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A step towards greater transparency of information Print E-mail
Tuesday, 26 April 2011

The Star
by Meng Yew Choong

A step towards greater transparency of information
Getting the point across: A skit by members of the Centre for Independent Journalism and concerned citizens, in support of the Freedom of Information Enactment. – Zainudin Ahad/The Star
 

The Freedom of Information law which was recently passed by the Selangor state assembly is a big step forward towards greater transparency.

THE publication of crime statistics is pretty routine for most police forces around the world. However, last month, the Malaysian police broke ranks by refusing to divulge statistics on sexual crimes against women, as well as crimes against children.

This arose after the Women’s Aid Organisa­tion (WAO), a women’s protection group, had written to the Criminal Investiga­tion Depart­ment of the Royal Malaysian Police asking for statistics, which it had no problems obtaining previously. (The last report was obtained last year for 2009 statistics.)

“We received a reply stating that they cannot release these statistics as they have been classified as confidential. Why should stats on sexual crimes and crimes against children be confidential? Isn’t the request a basic one?” lamented WAO executive director Ivy Josiah, who added that even the Women, Family and Community Develop­ment Ministry had been “advised” by the Police to omit the info in their latest annual report.

For Josiah, this is already reason why this denial of what is ostensibly “basic” information from the police points to the need for a Freedom of Information Act at the Federal level. (WAO is appealing the decision, and is hopeful of a dialogue session with the Police on the matter.)

While the debate on the pros and cons of having a Freedom of Information Act (FOIA) rages on, the Selangor state legislature passed the Freedom of Information Enactment (FOIE) after the third reading on April 1, opening the path for more information to flow from the state departments to the public.

Hailed as a landmark development, the Enactment is historic as it is the first time that any state in the Federation of Malaysia has initiated such a radical move in a country more familiar with the Official Secrets Act 1972.

Legislation pertaining to freedom of information (FOI) in mature democracies like the United States, Britain, Australia and India is common. It is something that the electorate expects from their respective governments. FOI legislation comprises laws that guarantee access to data held by the state, save for a few exceptions.

FOI legislation serves as the basis for setting up the public’s “right-to-know” legal process by which requests may be made for government-held information, and such information has either to be given without cost, or at minimal cost, barring certain exceptions. In a climate where the right to know or right to information is well established, governments are also typically duty-bound to publish and promote openness.

At least 85 countries have implemented some form of such legislation to promote openness, with Sweden beating the rest of the world back in 1766, with its Freedom of the Press Act, widely touted as the oldest piece of law that supports the spirit behind FOI.

The United States’ FOI Act was signed into law by President Lyndon Johnson on July 4, 1966, and went into effect the following year. However, the US FOIA applies only to federal agencies. In response, some of the American states have enacted similar statutes – such as the Freedom of Information Law in New York – to require disclosures by agencies of the state and local governments.

According to ARTICLE 19, an international NGO that has been actively promoting the right-to-information (RTI) movement across the globe, more than 90 countries have adopted FOI laws as of last year. In South-East Asia, Indonesia passed the federal law in 2008, while Thailand did so in 1997.

Surprisingly, the RTI movement only gained momentum rather recently in Britain, where checks and balances on the Executive were traditionally performed by Committees of the House of Commons and House of Lords.

In 1997, the Labour Party presented FOI laws as part of their 1997 election manifesto. They subsequently won, and went on to put up the FOIA 2000. Labour went on to win another term in 2001, and in January 2005, the Act fully came into force (following its step-by-step introduction for different authorities since 2000).

When a country enacts a FOIA, it signals the beginning of a more open climate, and recognises that people have a general right of access, on request, to information held by public authorities.

However, it is important to note that there are numerous exemptions, with some being absolute (especially on matters pertaining to national security or defence), while others are qualified, which means that the public authority has to decide whether the public interest in disclosing the relevant information outweighs the public interest in maintaining the exemption.

According to the Pakatan Rakyat government of Selangor, the FOIE is the first time the Selangor state assembly formed a select committee to examine a Bill. “This is a product of the people of Selangor who desire transparency and openness in the administration of governments. In nine months, NGOs, members of the public and civil servants had given their feedback and suggestions to improve the enactment Bill so that it can be used,” said Elizabeth Wong, state executive councillor for tourism, consumer affairs and the environment.

Essentially, the aim of the Selangor FOIE is to guarantee the public’s right to access information held by state government departments, local councils and state-owned or controlled entities.

Critics of Selangor have pointed out that what Selangor did is actually a crude attempt that somehow contradicts its noble intention in introducing the Enactment in the first place. Prominent Johor-based senior lawyer Roger Tan panned the Enactment as being contradictory to the spirit of FOI.

