Home 2009: 6 People’s right to information

People’s right to information

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Malaysia is still lagging behind in the introduction of essential laws to uphold the people’s right to information, points out Hamid Ibrahim.


Parliamentary Opposition Leader Lim Kit Siang said in a media statement on 4 May 2005:

“There seems to be more and more instances of decreasing government respect for the right to information in Malaysia, with the cult of secrecy triumphing over the culture of openness and accountability, as illustrated by the following cases:

1.    The failure and delay to release in toto, without censorship, the complete 433-page Police Royal Commission of Inquiry report to restore public confidence in the efficiency, professionalism and integrity of the police force.

2.    I asked a Suhakam Commissioner why the Suhakam 2004 Report has not been tabled in the April meeting of Parliament as required by statute. He was taken aback that the 2004 Suhakam Report had not been tabled in Parliament as it had already been submitted to the relevant authorities. Is someone withholding the Suhakam Report 2004 from the April meeting of Parliament? …

Justice V.R. Krishna Iyer, the former Supreme Court Judge of India, wrote in his book Freedom of Information  (1990) (pages 90-92) regarding evidence provisions as follows:

“ ‘State Privileges’ – important issues under the Evidence Act 1950

Sections 123 and 124 of the Evidence Act protect the State from disclosure documents and communication which are considered to be privileged.

Under Section 123, no one is permitted to give evidence derived from,

(1)    unpublished official records,
(2)    relating to “Affairs of State”
(3)    Except with the permission of the Departmental head,
(4)    Who may either … or withhold the permission.

Under Section 124, no public officer can be compelled to disclose

(1)    made to him in official confidence,
(2)    if he considers that public interest would suffer by such disclosure.

Section 162 of the Evidence Act deals with the powers of the court regarding admissibility of documents.  It states that the court, if it thinks fit, may:

(1)    inspect any document, unless it refers to matters of State, or
(2)    take other evidence to enable it to determine its admissibility.

Note:  (The Evidence Act 1950 is a colonial-era legislation passed in India in 1872 which
the then Malaya and later Malaysia adopted. The Act is more than 130 years old and there
have been in democratic countries, a considerable amount of amendments/improvements, in particular the United Kingdom.)

The parameters of Sections 123, 124 and 162 have been laid down in Judges’ Transfer case (1981) Supp SCC 87).   

In the Judges’ Transfer case, which involved the question of whether the correspondence between the Chief Justice of India and the Union Law Minister ought to be disclosed, a fundamental change in the conception of the right of disclosure of information took place.

Affairs of state

Firstly, it was decided that the right to disclosure is not a private interest but a public interest. Secondly, whether or not the disclosure of documents relating to “Affairs of State” would injure public interest could be decided by the court. Thirdly, the court also decided that documents relating to the “Affairs of State” could be ordered to be disclosed even though they would cause injury to public interest, if the court came to the conclusion that the competing public interest of disclosure was superior in the facts and circumstances of the case.

The propositions of law that have been laid down by the Judges’ Transfer case (1981) Supp.SCC 87 can be summed up in the following manner:

(1)    Disclosures of documents relating to “Affairs of State” involve two competing public interest viz., the right to disclosure of information, competing with the right to protect information relating to “Affairs of State”.

(2) The court can decide not only whether the document relates to “Affairs of State” but also whether or not disclosure of document relating to “Affairs of State” would be injurious to public interest.

(3)    Certain types of documents would be protected, those, for example, which:

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    a.    endanger national safety, or
    b.    endanger diplomatic relations with other countries, or
    c.    result in disclosure of state secrets.

(4)    Whether or not other documents relating to “Affairs of State” and which may result in injury of public interest ought to be disclosed would depend on the balance of the two competing public interests, the right to protect disclosure of documents relating to “Affairs of State” and the right to freedom of information.

In Sukhdev Singh case, State of Punjab v Sukhdev Singh AIR 1961 SC 493.  the following propositions of law were laid down by the Supreme Court of India:

(1)    Disclosure of information relating to privileged documents was a private interest whereas the protection of such information was a public interest.
(2)    The courts could decide whether the documents related to “Affairs of  State”.

