A critique of the Selangor FOI Bill

Freedom of Information must mean exactly that: information must be freely available. Regrettably, the Selangor FOI Bill leaves much to be desired, concludes Sarajun Hoda Abdul Hassan.

On 28 September 2010, Aliran was invited to provide feedback on Selangor’s proposed Freedom Of Information (FOI) Bill after the second reading. There are two reasons for commending the Selangor government:

1. For taking a bold step that the Barisan Nasional government, intent on hiding their rot, would never have dared.
2. For engaging civil society in the process without which, it cannot be a law for the people but exploitation like what the BN government does in Parliament and in negotiating FTAs with foreign states.

Many other NGOs were asked to provide their opinion and this was Aliran’s turn to present its views. As an Aliran exco member, I was there representing the group. The session was chaired by Saari Sungib, the Hulu Kelang Assembly member. He was flanked by state assembly members Amiruddin bin Shari (Batu Caves) and Dr Ahmad Yunus bin Hairi (Sijangkang).

Broad restrictions

I started by saying that, judging by the contents of the FOI Bill, the Selangor Government is not serious about freedom of information. From the onset, the Selangor government’s perception of the Freedom Of Information (State of Selangor) Enactment 2010 is inverted. Freedom Of Information must mean exactly that. It must be freely available.

The whole process of governance must be transparent. Presently, it is seriously myopic. Instead of information being made freely available (with few exceptions), the Enactment, looked at holistically, suggests exactly the opposite. Information is NOT freely available (with a few exceptions). Instead of limiting the restrictions, the Enactment limits the exposure of information that should be readily available to the people.

The very concept of FOI collapses at its initiation when the Selangor Government submits that ‘any person MAY be given access to information made by every department’[Section 5(1)]. The government is not serious. Information only may be given, not shall be given, a fact that Teng Chang Khim, the State Speaker, and much later Charles Santiago, the MP for Klang, admitted to me. This is not being proactive in disseminating information to the public.

Only information that is made available is available. How about information submitted by or derived from the public? Take for instance a tenderer for the supplies of stationery for the state government. Even if the potential supplier is unsuccessful, the information must still be available for public scrutiny. We don’t want pencils to be supplied at RM50, do we? So why should such information be out of bounds to the public? The government is not firm and serious in upholding the people’s right to information.

The flow of information is also tightly held back [Section 2] under the pretext that:
• it might violate the OSA,
• it could be a breach of confidence or trade secrets,
• it would be prejudicial to relations, to the effective formulation of state policy, to development and the economy or to security,
• it could risk frustrating state policy,
• it could undermine any department or the effectiveness of a test or audit.

All these restrictions are so broad, subjective and vague, it just doesn’t convince the people on the streets that the FOI will be any different than that presently practised by the Barisan Nasional to hide its rot.

It is clearly an opus of the ‘birds of the same feather’, working with pre-established mindsets and mentality, that has unambiguously failed to produce the spirit that many expect a Pakatan Rakyat government to live up to. The fact that the Bill has already gone for two readings says a lot about the Pakatan’s level of resourcefulness.

But most restrictive of all are these bits:

2.c.iii – any information if disclosed would or would likely cause serious prejudice to the administration of any department or the state government (this is too vague)
2( d) – any other documents which may be specified, from time to time, by the State Authority by notification in the Gazette.

These two sections alone sufficiently throw a blanket over all information and effectively, efficiently and effectually just close all doors to any sort of information at all material times.

Yet more deterrents are created. One needs to state the reason and purpose for the information applied. This in itself is against the concept of freedom of information and the right to that information.

More deterrents

There is also a fee imposed but not specified. Does this suggest that the state is selling the information? If the state’s worry is just the cost or retrieving that information, a RM1 fee should suffice. This is because their remuneration and the cost of materials and time is already paid for by the people’s money.

A response time of up to 30 days is provided [Section 7(1)]. In this information technology age, why do they need such a long time? In cases where life or liberty may be at stake, a response time of even seven days is still very long. Imagine a person arrested by the police, while trying to prove his innocence, is deprived of his freedom and then subject to confinement and possible torture or ill treatment for that long, just because the state apparatus is so inefficient?

The deterrents then turn fatal:

• If there is no response to the application, one is to consider such application rejected [7(3)];
• Access to the information may be refused [(8(1)];
• The Information Officer may at his discretion, arbitrarily decide that the applicant is not entitled to such information [8(1)a];
• If the information ‘does not exist’ or is ‘not in control of the department’ [8(1)b]. This section read together with Section 13(1) – Every department may refuse to indicate whether or not it holds an information or refuse to communicate information, where to do so would involve the disclosure of personal information of an individual third party.

These provisions successfully kill off the very spirit of freedom of information. The reasoning — disclosure of a third party — is too wobbly and subjective. Who is the Act protecting? The politician? Government officials? These provisions open up space to hide the rot, to shield a corrupt act or to protect the corrupt. They may be conveniently used to protect cronies and blue-eyed employees. In the Philippines FOI, the public interest overrides the interest of a person: the privacy rights of a person takes a back seat.