“For example, the part where there is a fine of RM50,000 for ‘misusing’ the information requested for makes the Enactment more like a ‘Prevention of Information Act’,” Tan said.

Likewise, quite a number of Barisan Nasional assemblymen have criticised both Selangor and Penang (which is mulling a similar move), alleging that the FOI Enact­ment is in conflict with the Official Secrets Act 1972, among others. Nonetheless, what is clear is that critics are not questioning the need for a FOIA, but the substance of these state-initiated legislation.

Media watchdog, the Kuala Lumpur-based Centre for Independent Journalism (CIJ) Malaysia, on the other hand, welcomes this occasion as it heralds an era of greater openness and transparency.

“It is a good law that will allow everyone access to information held by the state government. This access will be useful not only to the average person, but also to journalists as a source of information for their reports toward promoting good governance and accountability,” said Masjaliza Hamzah, CIJ’s executive officer.

Still, that does not prevent CIJ and other NGOs from pointing out that the Enactment has some serious flaws. Firstly, the “right-to-know” or right to information is not given the eminence that it deserves.

“A FOI law should entrench the right to information, whereas the preamble to this Enactment qualifies it as reasonable access to information – unnecessarily so, since there are exemptions provided by the law,” said Masjaliza.

The second flaw is that there is no mandating of periodic publication of information. “Known as the principle of proactive disclosure, this provision would help to reduce the administrative burden on the information officers, and increase transparency across all public bodies,” she added.

Currently, there are also insufficient details on the appointment to the State Information Board, as stipulated under Section 17(2) of the Enactment. Proponents of the Enactment contend that there must be an open and transparent process whereby the public can nominate candidates, and the shortlist made known.

According to CIJ, this move will enhance the independence of the Board, which is a prerequisite if it harbours any hope of being successful as arbiter and monitor for the application of this law.

Other shortcomings include the failure to stipulate the schedule of charges or fees for information requests, though the most ridiculous anomaly, pointed out by both supporters and critics (like Tan) of the FOIA, is the provision under Section 18(1) for penalising the applicant if he or she uses the information obtained in a manner that deviates from the “original” purpose that is stated during the application stage.

What then can the people of Selangor hope for, with the passing of the Bill?

“We encourage all Selangorians to take full advantage of their right to access information and to make the Government open and accountable. It is only through open government as well as a well-informed and empowered citizenry that democracy can be broadened and deepened in Selangor,” said Wong shortly before the Bill was passed.

While Selangor’s FOIE is a good thing, Petaling Jaya City (MBPJ) local councillor Mak Khuin Weng is not among those who are jumping for joy. Acknowledging that the FOIE is rather comprehensive in its scope of coverage, the outspoken former journalist, however, said that an apathetic electorate is also a big part of the problem.

What rails Mak is that most ratepayers generally prefer to let “others” raise the issue, or work towards a proper resolution. “For example, I have been waiting for more than half a year for someone to request for the MBPJ council meeting minutes, just as a test to the system. The Local Government Act allows people to have access to council meeting minutes, but to my knowledge, none has stepped forward to ask for it.”

Mak himself has faced numerous deadends or obstacles when it comes to getting information from his own council bureaucracy (detailed on his blog called Ampersand, hosted on thenutgraph.com). “Even the chairman of the council is not obliged to reply to my letters which, at best, only get an acknowledgment of receipt via a stamp over the counter. At other times, I am not even sure whether the data I am requesting for exists in the first place.”

Of course, difficulty in obtaining information is by no means restricted to councillors; even assemblymen face the same problem. However, Mak is not blaming the lack of a FOIA for the difficulty in obtaining information (unlike WAO’s case, where the refusal is outright, and the reason is clearly stated). Instead, he points to the poor corporate governance culture as a huge source of chaos and disorder when it comes to streamlining administrative matters.

“Many people have complained about the inefficiencies of local government and the lack of coherence in how things are done, causing a few to disregard due process. Others complain about how some officers indirectly hint that things would get done a lot faster if there was an ‘incentive’. Some of the problems raised by ratepayers (in his blog) are neither unique nor new, and clearly point to an administrative problem.

“To the layperson in a predicament, it would appear that the council is filled with incompetence, or at least, nothing moves until the proper ‘incentive’ is provided. Yet, no one steps forward to file a report against such officers, most likely because there is no assurance that action will be taken or for fear of persecution,” said the Democratic Action Party-nominated councillor.

Therefore, how smoothly the FOIE can be implemented at the local council level depends a lot on how the state negotiates the bumpy track called local council “standard operating procedures”.

