Legislating Freedom of Information Act in parliament

Nik Nazmi Nik Ahmad

nik-azmiI am honoured to be asked to deliver the keynote speech at Bloggers Universe Malaysia 2011.

I attended the first one – BUM 2007 and have spoken at one or two other BUM events. I was asked to arrange for Tan Sri Abdul Khalid Ibrahim to speak at the BUM event last year.

Some of us have reverted to the mainstream press that we criticised so strongly as bloggers. Some become politicians and consequently caught in the political intrigues. Being a blogger first before a politician, I am pleased to be among familiar faces and friends and hope to never join the first two categories!

On April 1, 2011, the Selangor state assembly created history after passing the Freedom of Information enactment.

This was the third and final reading before the enactment was sent to the Sultan to be signed as law.

It was a long three years from March 9, 2008, when Tan Sri Abdul Khalid Ibrahim announced that a citizen’s right to information would be among the agendas pursued by the new state government in Selangor to April 2011.

I believe that the experience in Selangor is useful for the next step – to push for a repeal of the Official Secrets Act 1972, the Internal Security Act 1960, the Sedition Act 1949 and the Printing Presses and Publications Act 1984 while introducing a Freedom of Information Act at the federal level.

Except for Selangor, Malaysia is truly lagging behind.

Other than the Western democracies, countries such as India, Bangladesh, Albania and Uganda have some form of Freedom of Information legislation. Recently, Nigeria passed its Freedom of Information Act.

This is one case that Malaysia tak or belum boleh.

Empowerment

Freedom of Information is a key institutional reform to keep up with the times – about what the rakyat demands from the government but also about what the rakyat can do in spite of government with all the technology available.

Since 2008, Malaysians have become more interested not only in politics, but most importantly in how the government conducts its business. Malaysians demand more transparency and accountability, particularly in how their hard-earned tax money is spent.

Opening the government up is key towards empowering the rakyat, and ultimately strengthening our democracy. Democracy flourishes with well-informed citizens.

Yes, there will always be the need for official secrets but under our current framework even a tissue paper at a government meeting is theoretically deemed as an official secret!

Last year, the Kuala Lumpur High Court made a landmark ruling ordering the Syabas concession agreement and audit report to be released based on an application by the Coalition against Water Privatisation.

Judicial commissioner Hadhariah Syed Ismail had stated in her 19-page judgement that she was not convinced such a disclosure would be harmful to national security or public interest, as claimed by Syabas and the government.

However the Energy, Water and Green Technology Ministry and the federal government requested a stay order and filed an appeal, claiming that disclosure would “upset the administration of government.”

Institutional reforms are important to ensure that the emerging two-party (or coalition) system that we have today actually has lasting benefit for the rakyat.

There is no use for a two-party system if it means more of the same old policies.

Morality

Ultimately a democratic government rests on a government by the people, for the people. Thus the rakyat have a right to know about what their government does, how their government spends their hard-earned tax money.

We have seen how tens of billions of ringgit are lost each year through wastage, leakages and corruption. These cases flourish simply because the rakyat has very little oversight over government.

Legislating freedom of information is the first step towards empowering the rakyat to stand up for their rights.

Efficiency

By preventing wastage, leakages and corruption, freedom of information legislation can actually make government more efficient. More money would be spent for the direct benefit of the rakyat, not for cronies or contractors. Not for holidays abroad or to privately pursue a daughter’s wedding.

Technology

Then we had the Wikileaks incident. I actually mentioned Wikileaks in my July 2010 speech at the state assembly when the Freedom of Information enactment was first introduced. But then the United States diplomatic cable incident grabbed the world’s attention.

This I believe illustrates how fast technology is moving – and how far behind we are when we are still dictated [to] by an ancient OSA.

Remember – the entire diplomatic cable incident over Wikileaks that not merely brought blushes on Hillary Clinton’s cheeks but actually strained diplomatic relations between the United States and many key allies across the globe was caused by 23-year-old Bradley Manning.

The intelligence analyst merely brought a Lady Gaga CD and then copied all the data into the CD while singing to Lady Gaga tunes.

Keeping secrets from the rakyat is getting more difficult these days.

Trust

Ultimately, freedom of information legislation is key towards restoring the rakyat’s trust with politicians. The tendency to govern by secrecy makes many politicians treat the rakyat as fools. Governing must cease to be a mystery for the rakyat.

Thus, it should come to no surprise that politicians tend to rank low in the trust scale for the public – along with lawyers and salesmen. Datuk Ambiga [Sreenevasan, BUM2011 speaker] – being a law graduate, I empathise with you!

Rumours and gossip are treated seriously in Malaysian politics because of the lack of information. In the absence of reliable and credible sources of information, any piece of information is valuable, no matter how sensational and ludicrous it may seem.

But when the rakyat knows more about what the government is doing, what the civil servants are doing, what the politicians are doing – this will definitely build their trust towards the many unsung heroes who plough on berkhidmat untuk rakyat but who get painted in the same brush as the rotten durians because of the lack of information.

