Freedom of Information in Malaysia [1 ed.] 9789834228903

Citation preview

GERAK Iniormation series

Freedom of Information

in Malaysia Mohamad Ezam Mohd Nor Fahda Nur Ahmad Kamar

GERAK Gerakan Demokrasi dan Anti Korupsi Movementfor Democracy and Anti Corruption

FREEDOM OF INFORMATION IN MAILAYSIA

GERAK is a not-for-profit, non-governmental movement focusing on issues of

empowering democracy and combating corruption in Malaysia. We welcome all Malaysians to be our GERAK ACTIVIST. Registration can be made via:

* Short Messaging System (SMS) at 013-610 4404 » Official Web Site: www.GerakMalaysia.org * E-mail: [email protected] * Or send mail to our office: GERAKAN DEMOKRASI & ANTI KORUPSI B-1012, Block B, Tingkat 10, Kelana Square, Jalan SS 7/26,

Kelana Jaya, 47301 Petaling Jaya, Selangor, MALAYSIA. Tel: 03-7804 9632 Fax: 03-7803 9423

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FREEDOM

Or INFORMATION IN MAILAYSIA

Mohamad Ezam Mohd Nor Fahda Nur Ahmad Kamar

Gerakan Demokrasi dan Anti Korupsi

2007 PUSTAKA PERDANA

RN 1007056

©Gerakan Demokrasi dan Anti Korupsi Published by Gerakan Demokrasi dan Anti Korupsi B-1012, Block B, Tingkat 10 Kelana Square, Jalan SS 7/26,

Kelana Jaya, 47301 Petaling Jaya, Selangor. No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles and reviews. Perpustakaan Negara Malaysia

Cataloguing-in-Publication Data

Mohammad Ezam Mohd Nor, 1967-

Freedom of Information in Malaysia / Mohammad Ezam Mohd Nor. Fahda Nur Ahmad Kamar (Gerak Information Series) ISBN 978-983-42289-0-3

1. Freedom of Information--Malaysia. I. Fahda Nur Ahmad Kamar, 1976I1. Title. 323.44509595 Layout, typesetting and printing R Publishing Services

19A Jalan 3/23B, Taman Danau Kota, 53300 Setapak, Kuala Lumpur.

Content

Foreword

Vit

In Search for Freedom to Receive and Impart Information — My Experience f\gainst Dcpri\*ation of Truth: The Search for an Enforceable Right

Appendix OSA — A Shelter for the Corrupt

11

Foreword

eedom is never absolute, but a matter of degrees. A man

can be imprisoned yet unbound by the chains that otherwise restrain his fellow citizens outside. The concept of freedom lies not only in the implementation of laws restricting movement, participation, conversation, political activity or economic interest

but also by the acceptance of an individual of the limits, seen and unseen, that is imposed on him by the higher authority, be it a

government or a majority group out to suppress the minority.

When man talks of freedom in the 21* century, it is easier to see that to the extent of individual liberty, freedom has been made

boundless by new technology. When writers of days past can dream only of thoughts that fly by the twinkle of an eye, to us this is already a reality. Yet we are no less in chains than our forefathers. The restriction comes not by the suppression of thoughts, but the

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FREEDOM OF INFORMATION IN MALAYSIA

shaping of such by the masters who herd our mentality to a certain enclosure. Individual liberty is therefore as it has always been, at risk. Take for example, the case over the building of the ‘scenic

bridge’ between Malaysia and Singapore. In the fracas that developed, the essence of the debate, that is, the exchange of letters, agreements and conclusions between the two governments

(or even between specific leaders within those governments) have

remain shadowy and grey. The workings of both these governments remain a mystery to many of its citizens. While the public is drummed up into supporting one view or the other by the controlled media, the political and economic benefits of such a union remain in the background. Freedom of information allows the public to form its opinion through individual thought and as

such is an extremely powerful tool of individual liberty. GERAK promotes not only the struggle to ensure that laws do not suppress but that individuals are aware of the risk that attach itself to modern day life. The purpose of this organization is therefore two-fold: one, to ensure the world we live in is made up of such laws that protect but do not restrict and two, that individuals remain the most influential determinant of the limits

of liberty.

1 January 2007

In Search for Freedom to Receive and Impart Information — My Experience* Mohamad Ezam Mohd Nor

reedom of Information is a subject close to me and in a

way, a personal struggle. It is a tool by which many of us hope to achieve the necessary reforms required to move

this country forward. The cult of institutionalized corruption can only be eradicated by such means. On a personal note, apart from being detained under the ISA, I was also charged, convicted but subsequently acquitted under the repressive Official Secrets Act in 2002. Albeit acquitted, I served my time incarcerated in Kajang Prison for more than a year and was denied my basic right to participate in the 2004 National Election. Price I have to pay for disscminating information in this country.

* Adapted from a working paper presented at a Bar Council Forum held on 22°* April 2006.

FREEDOM OF INFORMATION IN MALAYSIA

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Official Secrets and Secrets of Officials

The Official Secrets Acts 1972 is said to be an act which seeks to protect “official secrets” from unauthorized release. The law aims

to ensure that any official government information is not to be received, retained or released without prior authorization. What matters is the receiving of such information — the method by which it is acquired, whether innocently, in good or bad faith does not matter. An “official secret” has been defined in the Act to mean:

(i) any document specified in the Schedule to the Act;

(ii) any information and material relating to the scheduled documents; and

(iii) any other official document, information and material which has been classitied as “Top Secret’, Secret’, ‘Confidential’ or ‘Restricted” by a Minister,

the Menteri Besar or Chief Minister or a public

officer appointed under s. 2B. The documents which resulted in my two-year term in Kajang were none other than the revelations I made about reports concerning two senior ministers; Datuk Seri Rafidah Aziz and Tan

Sri Abdul Rahim Tamby Chik. These were genuine reports prepared by the Anti-Corruption Agency and the AttorneyGeneral’s office recommending prosecution on corruption charges. The evidence is clear and the report was already completed. | witnessed how our ACA officers had painstakingly gather evidence. They did their part, yet they were powerless to execute. Hitherto, the two senior ministers remain ‘highly innocent and free’. There is in fact nothing new about this. I still recall, with much displeasure

In Search for Freedom to Receive and Impart Information

5]

and disgust, the days in government when I had to be part of a difficult effort to resist bailouts and the indiscriminate use of government funds for the sake of certain connected individuals.

This was when the government was badly hit by the 1997 economic crisis which spelled trouble for the vast number of mega projects and crony companies. It was this resistance which ultimately led to Anwar Ibrahim’s expulsion from the government and reformasi. Institutional corruption and abuse of power is never acceptable. We have to start drawing the line between national interest and self interest. I am much encouraged by the statement in the Public

Interest Disclosure Act in the UK which was enacted mainly “to encourage people to blow the whistle about malpractice and to ensure the authority respond by acting on the message rather than

the messenger”. In this country I am not the first messenger to be targeted and hit. There were many others before me and I believe that there will be others after me. Access to information is an important check and balance mechanism in monitoring the exercise of powers by the executive

branch. The public has a real role to play as whistle-blowers who will expose the truth. This is part of a citizen’s right, duties, and moral obligation. The government should welcome, rather than fear, the truth.

OFFICIAL SECRETS ACT (OSA) — A shelter for the corrupt We have to remember that even the judiciary and the judiciary process are ill-equipped to deal with this abuse of power. The law as it 1s demands that the court does nothing other than convict the person holding the so-called ‘secret” documents, regardless

of the value of the secret. I have said this in my mitigation speech

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FREEDOM OF INFORMATION'IN MALAYSIA

and will say it again that there is then no ditference between vital information on corruption and toilet papers other than the stamp of ‘RAHSIA’ When I was first appointed Political Secretary at the age of 28, [ was given a document stamped ‘RAHSIA — my appointment letter. However, contrary to the secrecy the document promised, there was in fact no secret to my appointment nor was there any attempt for my appointment ceremony to be held in secrecy. How then does one decide on what truly constitutes ‘RAHSIA BESAR’ ‘RAHSIAY ‘SULIT* OR“TERHAD? A ‘fevw. 'days ago, 2

SUHAKAM commissioner relating SUHAKAM’ own experiences in this matter. Datuk Ranita Hussein wrote in The New Straits Times, “Another challenge relates to Suhakam’s powers of investigation. The law empowers it to obtain all necessary evidence for the purposes of an inquiry. In practice, however, government agencies are reluctant to release their documents. This delays and compromises the conduct ofa comprehensive inquiry”. The conclusion that can be drawn is simple. OSA remains a powerful tool for the government to hide important information. The indiscriminate use of the title ‘secret’ is no longer a secret. 1 am certain that the government’s wish is for them to continue to huddle and keep secret each others’ secrets, with the help of so many repressive laws that have yet to be amended. OSA ofcourse, is no more and no less, a shelter for the corrupt.

Political PR vs Political Change We were promised change by Prime Minister Abdullah when he first held the reigns of power. We were told that his government years for transparency and will be a government of integrity. |

In Search for Freedom to Receive and Impart Information

5

applaud the existence of Suhakam, the existence of Royal Commissions and various reviews committees. We now have the Malaysian Institute of Integrity but I ask, where have we sailed in our ship of integrity if not to sink further through inaction? Notwithstanding the list of ‘institutes’ and ‘committees’, we have yet to witness constructive change — the conversion of recommendations into action. A recommendation is only constructive if it is noted in the form of a new legislation. Such temporary measures do no more than to obfuscate the facts and lull our minds into thinking that we have changed. This is where we have to stand on firm ground and say that real change, thus far, is not forthcoming. We have yet to welcome any new legislation which promises greater transparency and integrity in a government. GERAK believes that change, in any administration must start from legislative change. Once again I call upon this government — walk the talk.

