KOTA KINABALU: The time has come for Malaysia to enact a Freedom of Information (FOI) Act, says the Sabah Law Society.
Its president Roger Chin said events in Malaysia in the past few months showed the necessity for an FOI Act to be enacted to allow democratic shoots to grow.
"FOI is fundamentally a right given to the people to request information from the government. It also encompasses the obligation of government agencies to publish information on a routine basis. International and regional legal instruments recognise FOI as a fundamental right in a democratic society," said Chin in a statement.
He said that access to information helps the public make public authorities accountable for their actions and allows public debate to be better informed and more productive.
"Access to official information can also improve public confidence and trust if the government and public sector bodies are seen as being open."
Chin said in Malaysia, despite having FOI enactments in Selangor and Penang, the federal legislature has yet to attempt bringing a FOI motion to be tabled before the Parliament.
At the Federal level, no specific statute on FOI has been passed so far, he said.
"The current framework of the information system is tightly regulated by the Official Secrets Act 1972 (OSA). This statute generally exempts all classified information from disclosure for any purpose (however noble the intention is) unless the proper authority declassifies the said information.
"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.
"However, the amendment to the OSA in 1986 widens the statute's scope in criminalising all types of communication of official secrets," he said.
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 to 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 to that, 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 stressed that this was not consonant with the general notion of criminal justice, which imposes the prosecution the burden to prove that the communication is damaging to the national interest.
The Malaysian 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 official secrets 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, hence due to the absence of any check and balance mechanism on the Executive discretion.
On the contrary, in the UK, a Ministerial certificate is subject to judicial review, he said.
Chin contended that the FOI Act should be enacted as it would encourage openness and transparency in the government, deter corruption and vices of power, and promote executive accountability.
Chin, among others, reasoned that these would strengthen accountability and enhance the credibility of the political and economic system.
"Some 60 years after the founding of Malaysia and as Malaysia enters into the last third of her first century, the time has come for this nation of ours to install navigational aids such as an FOI Act to warn of dangerous areas ahead and ensure Malaysia's future as a democratic jurisdiction," he said.