Malaysia

FOI Censored cover

In Malaysia, the Freedom of Information (FOI) as a legal provision is only offered in two states – Selangor and Penang. Both state governments implemented respective Freedom of Information Enactments (FOIE)s that allows anyone to obtain information owned by the respective state governments. However, these existing FOIEs face a grand challenge by federal-level restrictions. The Official Secrets Act 1972 has the capacity to invalidate the FOIE by classifying of information as official secret.

 

The Official Secrets Act 1972

The Official Secrets Act was enacted in 1972 (OSA). Over the decades that it has been in force, it has (together with other laws) institutionalised acquiescence, particularly within the public sector, that information relating to the administration of the nation belongs to the government and is off limits to the public. The resulting breakdown in flow of information contributes to the imbalance in the power relationship between the citizen and the government, and affects the people’s ability to effectively hold government institutions to account.

Information covered by the OSA

The OSA uses two descriptive terms for classified information – ‘official secret’ and ‘official document’ – but does not provide a substantive definition for either. Apart from the Schedule to the Act, there is no description of, or prescribed method to identify, the information that falls under those two terms. The Act simply provides a procedural mechanism for marking official secrets, and makes an ‘official secret’ of anything that is classified as such by a Minister or appointed public officer. It does not prescribe procedures or regulations to control the Ministers’/public officers’ power to classify. It does not impose seniority or other constraints to limit the class of public officers who can be vested with the power to classify documents. Figure 1 below summarises how ‘official secret’ and ‘official document’ are described in the OSA.

OSA flow

 

The Act also empowers Ministers and public officers to issue a certificate of conclusive evidence to certify a document as an official secret. Again, the category of public officers who can exercise this power is essentially left open. The certificate of conclusive evidence ‘shall not be questioned in any court on any ground whatsoever’. While the Act provides for the declassification of official secrets, it does not prescribe a substantive right, or lay out a procedural mechanism, for individuals to apply for such declassification.

The upshot of this is that under the OSA:

  1. every piece of information in the public service is an official document;
  2. any official document is liable to be classified as an ‘official secret’; and
  3. the executive branch’s classification cannot be questioned by the courts where a certificate of conclusive evidence is issued.

The OSA therefore vests full possession and control of government information in the hands of the executive. It gives the executive the sole and unfettered discretion to decide which piece of information within the public service to turn into an official secret; but since every document in the public service is nevertheless an ‘official document’ under the OSA, even the documents that the executive chooses not to expressly mark as an official secret is, by a strict reading of the Act, subject to the restrictions on possession and use imposed on official documents (this is discussed in the sub-section below).

 

Persons liable under the OSA

The OSA criminalises both primary and secondary disclosures of classified information. This means that the parties involved in the original disclosure as well as subsequent parties who receive, posses and disclose the information are subject to criminal penalties under the Act.

The Act also imposes obligations and penalties on external parties who are not directly involved in the possession or disclosure of classified information. For example, the Act compels telecommunications providers to turn over to the government, their customers’ telecommunicated messages, and a failure to do so carries penal consequences.

 

Powers of the State under the OSA

The Act allows for the arrest and detention without a warrant of any person ‘reasonably suspected’ of having committed, who has attempted to commit or who is about to commit an offence under the Act. The Act also empowers police officers to carry out a search and seizure of any premises without the necessity of obtaining a court order, so long as the officer has ‘reasonable cause’ to believe that an offence has been committed and that any delay would frustrate the object of the search. This provision overrides two other provisions in the OSA that require the enforcement body to obtain search and seizure orders from the court.

 

FOI & OSA in Malaysia

The result of the official secrecy regime in Malaysia is that any interested party who wants information regarding government management of public assets and resources has no legal right to obtain the information; any attempt to obtain or any actual receipt of the information is a crime under the OSA. By its scope, the OSA has therefore completely excluded the right to freedom of information in Malaysia. The Court of Appeal recently held as much in a civil case where an interested party had sought the disclosure of water concession agreements and audit reports involving the federal government. In denying the application for disclosure on the basis that the audit report was an official secret under the OSA, the Court of Appeal stated that:

In Malaysia, members of the public had no right to access documents relating to the operation of government departments and documents that were in the possession of government Ministers or agencies.

While Article 10 of the Federal Constitution guarantees the freedom of speech and expression (subject to certain conditions), the right to freedom of information is not expressly protected under the Federal Constitution or in domestic laws. However, legal and human rights experts argue that the right of access to information becomes a recognised human right in Malaysia through the operation of Articles 5, 10 and 12 of the Constitution:

The right to life under article 5 is not merely a question of the right to subsistence; it is a right to quality of life and dignity. In order to achieve [this] we must have a right to inform ourselves… in order to feed into our decision-making process. Article 10(1)(a) is the right of freedom of speech and expression. It is a right to say something and to convey information; it is also a right to receive information in the form of speech and expression. Article 12, which is the right to education… is not just the right to formative education, it is a right to continuous education. And if you have a right to continuous education, you have a right to information. So these 3 articles of our Federal Constitution guarantee a right to information.

– Christopher Leong, advocate & solicitor of the High Court in Malaya of more than 25 years standing, and the Managing Partner of Chooi & Company

Therefore, the right to seek, impart and receive information is central to the freedom of speech and expression but also necessary to effectualise other rights under the Constitution. Malaysia’s acceptance of this position should be undeniable given its participation in international and regional associations and its concurrence to their edicts, where the individual’s right to freedom of information is viewed as part of the protected bundle of human rights.

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