Lex; in Breve
The online supplement to our eponymous journal features concise and insightful articles penned by law students from the University of Malaya, as well as guest writers.
The protection of freedom of information is still indeterminate in Malaysia
As the popular saying goes, “the control of information is the tool of the dictatorship.” Further reiterated by the European Court of Human Rights, it is undisputable that access to information is crucial to the notion of transparency and good governance.
The right to freedom of information is important for the access to government-held information, which concerns public interest. It is not only a right guaranteed under multiple international declarations and covenants, but also a limb to the coveted right of freedom of expression. Information relating to corruption of public officials, government development projects, embezzlement of public funds by officials, et cetera will not be available to the public without the right to freedom of information. This right is crucial for journalists worldwide as it champions press freedom and its power to report on any matter which the public has the right to know. With that, the public is empowered to monitor the integrity of the government and is assisted in making an informed choice in elections upon their scrutiny of government integrity.
Despite international recognition, the protection of such a right in Malaysia is still indeterminate. A 1999 resolution endorsed by the Commonwealth Heads of Government, with Malaysia included, declared that the right to freedom of information should be guaranteed as a legal and enforceable right. Malaysia is also a signatory to the ASEAN Declaration of Human Rights (ADHR) which endorses all rights stated under the UDHR, thus impliedly recognising the right to freedom of information. However, the position taken by the legislative and the judiciary proves the contrary.
II. Recent Case Law
The case of Haris Fatillah has recently reaffirmed the Malaysian judiciary’s reluctance to acknowledge such a right. The case revolves around a voter’s petition to the Election Commission (EC) for all relevant information regarding the delimitation process. This is to enable him to make an informed representation under s4 and s5 of the 13th Schedule of the Federal Constitution. Upon the EC’s failure to supply such information, the appellant made a petition to the High Court. The High Court then ruled against him for his failure to demonstrate that he possessed such a right under the Federal Constitution. In the Court of Appeal, one of the grounds of the appellant is that the right to information is implicit in the freedom of expression guaranteed under Article 10(1) of the Federal Constitution, which aligns with international standards.
The appellant cited the case of Sivarasa Rasiah, where Gopal Sri Ram FCJ (as he then was) said:
“Article 10 contains certain express and, by interpretive implication, other specific freedoms. For example, the freedom of speech and expression are expressly guaranteed by art 10(1)(a). The right to be derived from the express protection is the right to receive information, which is equally guaranteed.”
The counsel of the appellant also brought to the court’s attention the position adopted by Canada, on how there is no need for a federal legislation for the right to information to be substantiated. The appellant cited the case of Ontario, where the Canadian court held that federal legislations on the right to information do not merely create such a right, but facilitate that right and strike a balance between competing interests. The appellant also contended that the right sought by Mr Fatillah is one that is necessary for the meaningful exercise of free expression on matters of public or political interest, as required in the case of Irwin Toy.
Regrettably, the court observed that neither the Indian nor the Canadian position should be adopted by the courts of Malaysia. This is because Malaysia does not have a specific statute which effectuates the right to information and our version of freedom of expression differs from that of other countries. The court took the stand that the Federal Constitution stands on its own right and may only be interpreted within the ambit of the wordings of its provisions. They further stressed that such wordings “can never be overridden by the extraneous principles of other Constitutions”. In support of the stance they took, the court cited the cases of Kok Wah Kuan and Loh Kooi Choon where the courts opined that the ultimate touchstone of constitutionality is the constitution itself, and not any general principles outside of it.
III. The Official Secrets Act 1972
As for the legislative stance on freedom of information, it is necessary to discuss and consider the rippling effects brought about by the Official Secrets Act 1972 (OSA). The OSA utilises the term ‘official secret’ to describe classified information. However, there is no substantive definition for it. For example, an official secret is defined loosely as any official document which may be classified as a secret by a Minister or public officer. To further widen the definition, a public officer is defined as “any person holding any office… under any public service”. Thus, these two definitions construed together would mean that a document may be declared as an official secret with great ease and flexibility. To exacerbate the devastating effect of this Act, the executive branch’s classification cannot be questioned by the courts where a certificate of conclusive evidence is issued. In essence, the Act only lays out a vague procedural mechanism for marking official secrets. It does not prescribe a substantive right or procedure for individuals to apply for a declassification of document.
As an effect, the OSA completely locks away government secrets in its own closet of skeletons. It grants the executive unfettered discretion to brand any document and information as an official secret. Rejecting public interest and honourable intention as a ground of defence, the OSA does not offer protection to whistle-blowers. It effectively seals off access to government information from any interested party due to the criminalisation of such a right. Hence, based on its interminable boundaries, the OSA has completely excluded the right to freedom of information in Malaysia.
An illustration of the effect of the OSA can be seen in the Malaysian Trade Union case. The case concerns the Malaysian Trade Union Congress’ application to a Minister for a copy of the concession agreement and audit report justifying the 15% increase in water tariffs. The application was rejected by the Minister on the grounds that it is a classified document. In the Court of Appeal, the court held that members of the public have no right of access to documents relating to the operation of government departments. In the Federal Court, the appellants similarly relied on the case of Sivarasa Rasiah  to argue that a citizen is entitled to access to government information, especially when it is necessary for the meaningful exercise of free expression on matters of public interest. The court held that the audit report, being a Cabinet document, is an official secret. Therefore, the appellants were prohibited from accessing it.