In the present circumstances, I only have but one conclusion, that we have a government keen at doing political PR and not political change. That the government intends to be different than

the government before, yet remain indifferent to the actual needs of the nation. The hidden message has clearly surfaced — the political will to change is absent, hence status quo remains. The government

is spin-doctoring rather than coming down to the crunch and dcaling with the actual problcms.

Political Honesty I[f we did for a moment, thought that we are in the road to real change, let us think and reflect again. I resolutely believe that change must start with the law. For that to happen, we know that

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FREEDOM OF INFORMATION IN MALAYSIA

political honesty remains a core issue. Unless and until our government honestly wills a constructive change, can we witness any constructive measure being taken. In terms of legislative changes, we need only for a brief moment, look at Indonesia. Former President B] Habibie may be forgotten now because he was in power for only 16 months, during its transition period. Yet, he managed to change hundreds of laws and that itself was the most powerful locomotive for reforms.

The number of repressive laws that we have inherited and have enacted in the name of national interest 1s amazing. We still have the draconian ISA, OSA, University and Colleges Act, Press and Printing Act and the list goes on. And yet, not a single change has been made to any of these acts after more than 3 years of having a new Prime Minister and an administration who had initially announced loudly their commitment for change!

FOIA — much needed remedy The essence of a genuine FOI law is the citizen’s legally enforceable right of access to government information, subject only to defined and specific interest exceptions to disclosure, with an independent adjudicator to determine disputes over refusal to disclose. We have in our constitution, inalienable rights and freedoms, which include among others, tfreedom of expression. This freedom must

include FOL. As a matter of comparison, Article 10 of the European

Convention of Human Rights confers the right to freedom of expression and it thus includes the “freedom to hold opinions and to recetve and impart information without the interference

In Search for Freedom to Receive and Lmpart Information

7

of the public authority”. I am not denying that opening up the government and maintaining the desired level of confidentiality is a delicate balance to be struck. I was once in the government. However, in as much as I can appreciate the need for the

government to have, to an extent, their own ‘privacy’ in running the country, I know as well that the privacy claimed, more often than not, is unnecessary and to extent, is excessive, unfettered and abusive.

Political Integrity Stephen L. Carter, in his book entitled Inzegrity argues that the opposite meaning of integrity is corruption. I cannot agree more. In the case of Malaysia, political integrity is almost non-existent. Even democracy has been heavily restricted. In politics, there is no level playing field. The Elections Commission (SPR) for example is severely criticized, at every election for the existence of phantom voters and unfair practices. Publication and assembly permits are not given freely even when the rights have been enshrined in the constitution. Itis GERAKs belief that corruption is the nation’s no. 1 enemy. What we have today is corruption, not integrity. As mentioned carlier, eradicating this corruption requires a concerted effort which

must begin with the introduction of new laws. Eliminating the old repressive ones and bringing in new productive ones. We must remember that there exists a strong link between development, lies freedom.

In fact, countries which practice democracy and

free press rarely face problems of abject poverty or starvation. The greater the level of transparency, the lower the corruption, the better the development.

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FREEDOM OF INFORMATION IN MALAYSIA

Way Forward We must understand that the success of FOI in countries such as the UK, US and Scandinavian countries is due to persistence and continuous campaigns. Let us not look far. Even neighboring Thailand has an FOI equivalent in 1997 which succeeded in bringing down Thaksin Shinawatra on counts of corruption for amassing wealth under names of close aides and proxies, a practice very familiar to Malaysia. We can only recall with great embarrassment when due to FOI, a government enquiry in UK revealed the Pergau Dam Scandal in the UK. The dam was said to be linked to a billion worth arms deal in return for the aid to build a dam in Pergau. This Dam was later ruled by the UK High Court to be illegal on the grounds that it was not of economic or humanitarian benefit to Malaysian. Democracy can only thrive with the free flow of informagon. The inextricable link between corruption levels and FOI is undeniable. The greater the freedom, the lower the corrupton levels. That is why we need FOL FOI combats corrupton and one of the greatest problems of this country is that it is terribly corrupted. Since any reform agenda has to be within the democranc space of the country, we need to encourage new laws and legislanons and most importantly — a Freedom of Information Act tor Malaysia.

Time to litigate It is also my belief that lawyers and courts can play 2 role even now, when we have yvet to have an FOIL. We have to remember that through strategic public interest ingaton — we would be able

In Search for Freedom to Receive and Impart 1nformation

9

to create a form of ‘back door’ for access to information. In

litigation, the court will demand the individuals to provide information via affirmation of affidavits which would later

become public documents accessible to the public.

Special committee on FOI and repressive laws At this juncture, I would like to take the opportunity to urge Bar Council and lawyers today to set up special committee to study the current repressive laws, FOI and propose a draft legislation. It may not be a bill today, but we must start somewhere. We must be able to call upon the government to study a feasible model legislation and it is my firm belief that the Bar would be the best party to initiate the study. An FOI charter should be proposed by the Bar Council and endorsed by the civil society organizations, including citizen’s groups, NGOs etc. We need to firmly argue that only with the force of pro-democratic legislation, can we wipe out the effects of an oppressive one.

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Against Deprivation of Truth: The Search for an Enforceable Right Fahda Nur Ahmad Kamar

“Ministers and public servants have a duty to explain their polucies, decisions and actions to the public. Governments need, however to keep some secrets and have a duty to protect the proper

privacy of those with whom they deal.”! This article argues that there is a pressing need for the enactment of a Freedom of Information Act (“FOLA”) in Malaysia and in this quest; the writer seeks to examine the

FOLA which was enacted in

the United Kingdom. The Call

¢ campaign for Freedom of Information (‘FOT) is not new. Todate, nearly 68° countries have enacted laws which provide for access and freedom of information. FOI enables the ordinary citizen to have the right ‘to know’ as it is not a body of laws merely enabling or disabling access to information. Instead, it encompasses organization, classification and retrieval of information through legitimate requests. In short, it is the freedom to receive and impart information. A right included under the freedom of expression under Article 10 of the European Convention of Human Rights, it has been described as

the “freedom to hold opinions and to receive and impart information and ’ ideas without interference by public anthority

12

FREEDOM OF INFORMATION IN MALAYSIA

A layperson might consider FOI to be equivalent to having the freedom to know ‘secrets’- secrets of governments, businesses

and to an extent, individuals. In an environment shrouded with

fear and secrecy, it is understandable how FOI may be perceived to be such an intrusive key, almost akin to having access to the garden of the forbidden fruit. Yet, the very essence of FOI lies not on secrecy or illegality; or knowing what ought not to be known. In fact, FOI is premised on the freedom to know what we

ought to know. It is after all, about access to information which, at all costs, should be within reach.

Absence of Will

There has vet to emerge a proposed bill in Malaysia, only calls for the enactment of FOI. The Movement for Democracy and AntiCorruption (‘GERAK’), has been one of the main advocates for the enactment of FOI. Transparency, good governance and access to information would predictably lead to a corruption free society, with its integrity intact. Even the government-formed commission, SUHAKAM — the

Malaysian Commission on Human Rights, had aptly recognized that “transparency and accountability are the hallmarks ofa truly democratic society. Freedom of information is necessary for such accountability to be

guaranteed.”” Despite the move and realization on the importance of FOI,

political will remains absent. The dismal response by the

government is evident when the call for FOI in Malaysia was axed by the Minister in the Prime Minister’s Department, Dato” Seri

Mohd Nazri Bin Abdul Aziz who said that “he need does not arise... The government is of the opinion that current legislation is sufficient in allowing

Against Deprivation of Truth

15

and ensuring public access to official information.”* This is of course, far from true. As with most governments, official information is jealously guarded, well away from public scrutiny. Government documents are deemed to be classified information and has been specifically listed to be under one of the five classifications under the Official Secrets Act 1972. There are, at present, two (2) categories of official secrets;

(1) any document specified in the schedule (2) any information and material classified as “Top Secret’, ‘Confidential’ or ‘Restricted’ as the case

may be, by a Minister, the Menteri Besar or Chief Minister of a State or such public official appointed under section 2B; °

The first category ofofficial secret may conveniently be referred

to as, “Scheduled official secret” and the second category as LR

“Classified official secret”. The Schedule refers to :

Cabnet documents, records of decisions and deliberations inclnding those of Cabinet committees; State Executive Councel documents, records of decisions

and deliberations including those of State Executive Council committees; Documents concerning national security, defence and

international relations. However, the second category provides for classification in a different manner. There is a somewhat freechand given to define the term “Top Secret’ or ‘Confidential’ as mentioned in s.2B. This

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FREEDOM OF INFORMATION IN MALAYSIA

provision lays emphasis on the party that classifies the document as such, rather than the reasons behind such classification. Further,

a scrutiny of the provisions under the OSA 1972 will reveal that no criteria has been set or determined in order to legally guide the person empowered to issue such classification. Apart from the OSA, it must be highlighted that there also exist a string of restrictions in various legislations prohibiting freedom and access to information.’

Room for discretion necessarily equates room for abuse if misused. Mohammad Ezam Mohammad Nor, a politician who

became a victim of OSA® in criticizing the classification had sarcastically mentioned that there is no difference between vital information on corruption and toilet papers other than the stamp ‘rahsia’ (secret).” Classification of “official information” has been construed very strictly. In the case of Public Prosecutor v. Lim Kit Siang,"" wrongful communication of official information remains an offence regardless of the purpose and however innocent the recipient of what he communicates. There is in actual fact no real reason why the government ought to fear the advent of FOI. It is said that even with FOI, government may manage information and maintain traditional secrecy through various devices such as positive vetting of public servants engaged in sensitive areas, disciplining civil servants under the Civil Service Code, classifying documents, over-use of the

OSA, claiming public interest immunity or even secking injunction to restrain publication in the name of ‘public interest’." Undeniably, should this arise too frequently, the effectiveness of

the FOI Act in force would naturally come into question. Then the other fear comes to fore, that an act is in place but it falls short of conferring the ideals it promises!