Crucial components missing

Under Section 12, every department is not required to comply with an application for information which is vexatious or unreasonable or if there is a similar application from the same person which has been complied with. This raises several questions: who decides what is vexatious or unreasonable? what is the standard definition? why must one be prevented from re-seeking the information? Maybe the person who wants the information the second time around believes there could be changes or new information. Anyway, if the information can be obtained once, why not twice? This section challenges the very spirit of FOI.

Under Section 14(2), the members of the appeal board are appointed by the state. This means firstly, they will not be independent and secondly, there is no independent member representing civil society.

Section 14(4) makes the situation more horrendous: ‘The state authority may revoke the appointment of a member of the Appeal board without assigning any reason therefore.’ Now, this is even worse than the situation faced by Suhakam commissioners who, in order to be fair and just to the people, may unfortunately invite the state’s displeasure – but they still get to complete their term. This section confirms that the members will not be independent at all: they will be controlled by the state, subject to its pressure and will have no choice but to either strictly toe the line or get kicked out.

The appeals board is not collegial and does not work on a simple majority. The Chairman shall not be bound to conform to the opinions of the other two members or either of them….[section 14(9)]…may make any order whether or not provided for by, and not inconsistent with, this enactment [14(10)f] and an order made by the appeal board before it shall be final, shall not be called into question in any court, and shall be binding on all parties to the appeal or involved in the matter [14(13)]. So, in effect, the Chairman can make any unilateral decision he wishes and cannot be challenged in any court.

The last nail to the coffin sends a chilling effect – the most intimidating and offensive provision of them all. Any person that uses any information obtained under this enactment contrary to the reason and purpose of such application made (Section 15(1)….commits an offence liable on conviction, to a fine not exceeding RM50,000 or to imprisonment not exceeding five years or both [Section 15(2)].

Looked at as a whole, the Selangor FOI Bill regrettably leaves much to be desired. It lacks two other very crucial components not mentioned above.

Firstly, there is no provision for proactive or automatic disclosure or publication of documents (as defined by the Evidence Act 1950) of high public interest or whose disclosure will promote democratic practices and good governance. A good example would be the list of suppliers and their prices for goods and services supplied to state government departments and the municipal councils.

The absence of a spirit of proactive and automatic disclosure of information only confirms the lackadaisical attitude of the Pakatan government in recognising that the community right to information must be strengthened.

Secondly, there is clearly no penalty for any restriction or denial of right to access to information. The state government and its departments have a million reasons not to dispense information and they are not punished for stemming or violating this public right.

Despite all these limitations, the Selangor government must still be congratulated for its daring and its effort to initiate and bring about a FOI law, which is something Malaysia desperately needs. The absence of such a law has allowed the ruling federal government to serve vested interests while hiding the rot and almost dictatorially ruling the people with an iron fist.

Something to hide?

More than 80 countries around the world are said to be putting in place FOI in their respective countries and have at least adopted access-to-information legislation. Even the Charter of Fundamental Rights of the European Union (Article 42) states “any citizen of the Union, and any natural or legal person residing or having its registered office in a member state, has the right of access to European parliament, Council and Commission documents”.

Unfortunately, the Malaysian government has failed to fully understand and appreciate the real democratic practices that comes along with FOI. Atrociously, it still allows the undermining of the fundamental principles of the Malaysian Constitution such as the freedom of expression, association, movement, assembly and religion as well as the right to have a free and fair trial.

Regretfully, it just doesn’t bother the federal government if the judiciary is not seen to be dispensing free and fair judgments, let alone dispensing information required for a fair and just trial.

By holding on to the draconian ISA, the Sedition Act 1948, the Printing Presses and Publication Act 1984 (PPPA), the Official Secrets Act 1972 (OSA), the Universities and University Colleges Act 1971 (UUCA) and the Police Act 1967, the government is acting dictatorially and ruling by intimidation.

In the eyes of the world, Malaysia is seen as a state that fails to uphold the protection of human rights and the assurance of public interest as enshrined and adequately safeguarded by the Federal Constitution. So it is time for the Federal Government to have a FOI Act of its own.

The government has obligations under international laws such as the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR). Its ratification of other international declarations is increasingly coming under world scrutiny.

It must be reminded that under the UDHR and the ICCPR, ‘Everyone shall have 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.’

Abid Hussein of India, who was for nine years Special Rapporteur to the UN on Freedom of Opinion and Expression, fittingly opines that “the right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its own”.

The government must constantly be reminded that they are a government of the people for the people. They govern on behalf of the people. Hence all the information belongs to the people. So, what exactly is the logic for hiding information from the public? Unless, of course, they have something to hide.

Sarajun Hoda is an Aliran executive committee member.

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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