The Selangor experience

As mentioned above, Tan Sri Khalid Ibrahim actually mentioned on 9 March 2008 that one of his first acts as Selangor Menteri Besar would be to “ask the legal adviser to enact a law that will enable the state to give the public the right to information”.

On that same day, Tan Sri Khalid asked me to join his office to assist him in the task of governing, which ended me in holding the position of his political secretary for over two years until July last year.

Thus I was privy to the discussions that took place not long after that involving Khalid and Elizabeth Wong, along with various NGOs, most prominently the Coalition for Good Governance in drafting the Freedom of Information enactment.

The first hurdle we faced were those from within Pakatan Rakyat who felt that freedom of information should not be a priority. Of course, we demanded for it when we were the opposition but now that we’re in a position of power, they felt this would only hurt us.

But believers of freedom of information such as Khalid, Elizabeth and I argued that this is exactly the task before us. The test is not about demanding it while we had no power but to actually implementing it when we have power.

This is not unique to Malaysia.

Tony Blair, in his memoirs actually expressed one of his regrets is introducing the Freedom of Information Act that would later be a tool used by the media against his government towards the end of his tenure.

The state government actually almost adopted wholesale the draft from civil society.

But when the bill was presented to the state assembly in July 2010, it was a much watered down version thanks to some members of the civil service that are under federal control. At times, it read almost like an Unfreedom of Information enactment.

The Pakatan backbenchers, including myself, supported for the bill to be approved but with amendments to restore the original intent and spirit of the law.

BN on the other hand took two contradictory approaches.

One was that the Freedom of Information bill did not go far enough to ensure the right to know for the rakyat. Two was that it was in contradiction to the federal constitution. Maybe one was advised by Khir Toyo and the other, Apco.

The bill was passed at the first and second readings.

It was then decided that for the first time in Selangor’s legislative history, a select committee would be formed to engage in a public consultation with stakeholders and find ways to improve the bill before it was presented to the assembly again for the third and final reading.

Saari Sungib (PAS-Hulu Klang) was selected as chair while I, Hannah Yeoh (DAP-Subang Jaya), Dr Ahmad Yunus Hairi (PAS-Sijangkang), Amirudin Shari (PKR-Batu Caves), Datuk Dr Karim Mansor (BN-Tanjung Sepat) and Abdul Shukor Idris (BN-Kuang) were the members.

Sadly both the BN reps did not attend a single select committee meeting as we sat from July 2010 to March 2011. They had a golden opportunity to present their objections about the bill, even call their own academics and NGOs, yet they ignored the process altogether!

The consultation was extensive – not only with Coalition for Good Governance members but also religious NGOs, government departments, GLCs, academics, think tanks and lawyers.

The result was a substantially improved bill. Among other things, the revised bill is better than the previous version by:

  • allowing local councils and government-owned entities to be covered under the enactment;
  • changing the appeals board into the state information board; and
  • adding the penalties to include obstruction to access to information.

Conclusion

The Selangor experience provides a useful template for any efforts to introduce freedom of information legislation at the federal Parliament. Personally for me the process educated me on the various vested interests against freedom of information and how this can be circumvented through an extensive consultation process with all the stakeholders.

The expertise and passion of NGOs such as the Centre for Independent Journalism and the Coalition for Good Governance have been very useful in building the framework for freedom of information legislation.

At the same time, we need to take into account the practical views of those who will be at the frontline of implementation, namely civil servants and GLC employees who frequently end up as scapegoats in the battle between the rakyat and politicians.

While the Selangor Freedom of Information enactment may not entirely please everyone – which I have learnt is part and parcel of governing – it takes into account the point of view from every stakeholder across the spectrum, except BN of course who chose not to participate.

However, as the experience in other countries has taught us, the real battle is not between political parties but in reality those who are for freedom of information and those who are against freedom of information (and those who pretend to be for freedom of information).

Ladies and gentlemen,

Malaysia is at a crossroads.

While many Malaysians on both sides of the fence are excited about the coming years, a great many more are apathetic or disillusioned. The brain drain and capital outflows, as well as our weakened education system are a sign that something is dreadfully wrong about our country.

Much of Malaysia’s problems emerge because our people feel hopeless and disempowered. They feel like pawns of the elite, jerked around by a wealthy and unaccountable few who care nothing about their needs.

But without the support of these forgotten Malaysians, all the bold plans for transformation, whether the Vision 2020, the ETP/GTP/NEM or Buku Jingga will fail because a country’s strength is in its people and not the plans of its leaders.

Freedom of information is the first step to reversing this dangerous trend because it will restore the confidence and faith of Malaysians.

It will draw them back into a sense of national mission and make them feel part of a coherent whole again.

Above was the keynote speech By PKR communications director and Selangor state assemblyman Nik Nazmi Nik Ahmad at the Bloggers Universe Malaysia 2011 forum ‘Bloggers Solidarity with the Press’ on 11 June 11, 2011 held at the Kuala Lumpur Selangor Chinese Assembly Hall.

 

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