Against Deprivation of Truth

§)

Importance of FOI °

An indispensable tool for productivity

Instantaneously, any call for greater FOI would evoke fear. Minutes

of meetings, policy discussions, research papers and other documents could be retrieved. An ordinary civil servant would in reality, have to work in the manner that is expected of him as one serving in the administration of the country. There is no room for complacency, slip-shod work or even illicit deals. Scrutiny is

expected not only from his superiors but also from the man on the street. If one fears that civil servants would rot in the lull of having a stable job not subjected to profit targets or level of etficiency targets pressed for in the private sector, then FOI is the glaring eye that would alter that misconception. There is a common expression when one has to deal with government departments — “It 1s after all, the government!” laments a disappointed man having to deal with long queues or rejection at a service counter. Throughout the years, there has somehow been an almost ‘entrenched’ perception that government departments generally provide slow, poor and inefficient service. Hence the “belief’ that policies of privatization, as evident with the maddening rush to privatize in the 80s', would automatically put these problems at rest and convert these departments into super-efficient companies. In reality, it did not happen as such a perception is obviously fundamentally flawed. Existing as a private entity does not mean that it will embrace efficiency by virtue of its set-up.

The answer to resolving lackadaisical attitude or negligence to an extent, has always been supervision. Supervision means

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FREEDOM OF INFORMATION IN MALAYSIA

monitoring, being subjected to another. In this, FOI works in wonders. It supervises without the cost of a full-time supervisor. Yet, one must always be wary, as the ‘checks’ are requests made

perhaps a decade later or just the next day. It reminds one of spot-checks held in schools to catch the student playing truant.

Fear of the unknown, having to answer to the world at large, is

the equivalent of having ears and eyes of the people in oftices. All it would take is a request, which by standards of FFOI, cannot be reasonably refused and any mistake would be known to all. A

request by the press especially is feared. Investigative journalism would resultin a tell-all episode that could hurt in many unthinkable ways. In such an environment, the ordinary civil servant would be pressed to reform from within, to change not for the sake of the boss only but his own personal sake and survival in the eyes of his

superior and most importantly, the people he serves. °

Blowing the whistle — legally

The term blowing the whistle depicts a situation where one secretly announces a slip-up, a misdeed or other ‘bad practices’. Anything bad, illegal, corrupted, is never committed in the open for all to see. If it 1s in the open, it was upon discovery or investigation,

never by choice. Increasing secrecy and denying access would inevitably mean sowing the seeds of corruption. Corruption

thrives on secrecy and lies. Devoid of public scrutiny, it is almost equivalent to a carte blanche for doing anything according to one’s whim and fancy. In Malaysia, we hardly hear of whistleblowers consisting of civil servants. Most of the ‘revelations’ it made, would be by opposition politicians.”” As mentioned earlier, the

culture of fear is so strong that even personal conviction or moral and religious principles hardly serve as a motivation to uncover

Against Deprivation of Truth

17

the truth. Hence, the constant public reliance on rumours, forwarded mails and possible theories, all without authenticated sources. ©

Media for the People

One of the beneficiaries of FOI, apart from the ordinary citizen would be the media. A proactive media would naturally result as FOI promotes investigative journalism. The inextricable link between free press, free speech and FOI is undeniable. At a glance, these three body of rights may be termed as having the same genus. In the present climate, admittedly, there is only so much ‘investigation’ that can be done. We are all too familiar with the expression a ‘reliable source of information” when reference is

made to news which could not be officially authenticated or quoted. Devoid of FOI rights, even the ‘alternative press’ could not embark on an aggressive journey to uncover the truth and seek information. Again, rumour mongering and speculation cannot be a viable source of news.

L]

True Developmcnt

In freedom lies development — that remains the central thesis of Amartya Sen. The Noble Laureate is on point to contend that famines do not happen in countries where free press exists. An accountable administration would naturally be one which 1is representative, responsible and democratic. Corruption would lessen and society’s resources would be effectively channeled towards development. For holistic growth and advancement, an FOI act which truly confers upon the citizen the legal right of

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FREEDOM OF INFORMATION IN MALAYSIA

access to all information held by government is the possible answer. The benefit it confers to the ordinary man 1s enormous. Even as a consumer, he will benefit. As a means to uncover truth, FOI

allows the exercise of democratic choice for consumers. State

regulatory agencies and purchasing organizations would make information on industry products available to the public. Even environmental NGOs would have access to environment assessment studies. Although businesses would still be able to withhold certain business information, vital information which

relates to information submitted for official purposes would be accessible and subjected to disclosure. °

A Human Rjght

There is no doubt that FOI is not as ‘popular’ or even perceived to be an inalienable human right and all important such as the right to liberty, life and livelihood. However, since 1946, FOI was recognized in a resolution as being a “fundamental human right. ..the touchstone ofall freedoms to which the United Nations is consecrated.” It is a right which applies to “everyone” whether natural or legal persons'” and this right apply to not only to having access to contents but also means of transmission of the information.'® The United Nations Declaration of Human Rights (UDHR),

by tar, one of the most important document ever existed on human rights embodies this right in the form of Article 19 which states :-

“Everyone has the right to freedom of opinion and excpression: this right, includes freedom to hold opinions without interference and to seek, receive and impart

Against Deprivation of Truth

19

ifjommfz'on and ideas z‘broug/) any media and regardless of

[frontiers”. This right which 1s conferred has to be balanced off with the responsibilities mentioned in Article 12 which protect rights to privacy'” and restrictions mentioned in Article 20, Part III of the International Covenant On Civil and Political Rights (ICCPR) which shall only be rights as provided by law and are necessary." At this juncture, reference must be made to the Malaysian constitution, the fundamental law of the land, the grundnorm. Admittedly, the Constitution fails to explicitly mention FOI. We

are all too familiar with freedom of expression, association or freedom of religion but not FOL It is only of late that calls for FOI have resonated at a more signiticant level when in actual fact, FOI is an inalienable right which cannot be transgressed and violated. Right to information is, after all, a human right.

Notwithstanding the fact that is has not been defined in the constitution, there is no reason to dismiss the fact that FOI may

be implied or said to be defined within the purview of other rights, for instance freedom of speech.” Article 10 (1) of the Federal

Constitution of Malaysia states : 10. (1) Subject to Clanses (2),(3) and (4) — (a) every citizen has the right to freedom of speech

and expression; (b) all citizens have the right to assemble peaceably

and without amns; (c) all citizens have the right to form associations.

(3) Parliament may by law impose — (a) on the rights conferred by paragraph (a) of Claunse (1) such restrictions as it deems

20

FREEDOM OF INFORMATION IN MALAYSIA

necessary or expedient in the interest of the security of the Federation or any part thereof, Jreendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of conrt, defamation or incitement fo any offence; In the Singapore Dow Jones™ case, Chan |s dicta mentioned that the right to access of information is not part of a constitutional guarantee of freedom of speech. Farugi is of the

view that Malaysian courts would be inclined to accept this dicta. However, at present, there has yet to be a Malaysian ruling on this point.

It cannot be denied that FOI is still perceived to be ‘secondary’

to other rights. This is despite the fact that the UNDHR has called on “every individual and every organ of society to play its part in respecting andprotecting human rightsfor all’. In the circumstances, even private entities would have a duty to ensure they do not help governments in violating human rights. It is urged that in a democratic society, state authorities must be governed by the principle of maximum disclosure as this establishes the presumption that all information

should be accessible, subject to a restricted system of exceptions.”

Examining a Model In the name of ‘communitarian® spirit; on the basis of placing emphasis on rights along with responsibilities, the purported Malaysian way has always been to favour restriction over freedom.

Against Deprivation of Truth

24

Even our constitution was drafted in such a way that with every freedom, there exist clear restrictions. As the Malaysian body of

jurisprudence is largely imported and modeled from the UK, it is apt to brietly examine the UK Freedom of Information Act 2000, (‘FOIA’) which was enacted on 30th November 2000* and enforced only two years ago, in January 2005; to make provision

for the disclosure of information held by public authorities or by persons providing services for them and to amend the Data Protection Act 1998 and the Public Records Act 1958.** In short,

it attempts to enable a general right of access to all types of recorded information® held by public authorities and to also set out exemptions from that right. Therefore, the requestor of the

information shall be entitled to be informed® in writing by the public authority whether it holds information of the description specified in the request, and to have that information

communicated to him.”” The application of the FOIA extends to a huge number of public deparments™®. Albeit the public authority is duty bound to provide advice and assistance™, the request may

possibly result in non-disclosure of information™ due to various reasons. It is argued that the FOIA has failed to meet the demands of the UK citizen on these grounds : 1. Extensive Exemptions

The incredible width of exemptions™ which are applicable under the FOIA seems to have converted it into a statute of exemptions rather than of right. Part II of the FOIA, “outlined the class of information which is exempted from disclosure. From an initial

