Azalina: No point in FOI law if it becomes 'Control of Information Bill'

The Freedom of Information (FOI) Bill must not end up controlling access to information, said Minister in the Prime Minister’s Department (Law and Institutional Reform) Azalina Othman Said.

Azalina stressed that the government must ensure the proposed law serves its purpose, and not merely pass it just to fulfil a commitment.

“We cannot have an FOI Bill just for the sake of having an FOI Bill. There is no point calling it FOI if in the end it becomes ‘Control of Information Bill’,” she said in her closing remarks at a national town hall on the bill in Parliament today.

Concerns were raised during the session over existing secrecy laws, risks to journalists and a provision restricting how courts could interpret the proposed law.

The FOI Bill was tabled for its first reading on July 13 before the Dewan Rakyat referred it to a Parliamentary Special Select Committee (PSSC) chaired by Azalina.

The 12-member committee was tasked with examining the bill’s scope, structure and drafting, proposing amendments and producing a report within three months, with provision for an extension.

Azalina today reiterated the commitment to have an FOI Bill this year, as promised by Prime Minister Anwar Ibrahim, but stressed that its substance mattered.

Risk of being charged

Azalina questioned the bill’s value if media practitioners continued to risk prosecution for their reporting.

“How can you report if you’re at risk of being charged for reporting? If everything is under (risk of) sedition, what’s the point?

“Might as well we throw the bill. Let’s go back to where we are and live as we have,” she said.

New Straits Times group editor Farrah Naz Karim (above), citing more than two decades of journalism experience, earlier raised concerns about a provision that requires applicants to explicitly state the intention behind their request.

Among others, she questioned whether journalists will be held liable for using requested information for purposes other than what was originally stated, based on an ongoing story development.

Set a high standard

Centre for Independent Journalism (CIJ) executive director Wathshlah G Naidu also urged the PSSC to produce a version that sets a high standard for the right to information.

“That means information must be open by default and there must be maximum disclosure,” she said.

Wathshlah (below) argued that the proposed law must take precedence over existing secrecy provisions, including those under the Official Secrets Act (OSA).

“This law must ensure it supersedes any other secrecy provisions, and if the government is committed to what it has pledged, the OSA must be repealed in its entirety and the grounds of exemption under OSA included in the (FOI) bill, or the OSA must be amended.”

Info belongs to the public

Malaysian Media Council chairperson Nallini Pathmanathan, meanwhile, argued that the bill should begin by recognising that information belongs to the public, rather than focusing on procedures for obtaining it.

She linked access to information to the freedom of speech and expression under Article 10(1)(a) of the Federal Constitution.

“You can’t speak or express yourself without FOI. You need that. So it is the basis on which this bill is being dealt with that is the issue here.”

Nallini (below) also questioned Clause 22, which she described as preventing courts from using the proposed law to enlarge or otherwise construe Article 10.

“Generally speaking, you will be hard put to find any other legislation that purports to tell the court what to do. Because there is the basic concept of separation of powers - judiciary, executive, legislative. The three don’t usually interfere with each other.”

She warned that Parliament directing the judiciary in this manner could be unconstitutional.

Constitutional amendment debate

Nallini also argued that a constitutional amendment was unnecessary to recognise the right to information because freedom of speech and expression was already subject to constitutional restrictions, including those concerning national security.

Responding to criticism of the bill, Azalina said the draft prepared by the Legal Affairs Division (BHEUU) differed from the version being discussed.

“Some of you ask, why did you put a terrible bill there? Honestly, for BHEUU, to be fair, it was not their bill. The draft was different. I’m going to be honest," she said, without elaborating on the differences or how they arose.

Azalina said representatives of the Attorney-General’s Chambers were present to listen but would not respond.

She described the AGC’s duty as protecting the country’s interests, while MPs voiced the rakyat’s concerns and civil society acted as a watchdog, adding that these considerations had to be balanced.

In her closing remarks, Azalina also said the PSSC would deliberate on whether the right should be expressly guaranteed through a constitutional amendment or interpreted through Article 10.

She said pursuing an amendment requiring a two-thirds majority could delay the bill, stressing that this was her personal view as Pengerang MP.

“Personally, not my party, me as Pengerang MP, I’m concerned that if there is a constitutional amendment by getting two-thirds, we may delay the bill. That is my view.”

The committee would also consider the existing legal framework, including the OSA, in deciding how to proceed, she said.

Following today’s town hall, Azalina said the PSSC will deliberate all inputs to produce its own version of the FOI Bill, with a targeted tabling in the Dewan Rakyat by year-end.

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