Sunday, July 11, 2010

Freedom Of Information

Sunday, 11th July 2010

Selangorians may soon have a civil liberty no other citizen in Malaysia can claim. The State Government is tabling its Freedom of Information Bill at the week-long State Legislative Assembly meeting beginning tomorrow.

IMAGINE walking into a state department or agency in Selangor and asking for information on how much was spent on beautifying the streets in your neighbourhood with fancy street lights that stopped working after a few months.

Or about whether the draft plans from 10 years ago have been gazetted.
Or whether the land use in the area where you were going to buy a plot is still fully residential and not changed to include light industrial.

Getting that information might well become a reality as the Selangor State Government is tabling its Freedom of Information (FOI) Bill 2010 during the week-long State Legislature meeting beginning tomorrow.

The Pakatan Rakyat coalition in Selangor is striving to keep the promise it made to voters at the 2008 General Election.

Sarawak being the biggest state and also the richest in term of natural resources should follow Selangor by annex the same bill. This is necessary so protect the native from being robbed by another Tok Uban alike family in the future! By Remaung6Renjer 

In an exclusive interview, Bukit Lanjan assemblywoman Elizabeth Wong tells Sunday Star the Bill would stipulate a response time of 30 days.

However, in life-threatening situations, the information requested for would be delivered in seven days.

But before Selangorians jump up and down for joy, they should bear in mind that this law can only cover what is under the state’s jurisdiction, that is – land, local government, forestry and statutory bodies and state government-linked companies.

“Education and the police, for example, are federal jurisdiction and so they won’t be covered,” says Wong who heads the FOI Special Taskforce.

The other no-no, as in FOI laws elsewhere, are matters relating to national security.

The good news is this is not a profit-making service: applicants only pay the real cost of getting the information.

According to Wong, a Public Information Officer (PIO) will be stationed in every state department.
“Once you make a request, you can expect one of three responses: whether you can or cannot have it; whether they have the information or not; or that you can’t because it’s national security.”

And the Government has to give a reason for any denial of information.

Also, a rejected applicant can appeal to an independent appeal board, much like the Housing Board, for example on whether the information requested indeed relates to national security, Wong says.

She adds that the board will be made up of two former judges as well as those who are advocates and solicitors of the High Court of Malaya, members of the Legal and Judicial Service and others with similar experience. It would not exceed six members.

Selangor Mentri Besar Tan Sri Khalid Ibrahim had announced a year ago that they would enact an FOI law to allow citizens access to information relating to administration.

Why has it taken this long and was there any consultation?

Wong, who is also the state executive councillor for Tourism, Consumer Affairs and the Environment, says the time was spent on consultation and drafting.

While there is existing FOI legislation in 80 countries, including Commonwealth countries, she notes that “drafting is a difficult process.”

“We’ve gone through five or six drafts,” adds Wong whose taskforce members included groups like Suaram, Centre for Independent Journalism (CIJ), Transparency International – Malaysia, and the Coalition of Good Governance.

She says the first draft, which came from CIJ and HRC, was sent to the State Legal Adviser for her feedback and then to a drafting committee for fine-tuning.

And while it went through a few loops of feedback and fine-tuning, the substance of the first draft remains, Wong says.

“We also had a legal firm go through it as well, following which some amendments were made.

“The FOI Bill is a labour of love by all parties – the non-governmental organisations, CIJ, HRC and individuals in political parties.”

The process is crucial

Wong, at pains to stress the process is just as important to Pakatan as the final product, says consultation was a key feature.

And this will continue after the Bill’s First and Second readings in the State Legislature this week.

“After the Second Reading, a Select Committee will be set up to get feedback from a wide array of people like the Association of Civil Servants, Attorney-General’s Chambers, NGOs, civil society and the public.

“Anyone can propose changes and we will take all suggestions seriously,” says Wong, adding that the Bill will be available after its First Reading.

But is Pakatan only looking for feedback on the letter of the law?

Wong says no; educating the public on what freedom of information is and what it will mean for the people is just as important.

“The education of the public and civil servants will be done by the Select Committee, the state and NGOs,” she says, adding that the Select Committee will work out the cost of the whole exercise.

She envisages the process to take three to six months.

When asked whether the Bill was premised on a constitutional guarantee or on international norms, Wong sighs and says: “We’re one of the few left behind who don’t have an FOI law.”

While Selangor’s Bill is based more on international norms, she says, the spirit of the Federal Constitution suggests an FOI law is necessary to advance civil liberties in Malaysia.

“We are also asserting our right as a state – since the Constitution provides that certain areas come under our purview – to make public information that is under our control.”

There was talk after Khalid’s announcement that it was just a political gimmick. Is the state expecting any obstacles, in the form of conflicts with laws passed by Parliament like the Official Secrets Act?

Wong doesn’t see any potential conflict with the OSA but says it may come from the A-G’s Chambers.

Asked whether the State Legal Adviser had been supportive, Wong says Datin Paduka Zauyah T Loth Khan had expressed some concerns early on but that was because “it has never been done before.”

She notes that some Exco members were also cautious but everything had come together in the last couple of months.

“In fact, the legal adviser helped refine the draft for us,” says Wong, adding that the Select Committee’s feedback from the public and studies of other FOI laws would help to further refine the Bill.

How long after it is gazetted will the new law become operational?

Wong says that if civil society feels they need more time the Government would not rush them.

“After all, even the Parliamentary Select Committee on amendments to the Penal Code and Criminal Procedure Code took over a year.”

Britain’s FOI legislation was passed in 2000 but was only enforced in 2005 so everything could be in place. Can Pakatan afford a delay since the next election is not that far away?

“As soon as it’s gazetted, it will be operational.

“It’s an administrative matter. Britain is huge, unlike Selangor, and its information goes far back.

“Governments have been operating in secrecy for donkey’s years. We need to change that.”

Reiterating Pakatan’s promise to “make governance transparent and Government accountable,” Wong adds, “with that always in mind, decisions will be made with accountability in mind.

“That is what the Mentri Besar is trying to do in the Exco and this Bill will standardise a culture of openness and transparency in all local councils and state agencies.”

Asked whether the state would be publishing information pro-actively, Wong says they are doing so already.

And Khalid has been using his powers under Section 2C of the OSA to declassify some of the previous government’s documents, with a mix of success and failure, she says. (See chart).

Once the Bill is tabled, it will be interesting to see whether there will be censorship of information that is released – for example, black lines across certain details in some minutes on a council sub-committee discussion on whether a temple in a neighbourhood is legal; or whether all data will be digitised from now.

And how much of the state Budget is the state prepared to give? Photocopying is not cheap, the training of the PIOs will take time and money; and storing data in an accessible format can be a costly affair.

More importantly, ensuring that the mechanisms for implementation of the Bill are in place will be crucial.

It won’t just be the Federal Government watching what happens in the Selangor State Legislature this week: it will be Malaysians in the other states as well.

By Shaila Koshy, The Sunday Star

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