What happened to Malaysia’s Freedom of Information law?

No Freedom of Information, threats a constant terror for whistleblowers instead

December 10, 2021

Malaysia is experiencing an information warfare amidst an unstable government that places its political sustenance above the needs of the people.

This is to say that non-physical artillery in the form of (manipulated) information is actively being deployed to counter sensitive information that can discredit the government’s public image and cause retaliation to destabilise its fragile administration.

From the start of November 2021, fellow Malaysians have been shocked by a series of allegations involving the upper echelons of powers within the Malaysian Anti-Corruption Commission (MACC) and the Royal Malaysian Police (PDRM).

Whistleblowing website Edisi Siasat implicated both the public institutions in a string of severe criminal activities and abuse of power allegations that ranged from top officers getting their hands soiled with drug trafficking to money laundering activities as well as PDRM’s contribution to the proliferation of illegal gambling dens across Malaysia.

A week after the exposés, Edisi Siasat announced that dozens of mirror accounts had been created in its namesake to spread various versions of the release of its highly-incriminating original data. Subsequently, its Twitter account that amassed almost 100,000 followers was abruptly suspended.

Separately, following the publication of two damning articles (on Oct 28 and 29) by Malaysian anti-corruption activist Lalitha Kunaratnam — questioning the MACC — Asean-based website, the Independent News Services (INS), claimed malicious attempts had been made to disrupt their targeted server, service or network when attackers overwhelmed its surrounding infrastructure that it identified to be a distributed denial-of-service (DDoS).

Essentially, DDoS is a form of cyber attack which constitutes no less than a cyber crime where in the UK, offenders can be held liable to a prison sentence, a fine or both.

The INS articles intricately mapped out enormous stakes in commercial entities held by the incumbent and former chieftains of the MACC whose extensive network of allies included immediate members of their family as well as individuals acting as proxies in business deals.

What’s deafeningly missing amidst these swirling allegations were responses by those mentioned to address the issue.

In light of the disclosures, the people’s trust deficit towards both of these Malaysian law enforcement bodies had further tanked on top of the disrepute they have garnered as public institutions under the purview of the Ministry of Home Affairs and the Prime Minister’s Department, potentially subjected to political interference.

Queries by opposition Parliamentarians regarding the issues were also egregiously shot down with curt replies not more than that of ‘Investigations are underway’, leaving Edisi Siasat and its equivalent compatriots to continue fending for themselves against the dark forces under hefty circumstances. 

The unfolding of the saga further affirmed what has long been forewarned about by Tan Sri Dr Ramon Navaratnam, chairman of the Centre for Public Policy Studies at the Asian Strategy & Leadership Institute — that there exists a ‘deep state’ at work which keeps the masses ignorant of the reality facing the nation.

Information freedom paramount in times of crisis

Notwithstanding the above instances, the unsolicited disturbances faced by the legion of Malaysian whistleblowers in all aspects of the social fabric of Malaysian society further alludes to the absence of the Freedom of Information Act (FOIA) from the country’s legislative system.

With a press industry under duress, further plagued by incessant layoffs in recent years, citizen journalists comprising ordinary citizens are increasingly wary of the narrowing space for crucial information to be disseminated. More have begun relying on the prevalence of social media to shed light on issues at a rate unseen in the past.

The Covid-19 pandemic alone saw dozens of whistleblowers proactively calling out empty-syringe vaccine administrators, errant unmasked politicians holding social gatherings and queue-jumping celebrities for vaccines on the public domain with the intent of compelling legal actions from the authorities.

At a time when the world is battling a deadly pandemic, the significance of having a free-flow of information to keep citizens aware of their surroundings is second to none and the FOI as a fundamental right to be prioritised at this juncture is beyond question.

An FOI legislation renders that all information held by governments and governmental institutions is in principle public, thereby safeguarding a transparent and accountable government that serves the people, and not the other way around.

Nevertheless, it is only clear by the day that the deliberate attempt at suppressing information and cold, hard data, paramount to reflect the real situation of the country, has been done largely to protect the vulnerability of the state and powers-that-be in the peak of this crisis.

People are beginning to feel the pinch as the Covid-19 pandemic plunged the nation into an acute economic crisis, signifying an urgent need for the people to rise in demand for justice where the setting-up of an FOIA can push for higher levels of public engagement in nation-building following increased openness.

Population kept in the dark exacerbates violation of rights

Alas! Malaysia, as a member of the United Nations which commits itself to upholding human rights internationally, regionally and within the country, has failed on a myriad of occasions to fulfil international standards of its obligations in various areas, one of which gravely concerns information freedom.

In hindsight, Malaysia has signed on to only three international human rights treaties — women, children and persons with disabilities — making it the only Asean country with the least number of international human rights treaties signed and ratified.

Since PN wrestled power from Pakatan Harapan in 2020, the administration fiercely exhibited unbridled propensity for curbing freedom of expression. Not much has changed with Datuk Seri Ismail Sabri’s government either on its stance to ‘bestow’ Malaysia with the longstanding FOI law despite assurance from the Law Minister Datuk Seri Wan Junaidi Tuanku Jaafar on Nov 16 that the OSA will be reviewed.

