The Malaysian Bar welcomes the robust discussions at the recently concluded Forum on Freedom of Information, held on 29 June at the Asian Institute of Chartered Bankers, Kuala Lumpur.
Jointly organised by the Bar Council’s constitutional law and human rights committee and the Centre for Independent Journalism, the hybrid forum served as a vital platform to address the urgent need to establish a pragmatic, effective and federal-level freedom of information framework in Malaysia.
Transparency in governance is the foundational hallmark of a civilised, functioning democracy; secrecy remains anathema to the rule of law.
The Malaysian Bar recalls page 38 of Pakatan Harapan’s 2022 general election action plan, which explicitly promised that the coalition would enact a freedom of information act to limit the application of the archaic Official Secrets Act 1972, with exemptions (if any) to be determined by a parliamentary committee rather than left to the discretion of an individual minister.
The constitutional right to freedom of opinion and expression, which includes the right to seek, receive and impart information, is recognised globally as a basic human right and is explicitly encapsulated in international human rights instruments and frameworks. [Article 19 of the Universal Declaration of Human Rights; Article 19 of the International Covenant on Civil and Political Rights; Article 10 of the European Convention on Human Rights; and Principle 23 of the Asean Human Rights Declaration.
The Federal Court in Sivarasa Rasiah v Badan Peguam Malaysia & Anor (2010) held that the freedom of speech and expression [Article 10(1)(a) of the Federal Constitution] inherently encompasses the right to receive information.
A freedom of information act cannot operate in a legal vacuum. To truly institutionalise open governance, comprehensive legislative overhaul is required. The new freedom of information act must explicitly override, amend or repeal competing and restrictive legacy statutes, some of which date back to colonial times and are incompatible with modern civilised democracies [Official Secrets Act 1972; Printing Presses and Publications Act 1984; Section 203A of the Penal Code; Whistleblower Protection Act 2010; Personal Data Protection Act 2010 and all statutory secrecy clauses currently binding public authorities].
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The Malaysian Bar fully endorses and insists upon the embedding of international standards, such as the Right to Information Rating Methodology, as adopted by the United Nations Educational, Scientific and Cultural Organization (Unesco) to form the bedrock of our hoped-for freedom of information act:
- Explicitly state that the freedom of information is a fundamental liberty under Article 10(1)(a) of the Federal Constitution, thereby codifying and entrenching the landmark principle established in the Sivarasa Rasiah case.
- Ensure every citizen has easy access to government information without exorbitant fees. Crucially, applicants must not be required to provide justifications for their requests or be frustrated by obtuse or obscure procedures or requirements.
- Application mechanisms must be simple and fully accessible to all, including people with disabilities. Information releases or refusal decisions must be rendered swiftly within a maximum one-month timeframe or less.
- Exemptions must be narrow and strictly limited to the restrictions permissible under Article 10(2)(a) of the Federal Constitution. [Article 10(2)(a) of the Federal Constitution: Security interests, friendly relations with other countries, public order or morality, and restrictions to protect the privileges of Parliament or Legislative Assembly or to provide against contempt of court, defamation or incitement to any offence.] Any refusal to disclose information must undergo a rigorous ‘harms test’, a weighing mechanism evaluating whether disclosure causes greater harm than the competing and non-exhaustive public interest benefit.
- Establish an autonomous oversight body or an ombudsman structured in line with the Venice Principles, reporting directly to Parliament annually on public authority compliance.
- Refusals must be appealable to an independent appeals tribunal governed by the rules of natural justice, with final recourse subject to appeal or judicial review before the High Court and subject to further appeals. All decisions must be published to contribute to the development of freedom of information jurisprudence.
- Public authorities must be legally mandated to proactively and progressively publish extensive information updates every three to six months on their websites. This must include, amongst others, non-exhaustive lists of past, ongoing and pending public projects.
- Ensure comprehensive protection for whistleblowers to foster an institutional culture of accountability. Concurrently, statutory sanctions must be imposed on public officers who deliberately destroy documents or serially obstruct information access, while any penalties for errant applicants remain preventive rather than punitively harsh.
- The oversight body must conduct annual compliance audits across all public authorities, submitting reports to be scrutinised by a parliamentary committee and debated in both Houses of Parliament.
A robust freedom of information act is long overdue in Malaysia. Greater transparency could have fundamentally altered the trajectories of past accountability crises, tragedies and disasters.
It will undoubtedly stand as our strongest systemic infrastructural improvement in governance and the prevention of corruption.
Having a freedom of information act is also a core requirement under goal 16 of the UN sustainable development goals, to which Malaysia is a signatory. [“The Right to Access to Information (UNESCO)” states that SDG Indicator 16.10.2 refers to the “number of countries that adopt and implement constitutional, statutory and/or policy guarantees for public access to information”.]
The Malaysian Bar urges the government to walk the talk, entrench the right to freedom of information, adopt the highest watermark of compliance and governance, and avoid a mere perfunctory political exercise that misses its mark. – Bar
Anand Raj is the president of the Malaysian Bar.
The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.
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