Freedom of Information

DAP calls for greater openness of government, more compatible with parliamentary democracy and more efficiency and accountability

(Speech by the Parliamentary Leader, DAP Secretary-General and Member of Parliament for Petaling, Lim Kit Siang, in the Dewan Rakyat when moving a motion to introduce a Private member’s bill intituled Freedom of Information Act on October 26, 1979)

I move:

That this House pursuant or Standing Orders 49(1) grants leave to Lim Kit Siang to introduce a private member’s bill intituled Freedom of Information Act to ensure openness of government and to prevent the law on Government information from protecting inefficiency, maladminisfration or even malpractices and corruption, by

  1. drastically cutting back the present catch-all Section 8 of the 1972 Official Secrets Act by providing that only specified categories of government information, e.g. matters involving national security or personal information, are protected by criminal penalties against disclosure; and
  2. enacting a new law compelling the government to make records available to the public on demand except in the cases of specified categories of government information like properly- classified documents involving national security or personal information, and the provision for the Court to decide whether such classification is justified or not.

In moving this motion, the DAP is guided by the conviction that if Malaysia is to have a meaningful parliamentary democracy, we must create a more open government, which respects and uphold the fundamental right to know of the citizens in all matter affecting the country and people.

A secret government is by its very definition an undemocratic and autocratic government. Such a government does not become democratic just because once in five years it holds general elections under conditions whereby the people are denied opportunities to intelligently exercise a free choice, the denial of information and access to the electorate, whether through mass media control, ban on public rallies, or the cult of secrecy hiding government information form the public.

Further, we believe that a more open government makes for better and a more efficient government. for instance, if government decision processes had been more open and public, where political leaders and civil servants had to stand public scrutiny of their projects and proposals, we might have avoided or minimized the losses that we suffered from white-elephant projects like the multi-million dollar Senai Airport, the $250 million Kuantan Port scandal which cracked even before it opened, the $2 billion LNG Tankers which will be delivered shortly and will lie idle costing the country to lose hundreds of millions of dollars a year for the next few years; and a long list of others. This is because in an open government, all the feasibility studies of these projects or proposals would have to be made available to the public, and would have the benefit of public scrutiny and examination.

The cult of secrecy of government in Malaysia is being taken to extreme ends. For instance, there appears to be a great competition going on between three Ministries to see who could keep their report longest away from public knowledge – the Ministry of Housing’s Rent Control Act Review; the Ministry of Law’s Accident No –Fault Liability Scheme study; and the Ministry of Education’s Cabinet Review on Education. While the various Ministries are taking their sweet time wondering what to do with these respective reports, are taking their sweet time wondering what to do with these respective reports, can they give a good reasons why these reports should remain secret?

The disease of excessive secrecy, nurturing the illusion that only an elite few are qualified to make laws of decisions merely to be rubberstamped by Parliament and accepted by the people, could be seen in the way the labour law amendments are being prepared. Government Ministers had being declaring for months that drastic amendments to labours laws are coming, and in fact the Deputy Labour Minister, Datuk Pathmanaban, confirmed two days ago in the Dewan Rakyat that the amendments would be tabled at this meeting, but the whole country, the labour movement and even Parliament are in the dark as to the nature of these amendments.

Such obsession with government secrecy has made a mockery of parliamentary democracy, for a meaningful democratic decision making process involves the fullest participation in the formulation of policy or laws, by all interested parties. what the government is doing is to exclude the interested parties in the most important stage of decision-making, the formulation stage, and only bring in Parliament and the interested parties when its mind had already been made up.

Thirdly, the cult of government secrecy also provides a protective cover for inefficiency, negligence, maladministration or even malpractices and corruption.

For instance, the report of the departmental inquiry into the mass hospital deaths in the Malacca General Hospital in August 1972 because of hospital negligence resulting in the breakdown of the hospital auto-clave (sterilisation plant) is still a secret, which serves to protect inefficiency, negligence and maladministration. How could this square with a government which is accountable to the people?

Parliament should therefore give serious consideration to provide for greater openness of government to ensure that there is a democratic, efficient and dedicated Government, which does not use government secrecy laws and regulations detrimental to the people’s rights and interests.

Let me make it clear that we in the DAP accepts that there are some legitimate secrets in a democracy which are important enough to be protected by criminal penalties, e.g. matters involving national security, maintenance of law and order, personal information. There is an inevitable tension between the democratic requirements of openness and the continuing need to keep some matters secret.

What is highly objectionable, however, is the use of criminal law to restrict the publication of matter of public interest – when public interests in fact demand their disclosure.

I am referring in particular to Section 8 of the 1972 Official Secrets Act, which is based on section 2 of the United Kingdom Official Secrets Act 1911.

For sometime, there had been considerable disquiet in UK over section 2 of the Official Secret Act (i.e. our section 8), and a special committee, known as the Franks Committee, was established to inquired into this section alone.

This is what the Franks Committee said about section2:

“We found section 2 a mess. Its scope is enormously wide. Any law which impinges on the freedom of information in a democracy should be much more tightly drawn. A catch-all provision is saved from absurdity in operation only by the sparing exercise of the Attorney-General’s discretion to prosecute. Yet the very width of this discretion, and the inevitably selective way in which it is exercise, give rise to considerable unease. The drafting and interpretation of the section are obscure. People are not sure what it means, or how it operates in practice, or what kinds of action involve real risk of prosecution under it. (Pare 88)”

And in Paragraph 17, the Franks Committee Report described section 2 as a catch-all, saying:

“The main offence which section 2 creates is the unauthorised communication of official information (including documents) by a Crown servant. The leading characteristic of this offence is its catch-all quality. it catches all official documents and formation. It makes no distinctions of kind, and no distinctions of degree. All information which a Crown servant learns in the course of his duty is ‘official for the purpose of Section2, whatever its nature, whatever its importance, whatever its original source. A blanket is thrown over everything nothing escapes.”

Such a catch-all law is incompatible with the creation of an open government. The Official Secrets Act should be confined to provisions dealing with spies, traitors and others who intend harm to the nation.

Most people think that government secrets are about protecting the nation’s security against foreign spies, and assume that laws to enforce that secrecy are for everybody’s benefit. But this is true of only a very small part of the information kept secret by government. Most government secrets are kept from the public for reasons that have nothing to do with national defence, and one of the most important of these reasons is simply the convenience of those in power.

Government information unrelated to national security or defence should not come under the Official Secrets Act, and section 8 of our Act should be amended to remove its catch-all quality, so as not to affect information unrelated to national security.

However, reforming section 8 of the Official Secrets Act by drastically cutting back the present catch-all section 8 would do almost nothing to make most government information available to the public.

Openness of Government requires a law to encourage disclosure by compelling the government to make most records available to the public. There would be exceptions, but they should be for reasons spelled out by law. And there must be some impartial judge apart from the government machine to decide whether secrecy for the particular document is justified by one of those reasons.

I envisage that there would be three kinds of government information under the law. First, most government records should be public ones, available for inspection and copying to anyone who asks. Secondly, some information would be exempt from such compulsory disclosure. It would be up to the Ministers to decide whether to publish or not. But an official who did leak such information could not be prosecuted, although he might face disciplinary proceedings. And thirdly, some secrets, the ones that really deserve protection, e.g. matters involving national security, would be both exempt from compulsory disclosure and covered by the criminal law.