Information freedom, the fourth and fifth estates: Hail the media and whistleblowers

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Embrace the 21st century by empowering our citizens, our media and whistleblowers so that they can serve as checks and balances on the government, says Anas Alam Faizli.

Back in 2009, Najib Razak launched the New Economic Model (NEM), intended to spur the shift of a government-led economy to the private sector. He proclaimed that “the era where the government knows best is over.”

Subsequently, in a 2014 interview at Umno’s 68th anniversary, he reiterated, “And, with all sense of humility, we consider ourselves not as know-alls. I have said that the era of the government knows best is over.”

What the prime minister said is perfectly accurate and must be applauded. While the context might have been with regard to giving the lead to the private sector or receiving criticism from the general public, his statement will be meaningful only if public participation is included in the government’s operations and policies.

This can only be achieved if the public is given access to government documents – in order to pave the way or provide constructive criticism. There are two ways to do this effectively: firstly, the periodical release of data for the general public to consume, analyse, and scrutinise; and secondly, the granting of rights for the public to request government documents and information.

Entering into a new era where the public is empowered to know best, several reforms are inevitable.

First, Malaysians must be accorded the right to freedom of information.

Secondly, the rights to expression and speech.

Thirdly, we need to strengthen the principle of the separation of powers, currently with the three estates, as enshrined under Article 127 of the Federal Constitution – executive, legislature and judiciary. The media to be liberated as a watchdog known as the fourth estate and the whistleblowers exposing inside corruption as the fifth estate.

Freedom of information

In Malaysia, we are not constitutionally guaranteed the freedom of information, nor is there any Act that legally provides this basic human right; except in the state of Selangor through the Freedom of Information Enactment (Selangor) Act 2010 and Penang through the Freedom of Information Act 2011. These Acts allow the public to access state documents except information classified under the Federal’s Official Secrets Act (OSA).

Article 19 of the Universal Declaration of Human Rights, which Malaysia has ratified states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.” The same right must be provided to all Malaysian citizens.

By providing information, the public can participate and ensure that the government is doing its best. The availability/accessibility of information on government activities and operations will significantly reduce opportunities for corruption and the abuse of power. The transparency would hold public servants and the executive accountable. Furthermore, this would increase public confidence in the government.

More than 95 countries around the world including China, India, Zimbabwe, and Thailand have implemented some form of such legislation in this regard, and other countries are working towards introducing such laws.

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In the United Kingdom, the Freedom of Information Act 2000 introduces the right to know and request any information from government bodies, with few exceptions.

Surprisingly, China too in 2007 declared the Open Government Information regulation, which laid frameworks for freedom of information within its sovereignty.

Closer to home, Thailand’s The Official Information Act of 1997 grants citizens the right to access public information – which applies to all government offices and agencies.

Indonesia in 2010 adopted the Freedom of Public Information Act.

These legislative efforts by various nations have reportedly brought to light a multitude of corruption scandals.

Freedom of expression and the fourth estate (media)

In Malaysia, every citizen is guaranteed the right to freedom of speech, freedom of assembly and freedom of association by Article 10 of the Federal Constitution.

There are, however, concerns that highly discretionary laws like the Sedition Act 1948, the Peaceful Assembly Act 2012, the Security Offences (Special Measures) Act (Sosma) 2012, and now the newly introduced Prevention of Terrorism Act (Pota) 2015 are restricting or conflicting with the above constitutional rights.

In our current state, can our media be recognised as the fourth estate? Let us take a look at the current state of affairs in the Malaysian media; according to a report by Reporters Without Borders on its World Press Freedom Index, Malaysia ranks at number 146 out of a total of 180 countries. Let’s visit prominently featured Acts that regulate the media and whistleblowers.

Printing Presses and Publications Act 1984 (PPPA) Amendment 1987

This Act is the governing act for the control of printing, importation, production, reproduction, publication and distribution of publications in Malaysia. It grants the power to control all licences for printing presses on yearly renewal by the home affairs minister. In short, it is a criminal offence to possess or use a printing press without a valid licence granted by the ministry.

Proponents defend this law on the basis that it is used to ensure news is genuine, to regulate the printing presses, and to ensure there that are proper legal guidelines governing reporters.

Opponents, on the other hand, argue that the Act is an attack on freedom of speech and is actually used to restrict political discourse, silence political opponents, and indirectly ensure that news delivered to the public conveniently falls within the government’s appetite.

Additionally, an amendment in 1987 provided a clause that the court cannot question actions by the home affairs minister and in section 7(1) of the Act, the home affairs minister has the power to ban the publication of any book. This intensifies the argument that the Act is indeed a means to provide the government with total power and control over printing presses.

The call and demand of the day are for the Act to be repealed, and that newspapers should be free to publish without a licence. There are enough civil protections and laws in place such as the Communications and Multimedia Act 1998 and the Defamation Act 1957 which can be used to regulate newspapers that publish false news.

There are two types of defamation in Malaysia: libel and slander which can be used either by the government or an individual. But the Defamation Act must ensure that no public officials can benefit from special protection under the law and no government agencies should be able to bring defamation suits.