7 in the White Paper®, the list has expanded to a staggering 23", out of which, 8 are absolute exemptions in the FOIA.The

b

o

FREEDOM OF INFORMATION IN MALAYSIA

exemptions include areas deemed sensitive such as national security”, defence, international relations’ and others™. Where

an exemption arises™, it may either be absolute™ or qualified ie. subject to whether the public interest in maintaining that the exclusion of the duty to confirm or outwieghs the public interest in disclosing whether the authority holds the information.* At this juncture, it must be highlighted that there are equally

sensitive areas* which are considered to be of class exemptions and hence, not categorically exempted from disclosure. This begs the question of whether “absolute exemptions” are in fact

necessary or that a public interest test would suffice. If security is regarded as the quintessential function of the state* then why are matters on national security™ not exempted absolutely, as opposed to matters on relations within the United Kingdom for example,

where absolute exemption applies?® It is submitted that if an area such as international relations™is not absolutely exempted from disclosure, then there is no need to have absolute exemption, but mere exemption with a public interest test. Exemptions ought to

be narrowly drawn and apply only when there is harm to disclosure but even if it may cause harm, it still ought to be disclosed if there exists an overriding public interest.”’ 2. Exclusion of Vital Information

Critics™ particularly take issue with the exemptions in 3 categories of the FOIA, namely the investigation exemption (s.30), the exemption for Policy Formulation (s.35); the exemption for Information likely to prejudice the effective conduct of public affairs (s.36). These exemptions demonstrate that virtually all information relating to the formulation of government policy escapes public scrutiny and is exempted. Therefore, even

Against Deprivation of Truth

investigations

23

concerning health policies, transport and

environment, would also be excluded®, therefore repeating

possibility of future disasters. This mundane but highly relevant information of everyday public concern will not be accessible to the citizen when it is apparent that the benefits of disclosure would outweigh the alleged prejudice. The inclusion of a a “catch-allharm-based” exemption in section 36" is another stumbling-block for the concerned citizen as the official’s view that disclosure is

prejudicial® cannot be challenged. 3. Public Interest vs. Substantial Harm

In order to decide whether disclosure is warranted the UK model adopts a rather perplexing public interest test for disclosure, which

is far more rigid than an earlier test of “substantial harm™. The

test which is applicable for information under a qualified exemption is that the information shall remain undisclosed if the public authority is of the view in all the circumstances of the case that

the public interest in maintaining the exemption far outweighs the

public interest in disclosing the information™. Johnson is of the view that as there is no statutory detinition of public interest, there remains to be no presumption in favour of disclosure.’ It is submitted that, Section 35(4) of the FOIA™, if viewed appropriately, may in fact be construed as tilting the balance in favour of disclosure, especially if assuming a balance exists However, that of course, is rarely the case. Further, with $.53, it is the minister that holds the key to defining what tantamounts to “public interest.”

According to the British Attitude Social Survey, only 16% of people in 2000 trusted governments of any party to put national interest above political party concern™. Arguably, any non-

24

FREEDOM OF INFORMATION IN MALAYSIA

disclosure on grounds of public interest would be unlikely to survive without public scepticism and criticism. 4. Difficult reconciliation with Privacy Rights. [t is undeniably important to protect third parties from breach of confidence or invasion of privacy. Section 40(1) bars absoulutely any information which constitutes personal data of which the applicant 1s the data subject. Hence, as the request is subject to the DPA 1998, third party personal data will not be disclosed in

response to subject access requests. Therein lies the conflict between freedom of information and the right to privacy as enshrined under the Data Protection Act 1998. The FOIA does not disturb the protection of individual privacy

which is conferred by the DPA 1998. However, it is doubted whether the balance has been appropriately drawn. The conferment of a a qualified rather than an absolute exemption in cases where complying with an FOIA 2000 request would infringe data protection principles, clearly indicates the heavy burden of striking the explicit balance between FOI and privacy. In relation to this, Robertson however cautioned that as the right to appeal to court (except on questions of law) has been denied,

the Information Commissioner must have much difficulty to maintain the integrity of her position, as she must adjudicate not

only between the government and a requestor but also between the government, an applicant and a third party.”” It is submitted that inasmuch as it is difficult to decide and maintain integrity at the same time, the Information Commissioner’s role may be viewed positively as litigation does result in further expense and delay. The over-legalistic US approach is not recommended as it may

Against Deprivation of Truth

25

result to cases being protracted in courts, the longest being 11

years™.

In the event that the duty to confirm or denv does not arise in relation to any information, the effect of that provision is that where either the provision confers absolute exemption or in all

the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the

information. ¥ The Campaign for Freedom of Information suggested that, in order for the Data Protection Act to be made

in line with the Freedom of Information Act,

a) subject access applicants should be entitled to know when information has been withheld from them and on what grounds.

b) applicants should be able to appeal to the Information Tribunal against decisions of the Information Commissioner. ¢) in deciding whether to disclose information about another

identifiable individual, data controllers shold be required to take account of any harm that could be done by disclosing or witholding the information.” 5. Time Factor (i) Implementation In retrospect, the FOIA has been enforced for two vears since

January 2005. When the act was first implemented, it was done in phases.”’ due to its apparent complexity. Each class of authority would first produce a publication scheme and then, right to access.”” The initial concern that surfaced prior to the enforcement

26

FREEDOM OF INFORMATION IN MALAYSIA

is the fact that the government deliberately attempted to delay

the FOIA’s implementation® after the Lord Chancellor’s plan for an carlier time-table was overruled and replaced by a phase in publications scheme for the next 2-3 years and then, a “big-bang” approach where right of access is enforced simultaneously.”* On a positive note however, specific aspects of implementation did contribute to a high volume of requests and complaints in the

first year.® (i1) Processing Requests In relation to time, the Act has also provided a 20-day deadline

for authorities to respond to requests. Despite such provision, a

review conducted after the first anniversary of the Act’s implementation demonstrated that there 1s a clear tailure to abide L0606 by the guideline®. 6. Public Authority-wide and amendable The FOIA is positive in that it embraced a wide definition of the public authority to include local government, the health service,

quangos and public utitlites®”. Public authority includes any body which, any other person who, or the holder of any oftice which is listed under Schedule 1, or is designated by order under Section

5% or is a publicly-owned company as defined under section 6. However, the party considered a “public authority” may ecasily

be amended. It is interesting to note that the Secretary of State may by order amend Schedule 1 if the said party satisfied the conditions set out in Sections 4(2) and (3)."” Theretore, a company, which deals in arms and is initially

unprotected from disclosure, may, by virtue of fulfilling the said

Against Deprivation of Truth

27

conditions and a subsequent order, be protected and exempted

from disclosure. Furthermore, should it fail to meet the requisites of Section 4(1), Section 5, still enables the public authority to

designate by order, a party as public authority if it appears to be exercising functions of public nature or is providing under a

contract made with a public authority.™

At close scrutiny, Section 3(2) could arguably mean that third parties with whom the said public authority has an interest in,

may also be “protected”, if the information is held by the authority on behalf of the third party or the third party holds the information for the said authority. It is submitted that these provisions, may be open to abuse. 7. Limited Information

s.1(4) states that the information, which the applicant is to be informed or communicated to is the information in question, held

at the tme when the request is received. Ideally, the FOIA would not only be retrospective but provide access to all records,

including that protected under the Public Records Act 1938 and 1967."

It must also be pointed out that although .19 of the FOIA requires public authority to have publication schemes, contents of the scheme was not a criteria for approval”. It is submitted that there would be no guidance as to the kind of information received. 8. Imposition of Fees The cost in applving for disclosure in fact undermine its utility ey

There is apparently no distinction on fees between the frec

1T e b & L] AL

28

FREEDOM OF INFORMATION IN MALAYSIA

user or corporate entity or individual requestor. It is submitted that fees ought to apply only after a generous amount of time has been spent and no earlier charge imposed. In the US, fees are

waived for requests made in public interest™. It is unknown how

many requestors are turned away after finding out about the fees. Sadly, there is temptation to over-charge, when it is allowed.™ However, the intial payment would not be as much as the cost of

rejection, as one may then brave through the 4-tier appeal process and predictably entail risk, expense and further delay. 9.

Limited

and

difficult role of

the

Information

Commissioner

The role to be played by the Information Commissioner is a

positive change from the Ombudsman who can only recommend disclosure but not to impose it. The Information Commissioner is “assumed” to have adequate information on government to be able to decide whether disclosure of a particular information will

harm the process of deliberation or that disclosure would not be in the public interest. The FOIA is silent on whether she will take an inquisitorial

approach by consulting Ministers or government officers. If that is the case, then great doubt may be cast on

her role as an

“independent adjudicator”. On the other hand, would the Information Commisioner be effective by exercising a purely adjudicatory function in an adversarial sort of system where decision is arrived at, based on information presented by both

sides only? Further, the role of the Information Commissioner, may be limited as long as the right to an executive override remains, as discussed below.

