Sabah lawyers say time for Malaysia to have Freedom of Information Act, slam problematic Official Secrets Act

Malay Mail
Malay Mail

KUALA LUMPUR, Jan 13 — It is time for Malaysia to introduce a Freedom of Information (FOI) Act to improve the public's access of information and to help discourage corruption, the Sabah Law Society said today.

Its president Roger Chin noted that Selangor and Penang has state laws for FOI, but Malaysia has yet to introduce any FOI laws in Parliament.

"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 in a speech at the Opening of the Legal Year 2023 of the High Court in Sabah and Sarawak which was held in Miri, Sarawak

The speech was made available to Malay Mail.

He said FOI is a right given to the public to request information from the government, and also covers government agencies' obligation to routinely publish information.

Chin listed the benefits of having a FOI Act in Malaysia, including encouraging openness and transparency in the government, as only the public's oversight can curtail secrecy in government affairs.

"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.

He also said having an FOI Act would be a deterrent of corruption and vices of power, as corrupt behaviour often occurs behind closed doors and can fly under the radar without public scrutiny.

While official secrecy would only be a "minor nuisance" to citizens under normal conditions where there is honest compliance of rules and procedures, Chin indicated such secrecy could turn into government actions in bad faith when there is widespread secrecy.

"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 noted that a FOI Act can also compel public officials to carry out their functions and exercise their discretion within the limits set under the law, as such discretionary power would be "prone to abuse" if the criteria — for how the discretion is applied — is not disclosed to the public.

As a whole, he said access to information would help the public hold public authorities accountable for their actions, and encourage better informed and more productive debates, while also helping in public interest litigation or court cases.

"Access to official information can also improve public confidence and trust if government and public sector bodies are seen as being open," he said.

Chin pointed out that Malaysia, however, currently has the Official Secrets Act (OSA) 1972, which generally disallows the disclosure of any classified information for any purpose — however noble the intention is — unless it is declassified by the proper authority.

Chin noted that the OSA was initially introduced to fight any attempt by civil servants to carry out spying, but said this law was amended in 1986 to widen its scope to criminalise all types of communication of official secrets.

He said the OSA in Malaysia has "glaring" departures from the original spirit of the UK law it was modelled after, pointing out that the UK version requires the prosecution to prove certain ingredients for the offence of unauthorised disclosure while the Malaysian version applies indiscriminately to anyone involved in the chain of communication of classified information.

He noted that the OSA "covers all types of disclosure of any classified document, no matter how trivial or unrelated it is with national security, defence or crime prevention", and also creates a "strict liability offence" under Section 8 where the intention of the accused person is irrelevant.

He noted that the OSA's Section 16(3) also presumes that unlawful communication of classified information was done for purposes prejudicial to national interest unless proven otherwise, saying this is not in line with criminal justice as the prosecution should have the burden to prove the communication is damaging to the national interest.

He said the OSA's Section 16A states that a certificate from a minister or public officer in charge which certifies certain information as official secret will be conclusive evidence — that the information is an official secret — and that this shall not be questioned in any court.

Stopping the courts from reviewing such certificates may lead to "arbitrary" use of Section 16A due to the lack of checks and balances, he said, noting in comparison that such a ministerial certificate in the UK is subject to judicial review by the courts.

Among other things, Chin said public interest litigation — which can include challenges to the constitutionality and courts' review of administrative actions — can help promote good governance.

With some judges taking a strict and narrow approach and other judges a more liberal and less rigid approach in deciding whether one has legal standing to bring a public interest case to court, Chin said the rules on locus standi or legal standing should be relaxed to allow public interest cases to be filed on behalf of others.

"Public interest litigation plays a critical role to maintain the rule of law and enhance access to justice for disadvantaged groups under public law.

"Consequently, the court should relax further the rules on locus standi in public law to permit any public or interested party acting bona fide with a view to vindicating the cause of justice to make application on behalf of others or a particular class of people, if that other person or class of people cannot come to court to get relief for some reason," he said, noting there would be a gap in public law if public interest litigation is prevented by limited rules of legal standing.