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Official Secrets Act 1972 (OSA) Amendment 1986

This Act provides the government the capacity to render any documents a state ‘secret’ if they are deemed to threaten national interest. Conceivably, national security documents that are of military nature, sensitive diplomatic relationships, and intelligence-related should reasonably be classified as ‘Secret’.

But the amendment in 1986 has given unlimited power to all ministers to classify any document under the sky as confidential. Any leak can be treated as a criminal offence, and perpetrators can be deemed as enemies of the state with a mandatory jail term.

On top of these two Acts, there is also the Broadcasting Act 1988, which allows the information minister to decide who can own broadcasting stations, naturally allowing the industry to be monopolised by a few key players subsequently stunting the media’s independence.

Crackdowns and Gerakan Media Marah (Geramm)

Throughout the years, there have been various crackdowns on media and publishing activities including arrests, threats of licence suspension for the media, and the banning of books.

Geramm, a loose coalition of journalists, media representatives, and activists, was founded on 20 December 2013 as a reaction to the government’s decision to suspend the license of a weekly magazine called The Heat. This move is widely seen as an obstruction to media freedom.

Subsequently, The Edge Weekly and The Edge Financial Daily was also suspended for three months for a report on the 1Malaysia Development Berhad (1MDB) scandal.

In essence, Geramm, the Institute of Journalists Malaysia, the Centre For Independent Journalism and other civil society organisations are fighting for freedom of the press, the abolishment of publishing permits, and the abolishment of the Printing Presses and Publications Act, and to uphold the spirit of freedom, fairness, and human rights for the media.

The fifth estate: Whistleblowers

There must be a level of confidentiality in the government’s dealings especially when sensitive matters are involved.

But there is a grey area between secrecy and transparency. In scenarios where mediums and means to make government or organisations accountable are lacking, whistleblowers are the perfect alternative source that can bring to light useful and relevant information.

For whistleblowers to come forward, there must be a strong form of protection to allow them to be able to report any misconduct, in turn allowing for a more accountable government. Protect a (wo)man and (s)he will tell you everything.

The existing Whistleblower’s Protection Act 2010 (WPA) does not provide adequate protection. The protection lapses if the whistleblower communicates to any party other than a government agency, and this protection can be revoked if the enforcement agency is of the opinion that the report “principally involves questioning the merits of government policy, including public body”.

Quite a dead end. In essence, if you disclose information instead of reporting a crime, you are technically a whistleblower but will bear the risk of committing a crime should the authorities not be in your favour. If you report it, you are not a whistleblower and are committing a crime.

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Magna est veritas prae velabit – the truth is mighty and will always prevail

In early April 2016, the International Consortium of Journalists leaked 2.6 terabytes of data from the Mossack Fonseca law firm in Panama and linked 140 world leaders to secret offshore accounts in 21 different tax havens.

As a result of the leak and the subsequent backlash from the public, Iceland’s Prime Minister, Sigmundur Davíð Gunnlaugsson and Spain’s acting Industry Minister, Jose Manuel Soria resigned from office. They had both been linked to offshore companies. Many senior figures in government positions worldwide have subsequently been investigated and questioned.

There have been many other instances around the world where the fourth and the fifth estates play a pivotal role in bringing the corrupt to justice such as the Watergate Scandal, the Pentagon Papers, and WikiLeaks. Where government is allowed to operate in secret, abuse and corruption will breed and prosper without fear. The truth will make you mad, miserable but in the end, set you free.

Road to good governance, accountability

The time has come for the federal government to adopt a Freedom of Information Act.

A Whistleblowers’ Protection Act that encompasses more than just the government and its agencies must be empowered to protect those who disclose information so as to expose malpractice and matters of similar concern.

The Official Secrets Act should be restricted for use on materials that are in connection with and/ or gravely endangers our national security, defence, and foreign relations. A bi-partisan select committee must be set up in Parliament to review the sensitivity of these documents.

Critically, if there is public interest in disclosure, there must be a provision that allows for the document’s classified status to be challenged. A time limit must also be imposed reasonably on OSA documents which will be declassified upon expiry.

The Sedition Act 1948 inherited from the former colonial British government must be repealed to allow for greater freedom of expression and reasonable, constructive critique of our national policy.

The Printing Presses and Publications Act should only require media outlets to register with the Ministry of Information without printing licences and annual publishing permit requirements.

The Swedish government granted its citizens freedom of information rights as early as 1766. We need to catch-up our missed train of 250 years. Embrace the 21st century by empowering our citizens, our media and whistleblowers with the basic human rights to freedom of information, speech, and expression so that they can serve as checks and balances on the government.

We are presently fighting corruption only on the surface, fighting intermittent fire without any ray of light at the end of the tunnel. Implementing the above proposals can rein in even the most repressive and corrupt of regimes; extinguishing corruption directly at its source.

A version of this article first appeared on Astro Awani.

Anas Alam Faizli holds a doctorate in Business Administration. He is a construction and an oil and gas professional, concerned Malaysian and author of Rich Malaysia, Poor Malaysians and tweets at @aafaizli‎

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