Instead, in its place are a list of harsh laws being imposed against the masses to curb hard-hitting facts from ever surfacing, including interpretation of facts reported by news organisations that the government deems ‘subversive’ or challenge its (political) security.

Among such critical laws imposed against any public person for speaking up are the:
—Section 233 of the Communications and Multimedia Act (CMA) 1998  (concerning Improper use of network facilities or network service, etc) 
— Official Secrets Act 1972 (OSA)
— Sedition Act 1948
Emergency (Essential Powers) (No. 2) Ordinance 2021 (which shares many similarities with the repealed Anti-Fake News Act 2018)
— Printing Presses and Publications Act 1984

Case in point, the Malaysiakini court saga in early 2021 was a typical episode used as an example for muting public dissent and freedom of expression when the court ruled that Malaysiakini should be held in contempt over what were supposedly comments by its readers on an article published on June 9, 2020.

Media under siege

Concomitantly, free access to information is the key tool in combating corruption and wrongdoing. Investigative journalists and watchdog NGOs use this right to uncover information to expose wrongdoing and pursue resolutions for their disclosures.

However, media practitioners in Malaysia face insurmountable hostility in performing their duties. The country has seen scores of journalists being laid off in huge numbers in recent years and these events are sufficient indicators that also point to the dearth of local investigative journalists that are just as rare as hen’s teeth, with only notable ones operating virtually from abroad, namely the Sarawak Report and the Wall Street Journal.

The latest blow to media freedom came on September 8, when media organisations critical of the government were excluded from the media list allowed to report on the Dewan Rakyat sitting on Parliament grounds.

Among those denied entry were the New Straits Times (NST), Utusan Malaysia, Kosmo, Harian Metro, Malay Mail, Free Malaysia Today, The Vibes, The Malaysian Insight, Malaysian Gazette and The Malaysian Reserve.

In an open letter, NST leaders questioned the rationale — or rather, the irrationality — of the decision stating: “For when those who are supposed to bear witness are blocked from doing their duty, democracy will crumble.

It added that as it is, Malaysia’s ranking in the Reporters Without Borders’ World Press Freedom Index 2021 has dropped to 119 this year, which is 18 ranks below 2020 when it stood at 101 out of 180 countries.

Adding to the challenges facing the media was PN’s ‘reincarnation’ of the country’s Anti-Fake News Act of 2018 (repealed in late 2019) in the form of the Emergency (Essential Powers) (No. 2) Ordinance 2021 that yielded a greater setback for press freedom. The law’s decree enables the government to impose its own version of the truth which can spell trouble for an undiscerning audience that’s susceptible to ethnocentric rhetoric.

Whistleblowers treading on dangerous waters

Not just that, principles of the FOI are challenged when Malaysia’s whistleblower protection law itself is rigged with weaknesses. It is also regarded as inferior to the OSA.

For one, Section 6 (1) of the Whistleblower Protection Act 2010 (WBA 2010) concerns the disclosure of (public officers’) improper conduct to any enforcement agency ‘provided that such disclosure is not specifically prohibited by any written law’.

In this context, informants whose content of disclosure contravenes with either the OSA; the Banking and Financial Institutions Act (Bafia) 1989, which although was repealed in 2013, was used to charge whistle-blowing former Pandan MP Rafizi Ramli for disclosing banking information of several parties to the media; and also Section 203 (A) of the Penal Code, for instance, would criminalise them thus, outrightly crushing the rights of any whistleblower who comes forward with government revelation in the interest of the public.

Further to that, protection for whistleblowers, as outlined in the Act, would be revoked upon disclosure of knowledge to other parties apart from reporting it directly to the MACC. How then would whistleblowers come forward to lodge complaints involving enforcement officers or people in power, if even our public institutions are compromised in their integrity?

Therefore, all these events have implicitly scaled back any progress intended to be made for the advancement of the FOIA. 

There are no better ways for the corrupt and powerful to escape prosecution when laws defeating their whole purpose are in place, while the lives of ordinary folks are taken for a gamble.

Are the people at the mercy of corruption?

Transparent governance means that government officials act openly, have nothing to hide from the people and its citizens are constantly kept abreast with all the decisions the government has to make.

But in Malaysia, after slipping six spots on the Transparency International Corruption Perception Index (CPI) 2020 (ranked 51st in 2019 to 57th in 2020) and with the state of corruption in our country breaching critical levels, the government must certainly have much to fear about coming clean with its act.

Which brings to question, is the country then at the mercy of a behemoth as vile as this widespread corruption threatening the security of our nation?

Just recently, Rasuah Busters leader Datuk Hussamuddin Yaacub cited the Global Financial Integrity Report 2017 on the whopping RM1.8 trillion lost between 2005 and 2014 due to corrupt practices in Malaysia which resulted in illicit financial flows. That, he added, are estimated losses of between RM40-60 billion per year due to graft! 

We must, hereby, admit that in order to put the country back on track to flourish and prosper again, the war against corruption must be waged.

And, whether an FOIA is going to materialise in Malaysia or not would depend on the will of the political powers-that-be because ultimately, transparency through Freedom of Information is the weapon we have to use to win that war.

After all, Kofi Annan once said: “If corruption is the disease, transparency is an essential part of its treatment”.

Published by:

Center to Combat Corruption & Cronyism (C4 Center)
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