(3)    Such documents relating to “Affairs of State” could either be noxious  (causing public injury) or not noxious (not causing public injury).
(4)    The courts could not decide whether documents relating to “Affairs of  State” were noxious or not noxious. This could be decided only by  the Departmental Head.

In Conway v Rimmer & Anor 1 All ER 874 (HL1968) Lord Reid delivering the majority judgment said:

“In my judgment, the appeal should be allowed and these documents ought now required to be produced for inspection.  If it is then found that disclosure  would not in your Lordships’ view be prejudicial to the public interest, or that any possibility of such prejudice is, in the case of each of the documents, insufficient to justify its being withheld, then disclosure should be ordered.”    

This leading House of Lord’s case on State Privileges Conway v Rimmer & Anor  was dealt  in sufficient detail in the Law of Evidence by Hamid Ibrahim & Maimoonah Hamid, published by the Central Law Book Co. Kuala Lumpur 1993; at pages 468-483.

In the words of Lord Acton:

“Everything secret degenerates, even the administration of justice; nothing is safe that does not show it can bear discussion and publicity.”

“…secrecy and public justice are incompatibles save in very special situations. The right to information extends not merely to court hearings, strictly so called, but to all proceedings of the same genus and genius like those of administrative tribunals and public enquiry commissions…” V.R.K at page 102.

Rights of NGOs

Despite the ruling in the Judges’ Transfer case, there are a few precedents of  documents being obtained without action on any other rights. In the Save Pune Citizen Committee case (1986), the Bombay High Court held that citizens’ groups had a right to obtain information to enforce public interest.

Freedom of information

It is now time that concerned groups agitate for a law to be enacted for full freedom of information.”  Source:  Justice V.R.Krishna Iyer Freedom of  Information (1990) on pages 90-92

“Secrecy is a statutory legacy of the British for Indians the subjects …Suffice it to say, secrecy, conspiracy to conceal, plea of privilege, institutional and individual, and immunity claimed against free criticism are all symptoms of the colonial syndrome of State safety through official secrecy.”

Freedom of information vs Evidence Act

Freedom and free flow of information must be fostered with caution so that, in the process, we do not suffer more than we gain. Even so, the international community has a global goal vis-à-vis the human right to know-a principle proclaimed in many international instruments and must animate the nascent legislative experiment India hopes to make. A quick glimpse of this series of instruments is gained from a footnote in the MacBride report: Many Voices –One World:

Freedom of Information is so fundamental and communication of knowledge so critical that one cannot more than agree with the Director-General of Unesco, Mr. Amadou Mahtar M’Bow in his concluding thought. In the Foreword to the  MacBride Report 1980:

MacBride rightly argues:

“If individuals are to play their part as responsible citizens in the community at the local, national and even international level, they must be adequately informed, possessing sufficient facts on which to base rational judgments and select courses of action. A full understanding of the events and issues which affect individuals can be attained only by the simultaneous supply of a variety, even controversial if necessary, of background data, information and facts”

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The broad thrust of information and communication is taking the message to the masses, lobbying with the target group, the victims of deception and ignorance. Says the McBride Report:

“Mass communication is by definition directed at large groups of people, but it is their reaction as individuals and as amorphous or organised groups, as well as in communities and environment, which determines then impetus, focus, content and impact of the established communication policies and practices. Again, the development of such a reaction is vital for the democratisation of communication and to increased participation in and access to societies’ myriad communication activities. This is an issue; it seems to us, which often fails to receive the attention it deserves.”

Official Secrets Act 1923, UK

Winston Churchill said that :

“The Official Secrets Act (1923) was devised to protect the national defences and ought not to be used… to shield Ministers who have strong personal interest in concealing the truth….”

The philosophy of the freedom of information geared to a dynamic democracy is expressed by Prof. Harold J. Laski in his A Grammar of Politics thus:

“A people without reliable news is, sooner or later, a people without the basis of freedom.”

Franks Committee in Britain

In Britain, the Frank Committee was appointed in 1977 following the historic judgment in the Biafran Secrets case. Calling for a wider diffusion of information, the Committee said:

“A totalitarian government finds it easy to maintain secrecy. It does not come into the open until it chooses to declare its settled intentions and demand support for them. A democratic government, however, though it must compete with these other types of organisations, has a task which is complicated by its obligations to the people. It needs the trust of the government.