Against Deprivation of Truth

29

The role of the Information Commissioner has been an important one. In the first year of the act (2005), a total of 2,385

complaints alone was received”. Appeals of the Commissioner’s decisions are made to the Information Tribunal and appeals of the Tribunal’s decisions™ on points of law are made to the High Court,

10. Prejudicial Information — vague, wide and unspecified [nformation is exempted if it is considered to be likely to “prejudice” relations between any administraton in the United Kingdom and any other such administration in the United Kingdom and any other such administration. Information which would be likely to prejudice the economic interest or the financial interest of any administration in the United Kingdom is equally exempted™. In the past, even vital information on for instance

the Matrix Churchill Trial and BSE were undisclosed as they were said to be “prejudicial”.* 11. Executive Override - the Ministerial Veto

The ominous provision for ministerial veto™ is another great

setback. Although there exists a right to appeal against the refusal to the Information Commissioner, her decision is subjected to a further appeal to the Information Tribunal. Ultimately, an

“accountable person” may even issue a certificate to veto the decision of the Information Commissioner on her definition of

public interest. The rationale of this allowance is probably because a Minister is said to better understand the public interest and is subjected to

ministerial responsibilty and is therefore accountable to the

30

FREEDOM OF INFORMATION IN MALAYSIA

Parliament for the exercise of such political judgment. It is submitted that this rationale is flawed in that it assumes a very

idealisitc notion of a truly honest government. It is submitted that as the Act already has provisions for a 4-Tier Appeal System®,

it is inconceivable why this provision needs to remain, other than to reinforce the notion that ministers still wish to “hide” behind their secret cloaks. Further, as the Information Commissioner, is

apolitical, there would be less likelihood for the definition of “public interest” to be marred by a political, rather than policy-

based interpretation. Nevertheless, the override is only to be issued in “exceptional”’cases and it can only be issued by a Cabinet Minister or by the Attorney-General and as soon as practicable, a copy of the certificate must be laid before the Parliament. It is unfortunate to note that in recent cases, the block from disclosure was clearly to avoid political embarassment.™For instance, ministerial vetos

were issued to avoid ministerial declarations of conflict of

interest™ and details of gifts given to ministers.* 12. No positive right to access At this juncture, it is also interesting to note that inasmuch as Article 10 does confer the right to freedom of information, as it has only been interpreted as prohibiting the public bodies from obstructing the dissemination of information as opposed to compelling the public authority into communicating such information. It said to only refer to the right to receive and impart information and not

to confer a positive right of access to information.”’ It seems that freedom of information in the genuine sense, cannot be found in ECHR and also surprisingly, in the Act which

is called the Freedom of Information Act.

Against Deprivation of Truth

i

13. The U-Turn

There 1s no duty to disclose facts and research behind policy

decisions. This omission in the FOIA is a reversal of the Croham Directive (1978) and the Code of Practice (1993 & 1997 ). Another clear omission from the Code ofPractice is the duty to give reasons for administrative decisions. What then remains is

mere access to information and not records which are kept. The

non-availability of accident investigation reports and other records or information curtently available only reinforces the argument

that the FOIA is taking a u-turn in the development of “freedom of information” and not a step forward. The FOIA examined above is unfortunately, not too clear on rights but places emphasis on exemptions and discretionary duties. In essence, there is much to avoid, rather than adopt, insofar as

the UK Model is concerned. Exemptions are indeed necessary, but, it must not be at the expense of diluting the effectiveness of the statute.

Momentum of FOI Movement

In Malaysia, the greater call for transparency and political accountability which resonated through the 1998 Reformasi movement™ evidently, is still echoed to this day. However, it is only recently that this call has surfaced in the form of a movement for FOI, especially with the Formation of the Freedom of

Information Coalition in Malaysia, which has thus far, organized several awareness programmes including celebrations in conjunction with the International Rights to Know Day™. In severe lack of awareness, FOI must be ‘popularized’ as a right which is

32

FREEDOM OF INFORMATION IN MALAYSIA

equally as important as other rights and freedoms claimed by the people. Knowing is believing. No doubt, we have yet to even

pass the first hurdle of allowing the people to know, what more understand the FOI and the ancillary issues attached to this right. FOI as a movement has gained momentum mostly in developed nations. Developing nations are slowly clambering on the bandwagon calling tor FOI as such laws are not of priority when other more ‘pressing’ issues seem to take precedence. It is indeed

unfortunate that reform must work on the basis of so-called priorities. It is argued that societal transformation or reform

agenda if any must be a concerted effort which is holistic in nature.

There is no denial that opening up the government and maintaining the desired level of confidentiality and secrecy in democratic governance is a delicate and difficult balance to be struck. However, that is no reason to disregard FOI. The

government must realise that openness has great advantages as unnecessary secrecy leads to arrogance and defective policy

decisions. As noted earlier, greater FOI results in greater transparency

and political accountability”. The success of FOI would naturally help to resolve core issues relating to governance and democracy. It is time to pull away the cloak of secrecy, and reveal the truth for all to see.

Against Deprivation of Truth

33

Notes

UK White Paper on Open Government, Cm 2290 (1 093), para 1.1.

As at 4-7-2006; www.freedomofinfo.org/countries/

A

Suhakam Annual Report 2004,p.17-18.

26th September 2005, wwm.malaysiakini.com s.2, Official Secrets Act 1972; Official Secrets (Amendment)

6

Act 1986 (Act 660/19806). per KN Segara ], Mohammad Ezam Mobd Nor r. PP [2004] 2GET A9 Article 10(2)(4),149 of the Federal Constitution, Printing Presses and Publications Act 1984, Internal Security Act

1960, Sedition Act 1949. charged, was imprisoned for two years but subsequently acquitted for disclosing papers revealing recommendations made to prosecute two senior ministers for corruption. Mohamad Ezam Mohd Nor, “1n Search for Freedom to Receive and Impart Information”, Bar Council Forum, 22nd April 10 11

2006. [1979] 2. MLjJ 37 Austin, R., “Freedom of Information: The Constitutional mpact”,

in Jowell (Ed.), The Changing Constitution, 4th Ed., Oxford University Press, p.319. Introduced largely through the Malaysia Incorporated Policy

an example would be the case of Public Prosecutor v. Lim Kit Siang [1979] 2 MLJ 37. see also decision of the Inter-American Court of Human Rights: “access to information held by the State...permits

34

FREEDOM OF INFORMATION IN MALAYSIA

participation in public governance”, paras 84-86; Caso Claude Reyes y otros vs. Chile, 19th September 2006, Serie C No.151. 15

includes corporate and profit-making bodies, see Auntronic AG vs. Switzerland, 22/05/198/A178, European Court

of Human Rights. 16

thid.; In _Autronic AG, the ECHR found that there was a

violation of Article 10 when the granting of permission

to receive uncoded television broadcast for general use from a telecommunications satellite had been made subject

to the consent of the broadcasting state. L

Article 12, UDHR : “no one shall be subjected to arbitrary interference with bis privacy, family, home or correspondence, nor fo

attacks upon his hononr and reputation.” 18

19

(1) For the respect of the rights or reputation of others; (i) For the protection of national security or public order, or of public order, or of public health or morals; and (iii) Any propaganda for war shall be prohibited by law. see Article 19(1)(a) of the Indian Constitution — the public’s right to know is implicit in the right to speech and expression. see also Bennet Coleman at AIR [1973] SC 107, para 45 where freedom of the press includes the right to read.

20 21

Dow Jones Publishing v. AG [1989] 2 ML] 385 Shad Saleem Faruqi, “Free Speech and the Constitution”, [1992] 4 CLJ xiv

22

see also Caso Clauda Reyes y Otros vs. Chile,19-9-2006 Serie C No.151, para 92, decision of the Inter-American Court

23 24

of Human Rights. see Preamble, Freedom of Information Act 2000.

thid.

Against Deprivation of Truth

25

26 2 28

35

see s.84 Freedom of Information Act 2000 - “information”’ (subject to ss. 51(8) and 75(2)) means information recorded in any form. The Public Authority shall have a duty to confirm or deny the requestor — s.1(4), Freedom of Information Act 2000. s.1(a)(b), Freedom of Information Act 2000.

www.dca.gov.uk/foi/publications/scheme.htm#part2; see Schedule I, Freedom of Information Act 2000,

29 30 31

33

34

s.16, Freedom of Information Act 2000. s.17, Freedom of Information Act 2000,

see Part 11- Exempt Information , Freedom of Information Act 2000. see also s.2(3)(a)-(f), Freedom of Information Act 2000. “Your Right to Know-The Government’s Proposals for a Freedom of Information Act” (White Paper) Cm 3818, (1997), HMSO. Part II-Exempt Information, Freedom of Information Act

2000. 36 o 38 39 40 41

43

44 45

s.24, Freedom of Information Act 2000. 5.20, Freedom of Information Act 2000.

s.27, Freedom of Information Act 2000. see also ss. 21-44, Freedom of Information Act 2000. supra, n.31.

5. 2(1)(@); 209)

s.2(1)(b); 22,24,26,27,28,29,30,31,33,35,37,38,39,42,43, Freedom of Information Act 2000. see also s. 22,24,26 Freedom of Information Act 2000. Birkinshaw, P. “Freedom of Information”, Butterworths

(3rd ed.), 2001, p.30. s. 24 s. 28

36

46 47

FREEDOM OF INFORMATION IN MALAYSIA

SHLAAT Frankel, M.”Freedom of Information: Some International

Characteristics”, paper given at the seminar ““Transparency in. Butope”)

15-16 Pebruary 2001, 4p.35" http://

www.cfoi.org.uk Johnson, N.”The F'reedom of Information Act 2000",New

[Law Journal, Vol.151(N0.6692)2001, p.1030; see also http:/ /www.charter88.org.uk.

49 50

Johnson, N.”The Freedom of Information Act 2000"

n (L)

48

Law Journal, Vol.151(N0.6692), 2001, p.1030 (c) would otherwise prejudice, or would likely to otherwise to prejudice, the etfective conduct ot public affairs. see T.Kitchener vs. The Information Comnussioner & Derby City

see .35(3), Freedom of Information Act 2000.

