KUALA LUMPUR, July 21 — As a citizen of a democratic nation, one must understand that the Right to Information is a fundamental human right possessed by virtue of being human to know how one’s country is being governed.

And Malaysia is no exception either.

It is crucial to understand that public bodies do not hold information on their own behalf but for the benefit of and on behalf of the public as one loses the ability to make informed decisions should the right to know be lost.

Speaking to Malay Mail, Centre for Independent Journalism (CIJ) executive director Wathshlah G. Naidu explained that the Right to Information is a fundamental right recognised under international law which empowers citizens to seek and inspect any information from their government.

"The Right to Information means that there is a presumption, a need to know what’s there. We also look at proactive disclosure, meaning that we expect the State and all its branches to make sure that information is all transparent and all made public. 

"It is not absolute and there will also be certain instances where certain information may be exempted from disclosure based on national security, public order and data privacy, but the presumption has to be that everything is public and whoever is restricting or denying the rights has to give reasons why (they refused a disclosure),” she told Malay Mail during an interview here.

On the importance of having such legislation, Wathshlah questioned how ordinary Malaysians who wish to make an informed decision could hold the State accountable when their access to information is non-existent.

She cited how the Brazilian government was forced to resume publishing coronavirus statistics that show the cumulative toll of the country’s devastating Covid-19 outbreak following public outrage and a court order last month.

According to her, the Right to Information fell under the context of freedom of expression and pointed out that such freedom is not necessarily absolute as there will be legitimate exemptions to it which must follow the principle of necessity and proportionality. 

She also said the aforementioned legislation is not inherently flawed as there are two matters — the harm test and the public interest test — that provide a good check and balance.

"In circumstances where the public interest test prevails, the exemptions do not apply,” she added.

Ideally, a mechanism such as a commission would also be required to act upon complaints from individuals who have not been able to submit information requests as public interest priority will have to prevail.

Malaysia still lagging behind in terms of Right to Know

According to the Global Right to Information Rating, Afghanistan is ranked the highest while Austria and Palau are ranked the lowest. Malaysia is not amongst the countries listed.

Back in July 2019, then prime minister Tun Dr Mahathir Mohamad had pledged to fulfil the government’s commitment to draw up a Freedom of Information Act to replace the Official Secrets Act (OSA). 

Subsequent to Dr Mahathir’s announcement, then law minister Datuk Liew Vui Keong reiterated the government’s stance in repealing the OSA with some of its vital functions incorporated into the proposed Act.

In the Malaysian context, Wathshlah said the awareness level of Right to Information is not very high due to the fact that many do not link information with issues that have taken place. 

"When they fought corruption, they didn’t realise that corruption happened because we didn’t have access to information.

"So when we talk about (awarding) contracts, they understand that it is still within the context of corruption but there is no automatic link in which we may have been able to mitigate corruption if information was available,” she said in justifying the necessity for such legislation in the country.

According to Wathshlah, taking a piecemeal approach such as amendments to the Act is not as effective as repealing the entire Act.

Official Secrets Act the biggest obstacle

Calling it the biggest barrier in their effort to push for a Right to Information legislation, Wathshlah said the OSA is commonly used arbitrarily in the Malaysian context.

"It allows the classification of documents without giving a clear reason why they were classified. They just stamp it. There is also no timeline lapse in terms of how long a document can be classified. The penalty and sanctions (for committing an offence) is also extremely high.

"It creates a sense of fear. As a public officer, how are you to function, to carry on with your responsibility in a transparent manner by disclosing information which you do in good faith?” she said.

In Malaysia, Right to Information as a legal provision is only offered in two states — namely Selangor and Penang — under the Freedom of Information Enactments (FOIE) which allows anyone to obtain information owned by the respective state governments.

Having said that, Wathshlah also said the OSA supersedes other forms of legislation due to its status as a federal law which means that it trumps the two state enactments.

"That is why we are constantly pushing for legislation on its own. To have a Right to Information legislation in Malaysia, it has to be contingent on the repeal of OSA. 

"The OSA in its current form is too broad. It also sort of defeats the purpose of the new law and has OSA constantly hanging over its head. It has to work the other way round,” she said.

According to Wathshlah, taking a piecemeal approach such as amendments to the Act is not as effective as repealing the entire Act.

"You must remember that OSA works on the presumption that everything is secret, whereas we want to work on the presumption of having a right to know and there are exemptions to it,” she added.

An ongoing two-decade battle

Wathshlah explained that the campaign for a Right to Information legislation came about around 2004-2005 during the then Barisan Nasional administration which gained little traction on the federal level but was able to make great strides in the drafting of the FOIE in the two aforementioned Opposition states then. 

The campaign was further reinvigorated when the Pakatan Harapan (PH) government came into power in 2018, in which Right to Information was part of the coalition’s reform agenda election manifesto.

During the PH government’s two-year stint, Wathshlah said CIJ had engaged closely with the Prime Minister’s Department Legal Affairs Division (BHEUU) in collaborating on a new Right to Information legislation.

"During the Pakatan Harapan administration, three options were considered. First, is whether to amend the OSA and make sure there are certain provisions which would sort of give people the Right to Information which we were completely against. It’s difficult because we would never be able to balance which has more power than the other. 

"The second option is having two sets of law. Again, the concern is how to align them. Which would supersede the other?

"The third option is repealing OSA and coming up with a new law but with a very clear understanding that certain exemptions in the OSA are incorporated in the new law,” she said.

Discussions, however, stalled momentarily when the Perikatan Nasional government took over during the February political crisis and with the emergence of the Covid-19 pandemic.

Presently, Wathshlah said CIJ remains optimistic despite new Law Minister Datuk Takiyuddin Hassan having yet to reaffirm the government’s commitment to repeal the OSA since coming into power then.

As the co-chair of the Civil Society Organisation (CSO) Cluster on Freedom of Expression, CIJ would also be jointly organising with BHEUU a closed-door Expert Group Meeting on the Right to Information legislation this coming July 23.

"What is important is how we push for advocacy. So that’s why everything needs to be made practical to us and not just automatically accept it. 

It’s important that when you are accepting information, you know what you’re accepting and you can then challenge what you’re accepting once you have additional data,” she said.