IV. State Enactments
Despite the hoo-has, there is still a glimmer of hope for the right to freedom of information in Malaysia. The Selangor and Penang Freedom of Information (FOI) Enactments seek to recognise and uphold that prominent right, even if it is within the limited boundaries of each state.
The pioneering step towards the protection of freedom of information began in Penang, when the Penang FOI Enactment was passed by the State Legislative Assembly in November 2011, and assented by the Yang di-Pertua Negeri in January 2012. The Selangor FOI Enactment on the other hand was gazetted in August 2011 and came into force in March 2013. With these Enactments, Malaysia joins Indonesia, Cambodia, Philippines and Thailand in the list of Southeast Asian nations holding a form of right to information provision.
However, these State Enactments are only limited to information held by state governments and do not carry the power to override the restrictions imposed by the OSA. The Selangor Enactment still requires the applicants to provide reason and purpose for the request of government information. In addition, the State Enactment empowers arrest of individuals who is deemed to have used such information contrary to that specified reason or purpose. Ms Sonia Randhawa, the coordinator for the National Campaign for a Freedom of Information Act, believes that these requirements for ‘reason and purpose’, along with the capability of arresting individuals deemed to have misused such information, still serve as a hindrance to the spirit of open government. This may in turn circumvent the public’s ability to materialise any action with the obtained information.
Nevertheless, the existence of these two Enactments is a good initiative to pressure other states to follow suit. One day, it might also influence the Federal Government to enact Malaysia’s own Freedom of Information Act, which in turn will actively uphold this vital right in the nation as a whole.
Malaysia has evaded the protection of the right to information effectively to this day. Despite being a signatory to the ADHR, which affirms all civil and political rights in the UDHR (including the right to information), Malaysia has faced obstacles in adhering to the provision. The absence of an express provision governing the right to freedom of information, coupled with the existence of the OSA, has effectively obstructed the recognition and protection which this pivotal right deserves.
A positive step, although a minor one, has appeared in the form of two State Enactments. However, it is still unable to detach from the extensive clutches of the OSA due to its limited jurisdiction by law. Therefore, greater leaps must be taken for the protection of such a right to be instituted. The judiciary should be willing to be more receptive of international principles and adopt a more liberal interpretation of the Federal Constitution in order to extend its protection of fundamental liberties of the people. Also, a judicial review of the constitutionality of the OSA must be conducted for its alleged disregard of the rule of law in its provisions. As a further step, Malaysia should ratify the International Covenant of Civil and Political Rights (ICCPR) before the nation may be dignified as a developed nation which endorses the protection of civil rights. If the proposed measures are followed, only then can Malaysia possess a similar level of prestige as other nations in championing the liberties of its people.
Written by Iqbal Harith Liang, a second year law student of the Faculty of Law, University of Malaya.
Edited Corina R. Mangharam.
 Freedom of Expression and Information and the Case Law of the ECtHR and the Court of Justice of the E.U, Council of Europe Publishing; Roşiianu v Romania  ECHR 648.
 Universal Declaration of Human Rights, Article 19; International Covenant on Civil and Political Rights, Article 19, Inter-American Declaration of Principles on Freedom of Expression, Article x; European Convention of Human Rights, Article 10; 2011 Joint Declaration by the UN, OSCE, OAS and ACHPR, Aarhus Convention.
 UN General Assembly, Resolution 59; Universal Declaration of Human Rights, Article 19.
 What Malaysians Should Know about Freedom of Information, Cynthia Gabriel. Retrieved at https://www.malaysiakini.com/news/341344; Commonwealth Freedom of Information Principles 1999.
 ASEAN Declaration of Human Rights, Article 10.
 Haris Fatillah B Mohd Ibrahim v Suruhanjaya Pilihan Raya Malaysia  MLJU 45.
 Sivarasa Rasiah v Badan Peguam Malaysia & Anor  2 MLJ 333, pp 343-344.
 Ontario (Public Safety and Security) v Criminal Lawyers' Association  1 SCR 815.
 Irwin Toy Ltd. v. Quebec (Attorney General)  1 SCR 927.
 Haris Fatillah B Mohd Ibrahim v Suruhanjaya Pilihan Raya Malaysia  MLJU 45 para 44.
 Public Prosecutor v Kok Wah Kuan  1 MLJ 1.
 Loh Kooi Choon v Government of Malaysia  2 MLJ 187.
 Official Secrets Act (Act 88) 1972.
 See footnote 13 above, section 2.
 See footnote 13 above, section 2.
 Official Secrets Act 1972, section 16A.
 Shad Saleem Faruqi, “Putting a lid on government secrets”, News Article, 27 February 2007, General Opinions/Comments, 5 February 2018 <http://www.malaysianbar.org.my/index2.php?option=com_content&do_pdf=1&id=7836>
 Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor  3 MLJ 145.
 Sivarasa Rasiah v Badan Peguam Malaysia & Anor  2 MLJ 333.
 Selangor, Freedom of Information Enactment 2011 (Sel. En. 23/2011); Penang, Freedom of Information Enactment 2010 (Pg. En. 16/2010).
 Zach Hill, “Freedom of Information Comes to Malaysia”, Huffington Post, 5 February 2018 <https://www.huffingtonpost.com/zac-hill/freedom-of-information-co_b_667864.html>