“One possible issue I can think of is the way councils operate, which is rather independent from one another. This could mean that while one council may deem that Information X can be released to the public, another council may feel otherwise,” said Mak.

Speaking from his experience in dealing with local councils, Mak added that even if instructions were given by the state government with regard to a standardised policy governing certain types of information, the inherent “autonomy” of a local council could derail or delay the speedy release of information.

“For example, it could delay adopting the circular by replying in writing to the state government the concerns it has on the issue. MBPJ has done this before, to circulars issued by the present state government. This is not necessarily my position on how councils should or should not communicate with the state government, but is just an example of what could happen.

“Were it up to me, I’d allow ratepayers access to all the information kept by the council, since the local council is essentially a corporate body for ratepayers and is supposed to act on behalf, and in the best interest, of ratepayers. After all, the Local Government Act states that ratepayers have the right to access the council’s meeting minutes.”

According to Wong, the FOIE is Selangor’s gift to the Federal Government and it can get started at enacting a national-level FOIA.

“We have been operating for 50 years in this culture of secrecy. Instead of everything being open and accessible (barring certain exceptions), our Government operates on the premise that everything is secret unless expressly stated otherwise. This is a paradigm shift, and we want to make it work.”

Expect no miracles to happen overnight, though. Experience elsewhere has shown that it will be a long, arduous road, even if the Federal Government eventually introduces the FOIA. In the case of Britain, it took nearly 10 years from the moment its Parliament passed the FOIA before it was translated into meaningful application for the man in the street.

This is not to imply that no one within the Federal Government is against openness and transparency. At the recent 10th anniversary celebration of the electronic procurement system (ePerolehan), Second Finance Minister Datuk Seri Ahmad Husni Hanadzlah gave some hope that when enough people at a national level push for more disclosure and transparency, things can start to happen.

In a speech, Husni said the dynamics between the Government and the populace have changed.

“If, in the past, the Government could afford to ignore or be dismissive of NGOs, it is no longer the case now as some of them are in fact highly knowledgeable and have in-depth information in their areas of expertise. In the past, we could just reject any application or appeal without the need to give any explanation, or shield ourselves using OSA, but is much more difficult to do so now.

“We have tabled the Whistle­blower Protection Act (2010), and I will not be surprised if we have an FOIA in future. Trends in other countries show that it is something inevitable as the population becomes increasingly educated and knowledgeable. If we aspire to be a high-income nation, then this a phenomenon that we must be ready to face.”

Husni, of course, was not extolling the merits of having an FOIA in his address to his subordinates, but was merely explaining how the eProcurement website (launched on April 1) is able to promote the perception of transparency by making the tender award information public. Husni’s concluding statement hinted at the fact that the establishment does know something about an increasingly sophisticated electorate: “The calls by the public for openness and transparency will increase.”

Penang is expected to follow soon in tabling this law for its second reading, following its first reading last November, and it is understood that the contents are pretty much the same as Selangor’s. At the national level, Sivarasa Rasiah is one of those who can hardly wait to move Malaysia into an era of greater openness. Following Selangor’s decision to pass the Bill, the Subang MP issued a statement saying that he would re-table the private members’ FOI Bill in June, which he first presented in May 2008.

Whatever the case, the period for applause for Selangor is over. CIJ, which leads the FOI Task Force of the Coalition for Good Govern­ance (an informal grouping consisting of the Bar Council and other civil society groups), will be scrutinising the newly passed Enactment line by line to identify areas for improvement.

Wong said the new law would actually be an administrative guide to state departments on how to deal with information. “Then we have to deal with training and publicity, and we have to teach people how to use the law.”

For those who have to deal with Selangor bureaucracy on a regular basis, a grand standing ovation will only be given when the state demonstrates a real seriousness in the outworking of the spirit of transparency.

Johan Tung Abdullah, president of the All Petaling Jaya Residents’ Association Coalition (APAC) which represents 22 residents’ associations, said that there were lots of things that Selangor could do to promote transparency, with or without any FOI law.

“Take, for example, public access to meetings of the MBPJ. Other than the full board meetings, legitimate stakeholders are still not allowed into other meetings where crucial decisions affecting Petaling Jaya are made, such as the meetings pertaining to planning permissions (for development projects). Minutes of such meetings are stamped ‘secret’, and it makes a mockery of things if we have to write in six months later to request for such info, when we could have been allowed access from the very beginning.

“Information can still be disseminated if the proper procedures are in place, and there would not even be a need for any FOI law if these things were present. Concrete steps to facilitate the flow of information should be taken right now, otherwise the whole idea behind FOIE may appear wonderful in form, but lacking in substance,” Johan added.


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