A government which pursues secret aims, or which operates in greater secrecy than the effective conduct of its proper function requires, or which turns information services into propaganda agencies, will lose the trust of the people. It will be countered by ill-informed and destructive criticism. Its critics will try to break down all barriers erected to preserve secrecy, and they will disclose all that they can, by whatever means, discover. As a result, matters will be revealed when they ought to remain secret in the interest of the nation”
-The Hindu,  November 14, 1989.

The best diction on the case for democracy was by Sir Winston Churchill in the House of Commons on 11 Nov 1947 thus:

“Many forms of government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time.

Thus freedom of information is only a means, not an end. It begins where human interests ask for it and end. It begins where human interests ask for it and ends where the worth of the person is likely to be the victim.  Espionage, bugging, wire-tapping and infiltration into Opposition camps thro’ trickery are not part of the public right to access to information.”

Vision on freedom of information

From the point of view of historical materialism, the determining element in the making of history is man:

“Men make their own history, whatever its outcome may be, in that each person follows his own consciously desired end; and it is precisely the resultant of these many wills operating in different directions and of their manifold effect upon the outer world that constitutes history.”
– Frederick  Engels

Informational imperialism

Pandit Nehru, the first Prime Minister of India, in an article in March 1929 wrote:

“It is dangerous power in the hands of a government; the right to determine what shall be read and what shall not. And it almost always fails to achieve its object. Those who wish to do so can usually get hold of the prescribed book. In India, the power is likely to be misused and has been misused a hundred times. We have to be careful therefore lest one right use of the power is held to justify its misuse on scores of occasions.”

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Truth, in the largest democracy, going by electoral list, statutory secrecy is enthroned, what with the Indian Official Secrets Act, 1923 of imperial vintage, and Commissions of Enquiry Act, 1952, etc. all of, and a host of other provisions scattered in the books, all to exclude evidence and none to inform.

Indeed, the philosophy of information freedom and open government is best spelt out in the premise of the US House Committee on Government Operations, which approved the Freedom of Information Act, in 1966:

“A democratic society requires an informed, intelligent electorate, and then intelligence of the electorate varies as the quantity and quality of its information varies. A danger signal to our democratic society in the United States is the fact that such a truism needs repeating….” “

Most of the Commonwealth countries have enacted on Freedom of Information.

1. USA, 2  United Kingdom 3 Australia, 4  Canada, 5  India and 5 Nigeria and so on. Malaysia is still lagging behind in the introduction of the most needed law on right to information

India’s Right to Information Act, 2005
(Act 22 of 2005) – The preamble reads:

“An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto. “

Lingam video clip

Five years ago, Abdullah Badawi, the then premier, promised to transform Malaysia from a “first-world infrastructure, third-world mentality” nation to one with “first-world infrastructure, first-world mentality” under his premiership.

SHAH ALAM: Tun Dr Mahathir Mohamad has alleged that the Lingam video recording was exposed in order to undermine the lawyer who is representing the former prime minister in a defamation suit. He said his former deputy Datuk Seri Anwar Ibrahim “purposely got this tape and exposed it because he wanted to undermine Lingam’s credibility, and he happens to be my lawyer”.  

Datuk V.K. Lingam is defending Mahathir in a RM100 million defamation suit brought by Anwar. “Although there is no direct connection with me  it is suggested that the prime minister is biased and things like that.  “This kind of thing will keep going on.

The former prime minister was called as a witness during the commission’s hearings.  Mahathir said: “If I’m found guilty, I’ll go to jail if I have to. If I go bankrupt, then I’ll go bankrupt. It’s all right,” he said. (New Straits Times)

Among others, the Haidar Commission recommended that the AG should proceed with action as recommended without further delay.  

But people do not know what action the AG has taken. It was reported in the press that taxpayers’ money of nearly RM1 million was spent on the Commission.  People are waiting for the AG’s action on the Lingam Tape.

Prof. Hamid Ibrahim is Director of the Denning’s Research Centre, Malaysia

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