Transmenu powered by JoomlArt.com - Mambo Joomla Professional Templates Club

KUALA LUMPUR, Tues: “It is the mark of an educated mind to be able to entertain a thought without accepting it” - a quote by Aristotle was how the final session of the second day of the 14th Malaysian Law Conference started off by Mark Stephens of Finers Stephens Innocent LLP, London.

He went on to describe the lack of information to base our opinions on like a painting without light i.e. difficult to see and discern. He states that society should be well informed so that they can make rational judgements and decisions.

He also states that press releases tell us when the Governments do something right, but as Freedom of Information Act lets us know when they do not. He focused his talk on the commonly understood freedom of information as the right to access information held by the public bodies rather than any broader notion of free flow of information in society or freedom of expression.

In 1990 only 13 countries had passed access to information laws and there was no authoritative international statements of note addressing the issue and also that there were no NGOs working on this issue outside of a few in those countries which had adopted the legislation.

Today, he states that some 75 countries have passed laws giving individuals a right to access information held by public bodies and another 30 are in the process of doing so. However, Malaysia is not one of those but he hopes the government will soon take steps to redress this. He opines that rarely has any area of law develop so quickly and so uniformly.

He went on to give an example to India which upheld the right to know which is implicit of the right to free speech and information regarding the transfer of judges.

He states that no democratic government can survive without accountability. People have the right to know the facts and by facts he means the actual facts and not the spin doctor facts.

He states that the reason for the information movement taking place to a few key factors namely; globalisation economically, politically and socially has played a role in facilitating the general promotion of human rights.

The second factor is that the world had reached critical mass of achievement in terms of access of information and thirdly access of information is an incredibly powerful campaigning issue and finally, access of information is now more important than it has ever been.

He also states that the developments of freedom of information can be seen through conventions, treaties and international standards such as Article 19 of the Universal Declaration of Human Rights which guarantees freedom of opinion and expression.

He then cited the case of Claude Reyes et al v. Chile which held that the access to public information was a fundamental right. The case revolved around an application by a environmental group for information on the Chilean Foreign Investment Committee relating to their approval of a major logging project. The Committee refused to and the domestic courts found such requests to be “manifestly ill founded”. A group of NGOs and Members of Parliament that Chile’s refusal violated Article 13 which guarantees freedom of expression similar to UDHR.

He went on to state that not all requests were sensitive such as in UK where there were requests for the amount spent by Tony Blair on make up a year as well as the amount of toilet paper used at No. 10 Downing Street.

He then concluded that there can be little doubt that there has been a global revolution in terms of recognition of citizen’s right to access information held by public bodies and it is now considered to be both a fundamental human right as well as cornerstone of democracy. He called for Malaysia to regularise the position and join the growing body of nations with statutory access to information laws.

The next speaker was Tim Robertson, who started his talk by asking the audience a few questions,

“Who believes that there is no corruption in Malaysia?”

“Who believes that all decisions made in Malaysia are made fairly?”

to which no one answered in the positive.

He states that this clearly shows that Malaysia needs a Freedom of Information Act (FIA).

He proceeded to give an example from Australia where in 1970s and 1980s the Australian Government decided to reclaim land for a training facility for their Armed Forces (which the speaker called Armed Fascists!). The committee who planned to do so met every month for 4 years without publicly disclosing any of the information.

However in 1983, one of the members of the committee inadvertently in his drunken stupour let slip of the government’s plans for the facility and the very next day it became big news in Australia.

Because of this in 1993, Australia enacted the first Freedom of Information Act (FIA) and with that the speaker himself made the first request for the minutes of the committee that had been meeting in secret. It took 2 years but in 1985 they managed to get the documents and what they found out was that even within the committee there was opposition internally on environment, health and strategic points and these were voiced by specialists. With this information, they approached a number of politicians and got the Parliament to scrutinise the project. In 1985, the scrutineers called Generals, Colonels and ministers to justify their decision to acquire the land. However, on the day of the result the Ministry of Defence announced the calling off of the project. This was all due to the FIA. The FIA had saved the government a large amount of money.

He went on to give another example on how a copper refinery smoke stack which was spewing acidic ore and heavy metals in to the air which was causing cancer clusters in children. Because of FIA, they managed to get records of the pollution and with that the plant was eventually closed.

He went on to say that the freedom of information is dangerous; dangerous to polluters, manufacturers with products that kill, bureaucrats and politicians that decide contrary decisions. Freedom of Information has been shown to work in places that embraces them. He ended it by giving a guideline to for freedom of information to work and that good governments have nothing to fear from disclosure.

The third speaker for the evening was our very own Mr. Sivarasa Rasiah who answered the question on where we are after 50 years with regard to Freedom of Information. He said that we were going nowhere and has in fact regressed.

The reason for this he states is due to the Official Secrets Act 1972 which he feels is draconian in its inception and incompatible with international standards. It is broadly worded and entrenches a culture of secrecy in matters relating to public administration.

