Scandals, so Freedom of Info Act must: Sabah Law Society
Published on: Monday, August 15, 2022
He said the OSA was modelled after the English legislation and was first introduced to combat any attempt by civil servants to indulge in spying and espionage.
Kota Kinabalu: The Sabah Law Society called for a Freedom of Information Act to be enacted.Its President Roger Chin said events in Malaysia in the past few months revealed the need for a Freedom of Information Act.
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He was apparently referring to a succession of scandals gripping the nation that involved several billion ringgit in losses such as 1MDB and the ongoing Littoral Combat Ship purchase.
“Access to information helps the public make public authorities accountable for their actions and allows public debate to be better informed and more productive.
“Access to official information can also improve public confidence and trust if government and public sector bodies are seen as being open,” he said Sunday.
Roger said FOI is fundamentally a right given to the people to request information from the government.
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It also encompasses the obligation of government agencies to publish information on a routine basis. International and regional legal instruments recognise FOI as a fundamental right in a democratic society.
“In Malaysia, despite having FOI enactments in Selangor and Penang, the Federal legislature has yet to attempt bringing FOI motion to be tabled before the Parliament.
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“At the Federal level, no specific statute on FOI has been passed so far. The current framework of the information system is tightly regulated by the Official Secrets Act 1972 (OSA).
“This statute generally exempts all classified information from disclosure for any purpose (however noble the intention is) unless the proper authority declassifies the said information,” he said.
He said the OSA was modelled after the English legislation and was first introduced to combat any attempt by civil servants to indulge in spying and espionage.
“However, the amendment to the OSA in 1986 widens the statute’s scope in criminalising all types of communication of official secrets.
“The departure of the Malaysian OSA from the original spirit of the English legislation is glaring. In the UK, the offence of unauthorised disclosure under Section 2 requires the prosecution to prove the certain ingredients.
“In contrast, the Malaysian OSA applies indiscriminately to anyone who is involved along the chain of communication of classified information,” said Roger.
He said the Malaysian OSA does not consider the damaging implication of the disclosure to attract criminal liability under the Act.
“The Act covers all types of disclosure of any classified document, no matter how trivial or unrelated it is with national security, defence or crime prevention.
“Furthermore, Section 8 of the Malaysian OSA creates a strict liability offence; hence the malicious intent of the accused is immaterial.
“In addition to that, Section 16 (3) of the Malaysian OSA makes a statutory presumption that unless otherwise proved, it shall be presumed that unlawful communication of classified information is made for the purpose prejudicial to the national interest. This is not consonant with the general notion of criminal justice, which imposes the prosecution the burden to prove that the communication is damaging to the national interest,” he said.
The Malaysian OSA also contains Executive intervention in the form of a certificate under Section 16A.
Roger said this section provides that a certification by a Minister or public officer in charge certifying certain information as official secret shall be conclusive evidence of that fact and shall not be questioned in any court.
“The bar of judicial review by Section 16A may lead to the arbitrary use of the provision hence due to the absence of any check and balance mechanism on the Executive discretion.”
“On the contrary, in the UK, a Ministerial certificate is subject to judicial review,” he said.
Roger said an FOI would foster openness and transparency in the Government and enable the public to develop a clearer image of what is happening inside the Government.
“Transparency and openness only strengthen accountability and enhance the credibility of the political and economic system.
“If poor performance, inefficacy, dishonesty and duplicity are readily exposed and rooted out by public oversight, this will rekindle the faith in the government.
“Besides, it also improves the public sector’s professionalism and the capacity of the officers to develop, analyse, articulate and implement policies that stand up to public scrutiny,” he said.
Additionally, Roger said the FOI is also a deterrent of corruption vices of power.
“Under normal conditions where rules and procedures are honestly complied with, official secrecy will be a minor nuisance to the citizens.
“However, when the system ceases to follow norms to the extent that every official file is marked as ‘confidential’ and ‘top secret’, this secrecy becomes the cloak for irregular, unauthorised or male fide acts of the government.
“FOI legislation would expose corruption in the government. Making government information and practices open to public inspection should give everyone equal access to government spending, procedures and contracts,” he said.
He added that FOI would also compel public officials to discharge their functions and apply their discretion within the legal limits conferred by the law, which would promote executive accountability.
“In the discharge of general duties, the exercise of discretion is an integral part of the legal system. Nonetheless, when the criterion to apply this discretion is unknown to the public, discretionary power is prone to abuse,” he said.
“Some sixty years after the founding of Malaysia and as Malaysia enters into the last third of her first century, the time has come for this nation of ours to install navigational aids such as a FOI Act to warn of dangerous areas ahead and ensure Malaysia’s future as a democratic jurisdiction,” he said.
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