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Freedom of information: Making it happen

IN the first parliamentary sitting in 2008 this May, Subang Member of Parliament (MP) and Parti Keadilan Rakyat vice-president R Sivarasa tried to table a private member’s bill on freedom of information (FOI).  Although it appeared in the order paper, the House never reached the item.

R Sivarasa

Sivarasa, who is also a human rights lawyer, has re-submitted the bill twice since then to no avail. Unfortunately, he isn’t expecting the bill to get any time.

“It gets pushed further down the order paper as more government bills are added. I think this is why private member’s bills are so rare. Other modern parliaments allocate time for opposition or private bills, but not here.”

The treatment of private member’s bills aside, Sivarasa’s attempt to revive interest in FOI fulfils part of the Pakatan Rakyat’s promise to the electorate before the 8 March 2008 elections to have a new law guaranteeing freedom of information.

Awareness on access to information laws is still lacking among politicians and the masses. But it is becoming increasingly clear that there is a need for it. This was recently highlighted when Works Minister Datuk Mohd Zin Mohamed announced that toll concessionaires, except for one, would declassify concession agreements made with the government.

Why should toll rates, which affect consumers, be classified secret? Is this not abuse of the Official Secrets Act (OSA) 1972?

An FOI act would oblige the authorities to disclose government-held information when citizens request for it. Such a law would remedy many of the things Malaysians are frustrated about. There would be transparency in government procurements, tenders and the fixing of toll rates and utility fees. Court trials would be speedier. Corrupt politicians would be swiftly charged. Citizens would be able to find out exactly how their tax money is spent, and how much of it actually returns to benefit them.

The result would be a less corrupt, more transparent and mature society. Politicians and the civil service would have to be more professional, knowledgeable and accountable.

Which reinforces the reasons why Malaysians need it, and ironically, also why the current government is reluctant to introduce an FOI bill.

See, Sivarasa wasn’t the first lawmaker to raise the need for access to information laws. Former Kota Melaka MP Wong Nai Chee from the Barisan Nasional (BN) spoke about it in Parliament in 2007. But, there was no follow-up.

In the meantime, some 70 other countries have passed FOI Acts. Some of these are African countries, far less developed and arguably more repressive than Malaysia. Indonesia, China and Nepal are also among those which recently passed FOI laws.

Selangor leads

In May, Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz said there was no need for FOI laws because the cabinet could decide at any time to declassify documents as it sees fit.

The minister who oversees Parliament and law even suggests that MPs such as Sivarasa try a different approach to get such laws enacted. “It’s convention that government bills get priority. He should get in touch with me, and I can arrange for BN MPs and senior civil servants to listen to his proposal,” he tells The Nut Graph.

Not to be thwarted by the slim chance of an FOI bill being introduced at federal level, Pakatan Rakyat states, with the help of civil society groups known as the Coalition for Good Governance, are trying to introduce it in the state legislative assemblies.

Of the Pakatan Rakyat-led states, Selangor has made the most progress and could see the passing of an FOI enactment in its state assembly by mid-2009.

Learning from experience

Selangor Taskforce on FOI chairperson Elizabeth Wong says the state’s elected representatives support the bill because they have experienced how difficult it can be to obtain information.

“FOI will have direct impact on our work. Even executive councilors have to write letters to get access to certain files. In some cases we even have to swear secrecy. It is particularly difficult to obtain information on land-related matters and documents on decision-making,” says Wong, the Bukit Lanjan state assemblyperson.

The taskforce plans to launch education and awareness sessions to introduce the bill to local councilors, the state civil service, public and business sectors.

When the FOI act is in place, she envisions that the public can get access to state health figures, pollution levels, tender information, procurements and other decisions made by local authorities.

While waiting for the bill to be passed, she says the state has adopted an “open government policy” whereby none of the documents or decisions made in exco meetings are classified.

“The media can ask us anything they want about the meetings, and we will not deny anyone’s request if they come to any exco member for information. The issue now is how to operationalise FOI so that it filters through the civil service.”

The OSA

Elizabeth Wong

While abolishing the OSA would be ideal, Wong says the FOI Act can co-exist with the former because FOI provides a separate platform for public access to information.

The Coalition for Good Governance notes that since the OSA does not compel classification of other types of documents outside its prescribed schedule, there is no reason for state governments to fear contravening federal law by enacting their own FOI law. Besides, a chief minister or menteri besar is also allowed under the OSA to declassify state documents.

Secrecy is still necessary in some instances. But these need to be narrowly defined to prevent abuse of power, noted a workshop on FOI in October organised by Transparency International Malaysia, the Swedish Embassy and civil society groups. The forum suggested that areas exempted from public disclosure include personal information, legal privilege, national security and defence, information for preventing or prosecuting crime, protection for whistleblowers, public economic interest and public health safety.

Lasting legacy

Apart from Selangor, the other Pakatan Rakyat states appear to be making slower progress in introducing access to information policies or laws.

Penang has set up a committee to gather input on the kind of information that should be made public. Chief Minister Lim Guan Eng had promised on the day of his swearing-in to initiate an FOI enactment, but compared to Selangor, does not appear to be any closer to achieving this.

Updates from Perak, Kedah and Kelantan could not be obtained despite questions being submitted to the respective excos in charge of information. Non-governmental organisations working with these governments on FOI have noted that there is keen interest but more needs to be done to raise awareness.

The Pakatan Rakyat states are still learning to govern after their unexpected win in March. There will be politicking and polemics but they should make the most of their time in power to keep their promise to the rakyat, and institute lasting legacies.

“That’s why we want an FOI enactment. Just having an open policy won’t last. Policies only last as long as the government of the day does,” Wong said.

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