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LAST month, the Selangor State Assembly was in quite a stir. The cause? A Bill to enact the Freedom of Information (State of Selangor) Enactment was tabled.

Needless to say, it wasn’t too long before this Bill started becoming the topic of discussion among intrigued assemblymen, hardened politicians and opinionated bloggers. Coffee shop banter revolved around the Bill and for that moment, terms like the “Official Secrets Act” and “Printing Presses and Publications Act” became household names.

Just don’t name your children after them.

Why would such a Bill lead to so much discussion?

In its very essence, the objectives of this Bill are absolutely
revolutionary. A one-of-a-kind in the history of Selangor and in this nation, a law has been proposed to allow every citizen access to information from a State government and making it a right to access such information.

So?

Well, consider this. In a country and culture ingrained with secrecy, suspicion and often second-guessing what the authorities are up to, this granting of a right to access certain information from the government certainly goes against the grain.

Just take a quick look at the Bill: In the preamble, the part that tells you the purpose for the Enactment, states that it seeks to “enhance disclosure of information for the public interest, to provide to every individual an opportunity to access to information made by every department of the State Government”.

Audacious! How will this be done?

The Bill states that an Information Officer will be appointed for each department in the State government, to act as an intermediary between the department and the public. The public may make an application for information to the Information Officer, who would then have to reply within 30 days (seven days for urgent cases). If the information applied for is not subject to any written law and does not seriously prejudice the State government’s administration of the State, such information would be available.

Sounds like a plan, indeed.

However, what’s even more hotly debated is whether the Selangor State Assembly can actually even enact such a law. Does the Assembly have the authority to do so?

Detractors argue that the Federal Constitution confers such an authority on Parliament alone, and not on a State Assembly, to enact this law. Its proponents, however, say otherwise. So, to find out, let’s dig into the Constitution, shall we?

We begin with Article 74 of the Federal Constitution, which confers the authority on Parliament and the State Assemblies to enact laws on specific areas specified in the Constitution itself.

In the Ninth Schedule of the Constitution, three lists are given — the Federal List (matters on which only Parliament may enact laws), the State List (matters on which only the State Assemblies may enact laws) and the Concurrent List (matters on which both Parliament and/or State Assemblies may enact laws).

As it turns out, in the Federal List, Parliament is given the sole authority to make laws relating to “official secrets” [Item 4(f)]. This is where Parliament gets the authority to enact laws, such as the Official Secrets Act and the Internal Security Act, regulating information that cannot be disclosed to the public.

However, as laws usually are, the matter is not entirely clear-cut. Here, the Bill is different for two reasons: First, it does not seek to prevent disclosure, but to enhance it. Hence, its purpose is not to turn information into official secrets.

Second, it stays clear of existing laws enacted by Parliament by only allowing disclosure of information only if the information is not prohibited by any Act of Parliament, such as the Official Secrets Act, the Printing Presses and Publications Act, the Sedition Act or the Internal Security Act.

So, can the State Assembly still enact this law? Quite perhaps, I think. It seems that the State Assembly has carefully and decidedly stayed clear from meddling with Parliament’s legislative authority and that this law, if it is eventually enacted, will not run afoul of the constitutional provisions that are already set out.

Further, Article 77 of the Federal Constitution states that if there is any matter which has not been enumerated in any of the lists in the Ninth Schedule, the State Legislature has the authority to make laws relating to those matters. This, I think, is one such example.

Perhaps, the more pertinent question we ought to consider is whether this law, if passed by the State Assembly, will effectively grant citizens a right of access to information, which leads to overall accountability and transparency of government to the people. If not, it will only be as effective as a toothless tiger.

Nevertheless, the tabling of this Bill signals a step in the right direction. By passing this law, we are working to achieve good governance and, in time, a better Malaysia.

AU YONG WAI NYAN is a member of the Constitutional Law Committee (ConstiLC), Bar Council Malaysia. The views expressed in this article are personal to the writer and may not necessarily represent the position of the Bar Council.

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