New

Councily 20-12-2006; EA/2006/0044 on application of

%

public interest test by Information Tribunal-public interest lies in maintaining exemption of non-disclosure of Barrister’s advice on grounds of legal professional privilege. s.2(1)(b) Freedom of Information Act 2000. Johnson, N.”The Freedom of Information Act 2000",New

n @ 5

Law Journal, Vol.151(No0.6692), 2001, p.1030

$.35(4) In making any determination required by section 2(1)(b) or (2)(b) in relation to information which is exempt information by virtue of subsection (1)(a), regard shall be had to the particular public interest in the disclosure of factual information which has

been used, or is intended to be used, to provide an informed backgronnd to decision-taking. 56

Frankel, M.”A window on the Mind of No.10", The

Guardian, 29.8.2003 taken from http://www.cfoi.orguk/ gdnarticle290803.html; Frankel, M. “Freedom of

Against Deprivation of Truth

37

Information”, Progress, Oct/Nov. 2002 — http://

www,cfoi.org.uk/progressarticle.html.” Robertson, K.G.,”Secrecy and Open Government”, Macmillan Press Ltd., Hampshire,1999, p.155. Gulf Oil v. Brock 778 F 2d 834 DDC (1985)

. 2(1)@)(b) 60

01

http://www.cfoi.org.uk ;Campaign for Freedom of Information, Letter to Graham Sutton of Lord

Chancellor’s Department- “Data Protection 1998. Consultation Paper on Subject Access”, 28.3.2003. Johnson, N.’The Freedom of Information Act 2000", New Law Journal, Vol.151,N0.6992, p.1030.

5.19, Freedom of Information Act 2000 requires every public authority to adopt and maintain a scheme which relates to the publication of information by the authority and is approved by the Commissioner, specifying classes of information which it publishes or intends to publish,

specifying how the information is published and whiat if

63

any, charges apply. Evans, R. &anor., “Blair’s ‘big bang’ theory to delay

04

freedom act”, The Guardian, 26.10.2001. see Evidence to the House of Commons Home Affairs Select Committee, 16.10.2001.

65

some particular aspects of the Act include the fact that it

was implemented across all public bodies simultaneously, is fully retrospective, there is no need to cite the Act in an

information request and there is no fee for making a request,for making a complaint to the Information

Commissioner or for an appeal to the Information

Tribunal; see http://www.publications.parliament.uk/pa/ c¢cm/200506/cmselect/cmconst/991/99104.htm

38

66 67 68

FREEDOM OF INFORMATION IN MALAYSIA

less than 50% compliance shown — Evans, Rob “For Your Information”, The Guardian,4-1-2006 see Schedule 1, Chapter 36, 2000.

subject to s. 4(4) —if either the first or the second condition above ceases to be satisfied as respects any body or office which is listed in Part VI or VII of Schedule I, that body

69

or the holder of that office shall cease to be a public authority by virtue of that entry in question. s.4(2) The first condition is that the body or oftice — (a) is established by virtue of Her Majesty’s prerogative or by an enactment or by subordinate legislation, or (b) is established in any other way by a Minister of the Crown in his capacity as Minister, by a government

department or by the National Assembly for Wales. s.4(3) The second condition is(a) in the case of a body, that the body is wholly or partly

constituted by appointment made by the Crown, by a Minister of the Crown, by a government department or by the National Assembly for Wales, or

(b) in the caase of an office, that appointments to the office are made by the Crown, by a Minidter of the Crown, by a government department or by the National Assembly for

Wales. 70 71

5.5(1)(2)(b)

This is not the case as the government may hold on to the

public records for 30 years, or more — s.3(4) and 5(1), Public Records Act 1958. 12 13

supra, n.01.

Information Commissioner’s Consultation Paper on Publication Schemes, p.23-24.; http://www.cfoi.org.uk/ pubschresponse.pd f,

Against Deprivation of Truth

74 75

39

supra, n. 57, p. 152,

Campaign for Freedom of Information “Freedom of

Information-Key Issues”,p.20; http:// www.cfoi.org.uk 76

In 1996, the Ministry of Agriculture, Fisheries and Food

requested for £6,500 for releasing the names and addresses

of 26 rendering and incinerating plants whose handling of cattle carcasses had be found to fall short of the required BSE standard — MAFF letter to Alan Watson, 13.12.1996 ; The Norhtern European Nuclear Information Group was

asked to pay £325 in advance for questions on the Dounreay Nuclear Plant; taken from Campaign for

Freedom of Information “Freedom of [nformation-Key Issues™,p.23; http://www.cfoi.org.uk 77

http:/ /www. freedominfo.org/documents/

global_survey2006.doc Information

Tribunal

Decisions,

http://

WWWw.1n fornmtiontribunal.g()\'. uk/our decisions/

our_decisions.htm 13 80 81

S.29(1)L2). see Scott report on the collapse of the Matix Churchill Trial. ( Report of the inquiry into the export of defence

equipment and dual use goods to Iraq and related prosecutions HC 115 (1995-1996) Vols 1-V ); Bovine Spongirom Enxephalopathy Report.(HC 887 Vols [-X V]I (1999-2000) The dissatistied applicant may appeal to the following order : [. the internal complaints system of the authority 2. the Information Commissioner.

40

FREEDOM OF INFORMATION IN MALAYSIA

3. the Information Tribunal 4. the Courts (on point of law) 34

Frankel, M.”Freedom of Information Act will have teeth

only if it is seen as a symbol of honesty”, Financial Times, 9.9.2003; http:/ /www.cfoi.orguk/ftltr090903.html; see also

http://www.ombusman.org.uk/pca/document/aoi03nj/ index.htm - Report of the Parliamentary Ombudsman — ”Access to Official Information Investigations™, Nov.2002-

86 87

June 2003 (HC 951) ibid.

Perley v. Secretary of State for Environment, Food and Rural Affairs, [2002] EWHC 371; Howard v. Secretary of State fro Health [2002] EWHC 3906.

88

Movement for reform which was initiated in 1998, after

the sacking of the former Deputy Prime Minister of Malaysia, Datuk Sert Anwar Ibrahim. 89

Sun2 surf, 27-9-2006; http:/www.sun2surf.com/

article.cfm?id=15614 The UK Information Commissioner’s Office issued a report in January 2006, which looked at the impact of FOT, citing benefits such as greqter transparency as an indication of success at http://www.ico.gov, 1/documents

library/corporate/research and reports/foi/one vear on research findings.pdf

Appendix

OSA — A Shelter for the Corrupt*

ome years ago, 1 was appointed the Political Secretary to the then Minister of Finance, Dato’ Seri Anwar Ibrahim.

As I was not even 30 years old, this made me the youngest Political Secretary at that time. Though I was chosen by the Finance

Minister, my appointment was made by the Prime Minister. My swearing-in was in the presence of the Prime Minister and witnessed by the Chief Secretary to the Government. Needless to say, | felt honoured to be oftered an opportunity to serve the government in a position of great importance at such a tender age.

* Mohamad Ezam Mohd Nor s statement to the Petaling Jaya Sessions Court after his conviction under the Offiicial Secrets Act

(OSA) on 7" August 2002.

2

FREEDOM OF INFORMATION IN MALAYSIA

A Political Secretary is required to attend Post-Cabinet meetings which are chaired by the Minister and attended by all senior officers

of his Ministry. This is regarded as the second most important meeting after the Cabinet meetings. It is convened right after the weekly Cabinet Meetings on every Wednesday. Towards the end of 1997, the country’s economy faced a downturn. Invanably, the weekly Post-Cabinet meetings became

a batdeground between those who wanted to fulfil the trust placed im them and those who wanted to raid the naton’s coffers. The Finance Minister and senior government officers, dedicated to upholding the peoples trust, resisted attempts by the Prnme Minister and his cronies to plunder the naton’s wealth to save their own necks. Those with interests in Perwaja, MAS, Renong, the Bakun Hydro Project, the Monorail project, Konsortium Perkapalan, and so on, all wanted their companies and projects

salvaged through the use of funds belonging to the EPF, the Pensions Fund, Petronas, Pilerims” Fund (LTH), and the Armed

Forces Tirust Fund (LTAT), which, in the end, would have all been We 2ll know the outcome of this turmotl - the Mimister who tried to protect the people’s interest was sacked. 1 am fammiliar wiith the details because, one week before the event, Daro” Sen

Amwar Ibrahim told me, ‘Be prepared to face any eventuwality. I am perceived 25 an obstade. They want me removed from the govermment. 1 cannot compromuise.” This event is extremely sionificant, not only for me personally,

but: forr the entire mation. I was fated to be in a position to witness witvatt rezllly happened. It was not a struggle for my personal interest. It was a confrontztion between responsibility and transgression,

between trust and cormuption. That was when [ resolved to folllow my comscience and oppose cotmupmon and wrongdotng that was

OS:A — A Shelter for the Corrupt

3

being committed before my very eves. Today, I stand before you to continue upholding this principle and maintzin my faithin what

I am fighting for. My resolution to continue to OppoOse corruption can be summed up in the words of a distinguished writer, “In an era of great challenge, to strive and struggle to uphold and promote trustworthiness and selflessness’.

Your Honour,

Guided by my resolution and faith, I continued my struggle by joining a legally registered political party, the National Justice Party (keADILan). I made use of all avenues zallowed under the Consttution to inform the people of the truth. Through political speeches, I exposedin detail all the transgressions that had occurred — how the naton’s wealth had been qmmdmfigfl to salvage cronies who were in dire straits. The people have a2 right to know the truth as this affects their rights and future. Defimitely, the mainstream media was not going to give coverage to my

revelations. They instead attacked me, declaring me a traitor, 2 terromist and an instigator out to incite the people. Their objective was to smear my reputation and destroy My

credibilityin an attempt to cast doubts on my revelations. But they failed. More and more people became curious to know amd attended my rallies. They tried to close 2ll avenues for me to reveal the truth, to the extent that the police even disrupted meetimgs held in private houses on allegations that what I said was insidiows and caused disunity. If this is so, why was it no legal action was taken against me on these grounds? There should not have heem any problems for them to sue or charge me since what [ had

revealed were very specific and detailed. 1 stated cleardy the

4

FREEDOM OF INFORMATION IN MALAYSIA

projects, names of companies, names of family members and cronies involved, names of the public funds and the amounts that were plundered.

