The Pakatan Rakyat government of Selangor, Malaysia created history earlier this month by tabling the nation's first piece of Right to Information legislation in the State Assembly. But the bill has its flaws.
The Selangor Freedom of Information Enactment, introduced by Executive Counselor Elizabeth Wong, aims to "enhance disclosure of information for the public interest" by "providing every individual with an opportunity to access information made by every department of the State Government," and lays out guidelines to create the infrastructure required to disseminate this information.
It is the first step in a broader campaign to evolve the nation's information culture away from the tight-lipped secrecy of the Mahathir Mohammad era, whose 22-year reign as Prime Minister saw rapid economic development matched by expansive curtailments on individual freedoms.
"We hope to use this to pressure other states under the Federal Opposition like Penang, Kedah and Kelantan to follow suit, as well as eventually the Federal Government," says Gayathry Venkiteswaran of the Coalition for Good Governance in Kuala Lumpur. CGG is one of many members of Malaysian civil society working with the Selangor government on the draft version of the bill.
Gayathry's comment highlights the difficulty of implementing any Right to Information legislation in Malaysia, a nation whose Official Secrets Act provides the Federal Government with broad discretion to classify any government-controlled information, and whose Internal Security Act sanctions the imprisonment without trial of any individuals deemed to be acting "in any manner prejudicial to the interests of the security of Malaysia." The Selangor bill does not apply to information controlled by the Federal Government, and does not carry the power to override OSA restrictions. Moreover, it requires applicants to state the reason for and purpose of their information request, and provides for the arrest and detention of individuals deemed to have used information "contrary to [that] reason and purpose."
This last clause has drawn the attention of RTI advocacy organizations both domestically and abroad. London-based NGO Article 19, whose book Freedom of Information: A Comparative Legal Survey was a key source for the drafters of the Malaysian law, emphasizes repeatedly that the public does not need to provide reasons for their information requests because that information belongs to them independent of any context.
Sonia Randhawa, coordinator for the National Campaign for a Freedom of Information Act, agrees. "This document is still premised on the idea that the Government owns information and allows people access to it," she says. "But the Government holds information on behalf of the people, who have a right to access it--after all, they pay for it!"
Randhawa believes that these requirements for 'reason and purpose' serve as de-facto obstructions to the spirit of open government, and interfere with the public's ability to do anything with the information they obtain. "Let's say I want information on water contracts to help me sleep at night," she says. "And while reading them, I find something which indicates that there was a huge pay-off to a government officer by one of the contractors. Under the current enactment--with no protection for whistleblowers--I would be fined for revealing this information."
The bill now falls under the purview of a Select Committee charged with "public consultation, research, and study," and is expected to be tabled for passage early next year. Should the bill pass, Malaysia would join Indonesia, Cambodia, and Thailand in the list of Southeast Asian nations holding some kind of RTI provisions. The Philippines' Freedom of Information Act is currently pending in the Senate.
Despite the Malaysian bill's problems, Gayathry remains cautiously optimistic. "I think it's a milestone, because Selangor will join more than 80 countries in having the law. Of course, coverage is limited since it cannot govern other information under Federal jurisdiction--but at least its a start."
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