wan Jan echoed the view that the town hall was a necessary part of the process to review the Bill, despite its weaknesses having been made public for several months.

“It is important for us in the legislature to hear directly from stakeholders, without any filter from the executive.

“The delay is inevitable because the executive's draft is weak and does not fulfil the real spirit behind our demand for an FOI Bill. We must improve it,” said Wan Saiful, who is part of the federal opposition Perikatan Nasional coalition.

Asked whether the Madani administration would be able to pass an effective law before its term ends, and whether PN could finish the job if it comes to power, Wan Saiful said:

“PN is more receptive to CSO demands. I am sure we can do better if we are in government. For a start, I can assure you that we will move early, not like the Madani government, which is moving only when they are desperate and running out of time."

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