He went on to describe the feature of the act which obstructs the free flow of information from the official source. It is also backed by severe criminal sanctions. The state holds the prerogative to withhold information from the public with specific powers to intefere and intrude with speech.

He then cited the example of Lim Kit Siang who questioned the tenders for naval ships and was convicted and fined RM15000 under the Act as well a few other examples.

He went on to say that the government still felt that the Act was not enough and so they decided to toughen the Act up by adding a mandatory 1 year jail to the sentence of the offence in the 1986 amendments to the Act. He then went on to cite several examples throughout the years from Mohd Ezam Noor in 2002 right up to February 2007 where Tan Sri Khalid Ibrahim, Tian Chua, Ronnie Liu and Dr. Hatta Ramli were questioned under the OSA for revealing the toll privatisation agreements.

He is of the opinion that reforms are clearly needed and he called for the Act to be repealed as a whole or most of it and to be replaced with a Freedom of Information Act.

He is also of the opinion that there should be a comprehensive whistle blower protection legislation but most importantly he says is that the mindset of the executive needs to change to protecting whistle blowers instead of threatening them. A clear example of this can be seen from the most recent VK Lingam video scandal where the speaker as well as several others were threatened with jail under Section 22 of the Anti Corruption Act.

He then asks the question whether the current regime have the political will to implement reform and it is his contention that they do not. The reason he cites for this is that reforms will only happen with a political change starting from a more balanced parliament with opposition occupying at least 35% to 45 % of seats as a real government in waiting. Otherwise there is no reason for the current regime to change the status quo if they have only a 9% opposition as it is now.

He opines that the opposition is a joke and if so then we as citizens are a joke because the current regime will have nothing to worry about from the opposition. They will not change because they do not need to.

The next speaker for the evening was Ms. V. Gayathry who stated that she wanted to reflect on the campaign for a Freedom of Information Bill since Merdeka and wished to represent the views of the civil society groups.

She started off by citing the example of haze and the Air Pollution Index which the Malaysian government refused to publish as it did not want to scare tourists away. The API was a clear example where the general public was denied information which was of public interests. This she opines was the true effect of the Official Secrets Act.

She went on to say that 50 years later since Merdeka, there is still no Freedom of Information legislation and the Official Secrets Act is actively used and defended. The culture of secrecy is still very much alive which in turn inculcates a culture of fear. The widespread use of the OSA is not only in the government but also in privatisation such as in the healthcare services in Putrajaya and Selangor.

She informs us that there had been 2 Freedom of Information campaigns. One in the 1980s and another in 2005. She then explained to the floor the similarities and differences of both the campaigns as well as the responses to the campaigns. Both campaigns are different but somewhat similar because they both have not seen the light at the end of the tunnel but she is hopeful that they will.

She is glad to see that many groups nowadays adopt the Freedom of Information in their work such as Transparency International, Women’s Development Collective and MENGO to name a few.

She went on to highlight the “Kelantan Story” in which the Kelantan State government wanted to legislate the Freedom of Information and she described the challenges that they would face. She broke it down into 3 challenges namely; the constitutional (Article 75 of the Federal Constitution), the political as well as public education which is to say that any legislation would be meaningless if the people don’t know what it is or what it is for.

She was also of the opinion that the information holders are also not trained yet and that they needed to be trained to support public access to information.

The lessons that they have learnt from the campaigns were that everyone has to work together to make it work i.e. they need a concerted effort . They would also need to have a broad based consultation and that any initiative must be supported by a top down approach.

The final speaker for the evening was Ms. Padmaja Padman who started off by stating that her talk tonight was focusing on whistle blowers.

She then went on to explain how whistle blowers worked with the media and that whistle blowers were usually people who were fed up with what was happening. She cited the example of a former high court judge Syed Ahmad Idid who wrote about corruption and abuse of power and indiscretions against 12 other fellow judges. He was forced to resign and had kept quiet until recently when he came on record to say that he had no regrets with what he did and what happened.

She went on to cite a few more examples of whistle blowers and the consequences of the information they provided as opposed to the one who was corrupt and complained against.

She is of the opinion that Malaysians are getting sceptical and that although they were quiet they were not stupid.

She gave a checklist of what the media has to do when dealing with a whistle blower and how they had to verify the story by asking for documentary proof, checking out the reliability of the person, whether the report when published could be defended. She went on to say that the whistle blower had to be checked out on whether they had a hidden agenda or not and whether they were willing to be identified and back their claims. On top of all that they had to get independent corroboration which is usually problematic as usually the whistle blowers would take their time and after a long period of time, records would be hard to come by.

And then after writing the report they would then have to offer the person involved the prior right to reply and on top of that they had to contend with defamation suits as well as various acts and legislations such as the Printing Presses Act, Official Secrets Act, Internal Security Act, Sedition Act and civil and criminal defamation laws.

She states that authorities may also choose to turn on whistle blowers instead of accused via “official enquiries”

She ended her session and the evening’s session by stating that we are at a very sad place but that she wanted to only look forward in the future and not back.

Comments (0)

Subscribe to this comment's feed