I was determined to fully exploit all legal avenues in accordance with the Constitution. In this spirit, I made numerous police reports so that investigations could be initiated by the authorities on the various allegations of corruption and abuse of power. I duly complied when summoned to the police station for my statement to be recorded, which sometimes took several hours. I gave my

full cooperation to the police. But i was taken for a ride. It was all a mere deception, as the exercise was merely to record my statement in order to give impression that action was being taken

on my police reports. Never did the police summon those parties

implicated in my police reports for their statements to be recorded as well, specifically because the personalities implicated were the Prime Minister, Deputy Prime Minister, Cabinet Ministers, and their family members and cronies. Most unfortunate is the fact that my reports against these individuals resulted in me be branded an enemy of the state. I am not an enemy of the state. I am rather an enemy of those

corrupt leaders who transgressed. And, for this, I was arrested and detained in the police lockup on trumped-up charges and, finally, when they could no longer create charges against me, I was

detained under the Internal Security Act on the flimsy and preposterous excuse that I am a threat to national security. The real reason for my detention is to ensure I can no longer come

forward to continue making police reports. Reports which would threaten the position of the corrupt leaders, not the security of the state. The OSA requires that a person who comes into possession of

any classified document must surrender it to the police. In other

o

OSA — A Shelter for the Corrupt

words, if 1 wanted to avoid being arrested, 1 should have surrendered the documents 1 was holding to the police. But the question was what sort of police force are we talking about? A police force that upholds the law and the principle of justice or a police force that allows itself to be used as a tool of the politicians and 1s loval to the corrupt powers-that-be? Dozens of police reports have already been made that implicate the powers-that-be, made not only by me but by my comrades as well. However, all of them have come to naught.

For example, one of the police reports involves a statement made by the previous Director ot the Anti-Corruption Agency, Dato’

Shafie Yahya, implicating the Prime Minister. Police reports on this was filed by thousands of Malaysians at every major Police

Stations in every state all over the country. But no action was taken. Instead, when one police report was made against me and,

immediate action taken. There was one incident where the UMNO Youth made a police report against me and, in a mere two hours, the police sprang into action, They raided and ransacked my house, in my absence and in front of my children and my entire family, on the guise of looking

for evidence. That same day, I was arrested and thrown into a police lockup on the eve ofa very important Muslim festival, Eid Adha, when I should be at home with my tamily. Is this not reason

enough for me to doubt and question the professionalism and sincerity of the Malaysian police force? Today, the Malaysian courts have reinforced this belief that

the police are but instruments to protect a corrupt and authoritarian regime. On 9 July 1999, another police report was made against the Minister of International Trade, Dato’ Seri Rafidah Aziz, and various other Cabinet Ministers by no less than the one-time Minister of Finance and Deputy Prime Minister,

6

FREEDOM OF INFORMATION IN MALAYSIA

Dato’ Sert Anwar Ibrahim. The basis of the police case against me refers to the same documents that formed the foundation of Dato Sert Anwar’s police report. Why has there been no action on his report? The police report against me was made by a police otficer four months after Dato Seri Anwar’s police report was

made. While the case against me has been wrapped up, the investigation against these corrupt leaders has not even commenced yet. Recently, the Deputy Inspector General of Police, Tan Sri Jamil Johari, made a statement guaranteeing Malaysians that investigations would be instituted within seven days of a police report being made. In that same statement, Tan Sri Jamil atfirmed the rights of the person who made the report to be informed of the progress of the investigations. I implore Tan Sri Jamil to amend his statement lest he be perceived as a fraud. Instead, he should

have said ‘this would only apply to police reports that do not implicate government leaders, especially the Prime Minister, Deputy Prime Minister, Cabinet Ministers, and their cronies and

family members. As tools ot the corrupt powers-that-be, invariably the police will not entertain reports of corruption and transgression made against these people. Dato’ Rais Yatim, a Cabinet Minister, also made a statement

aimed at damage control. He urged that investigations should be instituted on all police reports made regardless of whom they may implicate. He also once announced the setting up ot a

unit within his Ministry to monitor all police reports that have not been investigated within reasonable tme. But no action was taken after that. Dato” Rais should resign tor he has either lied to the public or 1s incapable of translating words into action.

OSA — A Shelter for the Corrupt

7

Your Honour,

Today I am being convicted. This court has declared me a criminal. If revealing the excesses and transgressions of corrupt leaders make me a criminal, then I am prepared to be convicted a thousand

times over and be declared a criminal. My only crime is to fulfil my moral obligation. This demonstrates my true conscience, demonstrates my abhorrence of corruption — more so when the acts are blatantly committed with absolutely no fear of retribution. [ am repulsed when I read the Anti-Corruption Agency reports on the various acts of corruption. Regretfully, not many have been privy to these reports. Even in this court, only the investigating officers, the prosecution and the defence counsel are permitted to view these reports other than Your Honour, presiding over

this case. Are they too not repulsed? I am certain all those with a soul and conscience would be equally repulsed. Certainly anyone would feel disgusted reading a report about a Minister that presides over a meeting approving millions of Ringeit worth of shares to her own son-in-law. Even more repulsive is to read the said Minister’s confession that she chaired the meeting, though she was aware of the criminal implications, on the instructions of the Prime Minister himself. The Prime Minister also instructed her to ensure that the same meeting allocated his own son with shares. The contents of these documents seem so shocking and disgraceful that we may think it can only be fake. Yet the present court proceedings confirm that they arc indeed authentic, since they were validated by the Attorney General’s Office for the purpose of this case against me. The Anti-Corruption Agency investigation report offers proof of acts of corruption and abuses of power by the two government leaders: Dato’ Seri Rafidah Aziz and Tan Sri Abdul Rahim Tamby

S

FREEDOM OF INFORMATION IN MALAYSIA

Chik. In the said investigation report, the ACA had recommended criminal proceedings against both the leaders and, in the same report; the Attorney General’s Chambers had supported the recommendation. The question now would be how can the individual who revealed the existence of these crimes face prosecution while the criminals still walk free? And how come one of those individuals is not only sull free, but is also still a Minister? How can she remain a Minister in that same Ministry that approved millions of Ringgit worth of shares to her own son-in-law again and again? This can only happen in a rotten state. He who exposes the

corruption and abuse of power is jailed while the transgressors remain free, remain Ministers, and the repeat the criminal acts. We should take cognizance of an episode a couple of years ago where a certain Deputy Prime Minister, who was determined to

break the network that protected corruption, personally tabled amendments to the anti-corruption law in Parliament and consequently was sacked and now languishes in prison. We must

be aware that, in this country, the one who will be imprisoned is the one who opposes corruption while the corrupt remains free on condition he or she is a political leader from the ruling party who sucks up to the boss. On that score we should not be surprised

with today’s judgment.

Your honour,

[ am not interested in disputing today’s court’s decision. From the beginning I was aware that my fight is not in this arena. The heart and soul of the case is not here. I fight in a larger arena. 1 fight to oppose corrupt leaders. I oppose those who abuse their

OSA — A Shelteforr the Corrupt

9

power and commit corruption and formulate laws to protect themselves against prosecution. This court does not have any option as the laws are such, leaving

very little room to dispense justice. The Official Secrets Acts was enacted by Parliament by corrupt leaders as a means to protect themselves. Citing grounds of ‘National Security’, they have closed all avenues for their acts of corruption to come to the attention

of the public. They hide behind titles of “TOP SECRET’, ‘CONFIDENTIAL’, ‘PRIVATE’, and ‘RESTRICTED’ to strike fear into the hearts of every government officer and administration statt member who is confronted with their despicable acts. The media, which is the prime bearer of information, is constantly

haunted by the fear of the Official Secrets Act hanging over their

heads. This is clearly visible in the actions of the journalists who were called as witnesses in this case. In 19806, this Act was amended to increase the stranglehold of the powers-that-be by making a jail sentence mandatory for whoever was bold enough to test the Act to its limit. The judiciary has no power to do anything about it other than convict anyone unfortunate enough to be caught with a document that is stamped ‘SECRET’. What the document

contains is not relevant. What is important is that the document has the word ‘SECRET’ stamped on it. This means there is no difference between toilet paper and a corruption report, as all

that matters is the word ‘SECRET’ stamped on it. I am not insulting the court. The ones who are insulting the court are the corrupt individuals who restrict the powers of the court. They enact laws to deny the court powers and to ensure that they

themselves remain in power and deny the public information about the crimes they have committed. Lincoln once said, ‘Let the people know the facts and the

country will be safe. If given the truth, they can be depended on

10

FREEDOM OF INFORMATION IN MALAYSIA

to meet any national crisis.” Lincoln is a leader who propagates, ‘I'm a firm believer in the people’. [t is too much for us to expect the same from the leaders of

this country who always blame the people. The people are the cause of the problem - cannot be trusted, susceptible to slander, lazy, forget easily, stupid, naive, extremist and half-witted. The

reality is, it is not the people, but the greedy leaders with insatiable lust, who are destroying this nation. Corrupt leaders do not have the moral conviction to formulate laws that uphold the principle of truth and justice. In the British Parliament, an Act that is called ‘Public Interest

Disclosure Act’ was formulated in the spirit ‘to encourage people to blow the whistle about malpractice and to ensure the authority respond by acting on the message rather than against the messenger’. This type of Act can never be introduced in the

present Malaysian Parliament because there is no political will to uphold the truth on the principle of justice and responsibility. Tan Sri Harun Hashim, founder and one-time head of the

Anti-Corruption Agency once said, “Corruption can only be prevented, even eradicated to a large extent, if there is political

will.”” In an address during a dinner organised by the Malaysia [nstitute of Management, he said, “In 1967, when I was appointed to establish the ACA, the PM Tunku Abdul Rahman, gave me a

free hand to prevent corruption from spreading in the country. [ was allowed to choose and pick ofticers tfor the agency from the public service and the police, and unlimited funds trom the treasury. There was no interference from the government in the workings of the agency. Even the Attorney-General was not allowed to interfere with prosecutions ot corruption cases. As it is now, under the new corruption law, the Director General has no Ieg;fl p()\\-'cr.”

