The Right to Know: An Illusion in Malaysia

In his debut post for LoyarBurok, Surenda Ananth eviscerates the notion that the right to know is not entrenched in Malaysia’s Federal Constitution.

So the Attorney-General (“AG”) is looking to amend the Official Secrets Act 1972 (“OSA”) to include life imprisonment and 10 strokes of rotan as punishments for leaking official secrets. He uses China as an example and proceeds to make a statement that, “The right to know is not granted by the constitution”.

First and foremost, most rights need not be expressly stated in the Federal Constitution. Provisions in Part II (fundamental rights) of our Federal Constitution are worded in abstract concepts for a reason. These provisions must be interpreted generously and liberally. In doing so, one must undertake a prismatic interpretive approach to identify rights that are submerged in the concepts employed by the provisions in Part II (See Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301).

Our Federal Court had expressly recognised that the right to receive information (also known as the “right to know”), is subsumed under the right to freedom of speech and expression in article 10(1)(a) of the Federal Constitution (See Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333).

And using China as an example, really?! Malaysia is a country founded on a constitutional democracy. This proposition was stated in the Reid Commission Report and the Tripartite Working Committee Report. It was judicially recognized by the apex courts on numerous occasions. What we should be striving for are international democratic standards. In fact, the Malaysian government agreed as much in its Aide-Memoire to the United Nations on 28 April 2006 detailing Malaysia’s voluntary pledges and commitments in support of its candidature for the UN Human Rights Council, In the Aide-Memoire, the Federal Government stated:

“Malaysia, since attaining independence in 1957, upholds that the promotion and protection of all human rights as an indispensable aspect in the process of nation building. Consistent with the Universal Declaration of Human Rights (UDHR), successive Malaysian Governments have made the guarantee of the individual’s fundamental rights and liberties, as enshrined in the Constitution, the cornerstone of its policies and programmes; while noting that all individuals have duties and responsibilities to the community to ensure the continued enjoyment of peace, stability and prosperity

Another manifestation of the importance that the Government attaches to the enjoyment of all human rights and fundamental freedoms is the promotion of a free media, including in cyberspace, as well as the encouragement of vibrant and active civil societies.”

[Emphasis my own]

Article 19 of the Universal Declaration of Human Rights (freedom of expression) expressly recognises the right to receive and impart information. The same is also recognised in Article 19 of the International Covenant on Civil and Political Rights. In 2010, in a statement marking World Press Freedom Day, the then Special Rapporteur on Freedom of Expression of the UN Human Rights Commission, Frank La Rue, saidIt is imperative that we talk about a “right” wherein ordinary citizens can get information as an entitlement, and not as a favour”. The Commission’s then representative in Central Africa, Maarit Kohonen Sheriff echoed this sentiment saying, “The extent to which journalists can express themselves freely without threats and restrictions, often constitutes a barometer of the human rights situation in a country”.

The right to know is well entrenched in the regions of Europe, America and Africa. Most constitutional democracies, i.e. Australia, Canada, Belgium, Denmark, India, New Zealand, South Africa, South Korea, Thailand, the United Kingdom and the United States, have legislation on freedom of information. Two states in Malaysia, Selangor and Penang, passed its own Freedom of Information Enactments in 2011. Even China promulgated a regulation entitled “Regulations of the People’s Republic of China on Open Government Information” in 2008. Although there are implementation problems in China as predicted, what was less predictable was the dynamism of the Chinese public’s response to this new channel for interacting with their government. (See further ”Update on China’s Open Government Information Regulations: Surprising Public Demand Yielding Some Positive Results” by Jamie P. Horsley of the China Law Centre, Yale Law School.)

Mind you that under the OSA, any public officer can classify any official document, information and material as an “official secret”. The net effect of the OSA is that the right to know is essentially non-existent in this country. Any government official can dictate or decide what the public should and should not know. As an example, sexual crime and child abuse statistics, and our air pollutant index were “official secrets”! Instead of repealing the OSA and replacing it with a freedom of information legislation, the AG now wants to strengthen the OSA. This is completely at odds with the fundamental liberties guaranteed in our Federal Constitution, well accepted international norms and representations made by our government. It is necessary to end this article with one of the functions of the Malaysian AG Chambers, as stated in its website:

“To give legal advice and views to the Malaysian Government in accordance with the principles of international law taking into account the policy of Malaysian Government, public policy, interest and domestic laws.” [Emphasis my own]

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Surendra is currently an associate with Malik Imtiaz Sarwar. He is in a constant state of imbroglio on whether he is in the light or dark side of the force. What he is absolutely sure of is his love for Constitutional Law. He gets annoyed when governmental figures make proposals that are at odds with the Constitution. That means he is constantly annoyed. Despite all that is happening in this beautiful nation of ours, Surendra is one of those fools who believes in a dimming concept called "hope". The only thing necessary for the triumph of evil is that good men do nothing.

Posted on 11 February 2016. You can follow any responses to this entry through the RSS 2.0.

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5 Responses to The Right to Know: An Illusion in Malaysia

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