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Background and recent history
Freedom of Information (FOI) legislation has been slow to take root in South East Asia. A number of civil society groups, including the Southeast Asian Press Alliance and Article 19, recently urged the Association of Southeast Asian Nations (ASEAN) to "demonstrate its commitment to public participation by promoting access to information within ASEAN and among its member states." [1] The notable exception is Thailand which, although not without problems, has had an Official Information Law since 1997. Indonesia passed an FOI Act in 2008, that came into force in May 2010, but commentators are critical about the extent to which it has actually been implemented.[2] In October 2011, a Singaporean MP called for an FOI Act to be introduced in the island republic.[3] Malaysia however, is the ASEAN nation which has seen the most significant FOI developments in the last two years.
Malaysia does not have freedom of information law at the federal level. The single biggest legislative barrier to this is the 1972 Official Secrets Act (OSA). OSA effectively outlaws the disclosure of any government information by government employees, and has created a climate where-in officials are afraid of sharing information with journalists due to the threat of prison sentences and large fines.[4] In the words of one commentator, the act "… contain provisions that lead one to conclude that rights and freedoms mean little when the power of government is challenged through concerted democratic means by certain segments of society."[5]
Included in OSA's list of materials banned from disclosure are: "Cabinet documents, records of decisions and deliberations including those of Cabinet committees; State Executive Council documents, records of decisions and deliberations including those of State Executive Council committees."[6] Transparency campaigners and critics of the Act have pointed out that it is extremely difficult to justify how all of these documents can be considered confidential or secret.[7] The Official Secrets Act has "clipped investigative reporting on excesses of government. Since no excess of government could be reported without invoking s.4 of the OSA, the executive has in fact a very safe haven under the OSA as any information within government could be labelled as 'secret' under the Act. Once a document or information is designated as 'secret' by the Minister under his hand, whoever deals with it does so at the peril of being prosecuted."[8]
Malaysian civil society groups, including the Centre for Independent Journalism (CIJ), have called on Prime Minister Najib Razak to introduce FOI legislation at the federal level to replace the Official Secrets Act.[9] There are no indications that this is about to happen however. As long as OSA exists in its present form, there is little prospect for FOI legislation on the national stage.
At the state level, the prospects are somewhat better. In Malaysia, FOI seems to be evolving along party lines. To date, out of Malaysia's 16 states and federal territories, the only two states to pass FOI Bills have been those governed by the federal opposition coalition, Pakatan Rakyat (PR).
Selangor legislation
On 1 April 2011, the Freedom of Information Enactment was passed in Selangor's state assembly. The bill was first tabled early in 2010, and has been considerably revised since then, and is likely to continue to evolve. PR Executive Counsellor Elizabeth Wong, who introduced the legislation, describes it as "dynamic" in this respect.[10] Crucially within the bill, freedom of information is now described as a right, where as previous drafts of the bill phrased it as an "opportunity". Other significant features of the revised Selangor enactment include:
- An obligation to reveal information
- The possibility of review by the courts
- A more independent State Information Board (to replace the Appeals Board)
- A narrower list of exemptions, with a public interest override
- Protection from prosecution or sanction for Information Officers or government officers who disclose information in good faith.[11]
Critics point out that there is still no requirement for the state to proactively disclose information, nor is there clear guidance on the circumstances where requesters may be charged a fee, it is left to the discretion of the state/the information officer.
The degree to which the law is successfully implemented remains to be seen. Of concern would be the apparent partisan nature of the law-making for this piece of legislation, which appears to have been boycotted by the party of the ruling federal government, Barisan National (BN). BN members of Selangor Assembly who sat on the select committee to draft the enactment skipped all of the meetings.[12]
Recent legislation
The Penang State Assembly became the second Malaysian state legislature to pass an FOI Bill on 4 November 2011.[13] Like Selangor, the Penang Assembly is governed by the Pakatan Rakyat. The structure and criticisms of the Bill are virtually identical to that of Selangor; The notable exception is the removal of Section 14 from the latest version of the bill, dealing with offences and penalty if the Information Officer intentionally restricts or denies access to information requests. This clause was designed to prevent an "abuse of power" by the information officer and its removal has significantly weakened the enactment.[14]
Out of the four states governed by the Pakatan Rakyat (or 'People's Alliance'), two remain without any form of FOI law. The state of Kelantan has had a draft 'Right to information' bill for a number of years, but nothing has been passed into law to-date.[15] There is as yet little detectable movement on the issue in the other PR state of Kedah.
While this opposition-led, grassroots approach to implementing FOI legislation is a significant step for Malaysian democracy, it appears at this stage to be mostly symbolic. The effective implementation of this legislation on the state level, as well as on the national level, is ultimately dependent on winning the support of the ruling Barisan National party and the revision of the Official Secrets Act.
References
[1]Freedominfo.org http://www.freedominfo.org/2011/09/groups-urge-asean-to-adopt-transparency-policy/ [accessed 29 February 2012]
[2]Freedominfo.org http://www.freedominfo.org/2011/02/implementation-of-foi-law-found-lacking-in-indonesia/ [accessed 29 February 2012]
[3]AsiaOne News http://news.asiaone.com/News/AsiaOne%2BNews/Singapore/Story/A1Story20111... [accessed 29 February 2012]
[4] Freedom House, Freedom of the Press 2011 - Malaysia, 3 October 2011, available at: http://www.unhcr.org/refworld/docid/4e89adc427.html [accessed 6 March 2012]
[5] Yatim, R. (1995) Freedom Under Executive Power in Malaysia, p.369. Kuala Lumpur: Endowment Sdn. Bhd.
[6] Malaysia Official Secrets Act 1972 http://www.agc.gov.my/Akta/Vol.%202/Act%2088.pdf p.27
[7] Wu, Min Aun & Hickling, R. H. (2003). Hickling's Malaysian Public Law, pp. 91-92. Petaling Jaya: Pearson Malaysia
[8] Yatim, R. (1995) Freedom Under Executive Power in Malaysia, p.393. Kuala Lumpur: Endowment Sdn. Bhd.
[9] Centre for Independent Journalism http://cijmalaysia.org/2011/09/28/pm-must-introduce-right-to-information... [accessed 29 February 2012]
[10] The Star, "S'gor assembly passes Freedom of Information Act", http://thestar.com.my/news/story.asp?sec=nation&file=/2011/4/1/nation/20110401113453 [accessed 6 March 2012]
[11] Centre for Independent Journalism http://cijmalaysia.org/2011/04/01/selangor-foi-enactment-a-breakthrough-amid-ingrained-culture-of-secrecy/ [accessed 28 February 2012]
[12] The Star, "S'gor assembly passes Freedom of Information Act", http://thestar.com.my/news/story.asp?file=/2011/4/1/nation/20110401113453&sec=nation [accessed 6 March 2012]
[13] The Star, "Penang passes Freedom of Information Bill", http://thestar.com.my/news/story.asp?file=/2011/11/4/nation/20111104200415&sec=nation [accessed 6 March 2012]
[14] Freedominfo.org http://www.freedominfo.org/2011/11/second-malaysian-state-approves-foi-legislation/ [accessed 6 March 2012]
[15] Malaysiakini http://malaysiakini.me/news/63883 [accessed 6 March 2012]
