Time for Freedom of Information Act to be implemented to deter power abuse, says Sabah Law Society

Sabah Law Society president Roger Chin

KOTA KINABALU: The time has come for Malaysia to adopt and implement a Freedom of Information Act (FOI) if it wants to uphold the democratic rights of the nation, says the Sabah Law Society.

Its president Roger Chin said events in Malaysia in the past few months showed the need for such a law to allow democracy to grow.

He said the FOI was fundamentally a democratic right (recognised internationally and regionally) given to the people to request information from the government and an obligation of government agencies to publish information on a routine basis.

He said that access to information helps the public to make public authorities accountable for their actions.

“Access to official information can improve public confidence and trust if the government and public sector bodies are seen as being open,” Chin said.

He said in Malaysia, despite having FOI enactments in Selangor and Penang, the federal legislature has yet to bring FOI motions to be tabled before the Parliament.

The current framework of the information system is tightly regulated by the Official Secrets Act 1972 (OSA), a statute that generally exempts all classified information from disclosure for any purpose unless the proper authority declassifies the said information, 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, Chin said.

However, the amendment to the OSA in 1986 widens the statute’s scope in criminalising all types of communication of official secrets, he added.

He said in the United Kingdom, the offence of unauthorised disclosure under Section 2 requires the prosecution to prove certain ingredients, while the Malaysian OSA indiscriminately applies to anyone who is involved along the chain of communication of classified information.

The Malaysian OSA does not consider the damaging implication of the disclosure to attract criminal liability under the Act, said Chin.

“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,” he said.

“Furthermore, Section 8 of the Malaysian OSA creates a strict liability offence; hence the malicious intent of the accused is immaterial.”

“In addition, 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,” Chin said.

He said this was not consistent with the general notion of criminal justice, which imposes the prosecution the burden to prove that the communication is damaging to national interest.

This OSA also contains Executive intervention in the form of a certificate under Section 16A, which provides that a certification by a minister or public officer in charge of certifying certain information as an official secret, shall be conclusive evidence of that fact and shall not be questioned in any court, he said.

Chin said the bar of judicial review by Section 16A may lead to the arbitrary use of the provision due to the absence of any check and balance mechanism on the Executive discretion.

On the contrary, in the United Kingdom, a ministerial certificate is subject to judicial review, he said.

He added that the implementation of an FOI would encourage openness and transparency in the government, deter abuse of power and corruption, and promote executive accountability.

These would strengthen accountability and enhance the credibility of the political and economic system, said Chin.

“Some 60 years after the founding of Malaysia, the time has come for this nation to install navigational aids such as an FOI to warn of dangerous areas ahead and ensure Malaysia’s future as a democratic jurisdiction,” he said.

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