OSA — A Shelterfor the Corrupt

117

Finally, he stated, “The eradication of corruption in the public and private sectors should be everybody’s concern. The corrupt should be looked upon as enemies of the public. We do not want corruption to be a way of life. The ACA should be independent, reporting directly to the Parliament’.

Your Honour,

My conviction today reinforces this fact. The documents that have been the basis of my conviction today justify the fear of the founder of the Anti-Corruption Agency. The ACA not only lacks

independence, but is shackled and stripped of all its powers. I was arrested for distributing the ACA investigation report on Datuk Seri Rafidah Aziz and Tan Sri Abd Rahim Tamby Chik. If anyone was to scrutinize the contents ot the report, it will be seen how thoroughly the investigation against them was conducted. The evidence was sound and specific information such as several

bank accounts under their names with millions of Ringgit deposited was exposed in great detail. The millions of shares allocated to them and properties worth millions of Ringgit owned by them were all listed in detail. All this was fruitless, because the final say lies in the hands of the Prime Minister. The ACA was reduced to a weapon for ensuring their continued political lovalty. If vou are loyal, no criminal proceedings are taken against you. Not only that, but

vou are also ensured of immunity. The investigation papers are stamped ‘SECRET” primarily to ensure no one knows about it. This is the foundation of the culture of impunity — ‘immune from prosecution’ central to the political clite of this nation. For that reason, they resort to corruption and abuse of power with

12

FREEDOM OF INFORMATION IN MALAYSIA

no boundaries and with no fear. I dare to say here that almost all the Cabinet Ministers in this country have skeletons in the closet that could open them to prosecution under charges of corruption and abuse of power. I take full responsibility for this allegation on condition the ACA is allowed to investigate and reveal its investigation to the public. Do not use the ‘SECRET’ stamp on any of the said investigation papers. Recently, another former Director of the Anti-Corruption Agency made a statement that confirms the existence of the culture of impunity. As a witness in the Dato’ Seri Anwar Ibrahim trial, Dato’ Shafie Yahya testified in the High Court that the Prime Minister had prevented him from proceeding with his investigation on a corruption case involving a senior government officer. This testimony is crucial as it came from a one-time Director of the Anti-Corruption Agency and was made in the High Court. The entire nation should be shocked by this revelation. The ACA, the ultimate body entrusted with the eradication of corruption, a fatal disease afflicting society and the nation, has been stripped of all its powers to act effectively and justly. My trial just reinforces this belief.

Serious efforts must be made to eradicate rampant corruption. Leaders who are steeped in corruption will not be able to reform society. Ibn Khaldun has classified such leaders such as decadent. They just cry crocodile tears at their party conventions but, in fact, as the ruling party, they can eradiate corruption without any need to cry in public, if only there 1s political will. Two years ago, we witnessed a political party in our neighbouring country, Thailand, which had the political will to

reform and eradiate corruption. The ruling Democratic Party then reformed the country to the point a National Counter-Corruption Commission was formed which was given wide powers to act

OSA — A Shelter for the Corrupt

15

against corruption. The world, subsequently witnessed how the Secretary General of the party himself was prosecuted. The Secretary General of UMNO, the ruling party in Malaysia, is immune from charges of corruption. It has been more than a year since a State Assemblyman made a police report against him with regard to abuse of power involving more than two billion

Ringgit worth of state wealth (timber) while he was the Chief Minister of Pahang. But, to date, nothing has come out of the police investigation on the matter. We are in the dark as to whether investigations have been initiated or completed. He is still a Minister and Secretary General of the party. In fact, recently, he was the one who announced the succession plans of the present Prime Minister. Are we still in any doubt as to what sort of country we are living in?

Your Honour, Allow me to stress here that, though I am convicted, my stand

will not waver nor will my faith. I am being convicted today not on allegations that I revealed government secrets that compromise the security of this nation. I am not a traitor. Rather, I wish to

save the nation. I acted according to my principles and belief that corruption and abuse of power will result in the destruction of

the nation. I acted with a clear conscience to expose the greed of the powers- that-be.

I obey Allah’s command as stated in the Quran, chapter 59, Al-Hasyr, verse 7, translated by Abdullah Yusuf Ali as follows: that it (wealth) may not (merely) mafke a circuit between the wealthy

antong you.

14

FREEDOM OF INFORMATION IN MALAYSIA

Our history, as documented in the ‘History of the Malays’ or Sulalat-al-Salatin, teaches us much. There are numerous episodes related in it about the destruction of morals of the powers-thatbe as a result of decadence, untl the phrase ‘insanely rich’ was coined. Wang Ann Shih, a Chinese philosopher and reformist, regards this as ‘a symptom of extreme wickedness of the people and tlawed laws’. I am sure many have heard Gandhi said that human greed unnaturally restricts the richness of the world’s resources. In the loneliness of the Kamunting Detention Camp, books

have become my closest companion. One such novel written by Hamka entitled “Tuan Direktur’ (Director Sir) is a story about the greed of the powers-that-be and their cronies. But what really

touched my heart is one of the sayings of Prophet Muhammad narrated by Tarmizi on the cover of the novel, “Verily, every community will be tested and the test for my followers is wealth.” Today I have fulfilled my moral obligation. As a political leader, I am merely fulfilling my responsibility to the people and the nation. As one of God’s creations, I fulfil my obligation as required of me. Islam stipulates the freedom of expression — hurriyyat albayan or hurriyyat al-mu’aradah — as not just about the right of the individual but his duty to uphold truth. I have faith in the strength of truth. I do not doubt one bit that truth will one day prevail and history will vindicate me.

[ am also confident that whatever happens today will strengthen the resolve of my colleagues, in particular the youth, the younger generation of this nation, to continue with the struggle based on

their conscience in opposing the rampant corruption and abuse of power that is strangling this nation. The younger generation must ensure that the culture of impunity amongst the political

elite is eradicated within their generation. We really have no other

OSA — A Shelter for the Corrupt

13

alternative. In this era of globalization, the culture of impunity

will destroy the nation if not eradicated now.

Your Honour,

I have spent the one whole year in incarceration so I know what

life behind bars is like. I am only too aware of the suffering especially of my family and my children who are still so young. But their suffering will not be in vain. I can only pray that when they grow up they will understand the meaning of this sacrifice. Why I continue to defend my faith, and why I continue to struggle.

From court to court, from lockup to lockup, and from jail cell to jail cell, it 1s only for the future of my children and for your children

too. Prophet Muhammad SAW once said: “Within my people will be those who hold steadfast to the truth. They will not feel burdened by any obstacle that they are faced with, until the time when Allahs commands come to them.” (Narrated by Muslim and Bukhari) [.et us pray that we are included in this category.

* This text was prepared in the Kamunting Detention Camp during the writers detention under 15 A. He was subsequently transferred to the Kajang Prison after the verdict.

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FORSAGA PERDANA LIBRARY

MonHaMAD Ezam MoHD NoR is currently the Chairman of GERAK. Upon graduation in Economics from the International Islamic University Malaysia in 1991, Ezam joined Institut Kajian Dasar

(Institute for Policy Research), a non-profit think tank, and became its Deputy Director before he was appointed as the Political Secretary to the Minister of Finance and Deputy Prime Minister, Anwar Ibrahim. In 1999, led by Dr. Wan Azizah Wan Ismail, he and a group of activists founded a multiracial party, Parti Keadilan Nasional (later renamed Parti Keadilan Rakyat following its merger with Parti Rakyat Malaysia) and served as Youth Chief of the party until September 2006. In 2001, Ezam was detained for two years under the Internal Securiy Act (ISA), an act which allows indefinite detention without trial. He was also charged, convicted but subsequently acquitted on appeal under the Official Secrets Act (OSA) for exposing documents prepared by the Anti Corruption Agency (ACA) which recommended that two senior ministers be charged for corruption. In 2002, he was declared by Amnesty International and Human Rights Watch as a ‘Prisoner of Conscience’. FanpAa NUur AHMAD KAMAR is an advocate and solicitor of the High Court of Malaya and Syariah counsel. Presently a litigation lawyer with an established law firm in Kuala Lumpur, Fahda is also attached to several NGOs, such as Movement for

Democracy and Anti-Corruption (GERAK) as Founding Member, Institut Kajian Dasar (IKD) as Fellow and Women’s Institute for Research,

Development and Advancement (WIRDA). A law graduate from the International Islamic University,

she was named Best Student in Law, Best Overall Student and recipient of the President’s Award in year 2000. In 2003, she was awarded the British Chevening Scholarship to pursue her masters in law at the University College LLondon (UCL). Upon graduation, she was honoured with the Sir Jack Jacob Prize in 2004. Also a student leader, Fahda has represented Malaysia in various debating and mooting tournaments and youth programmes in Singapore, Philippines, Australia, New Zealand, Japan and USA, since 1997.She

was the former recipient of the National Youth Award 1999 and Commonwealth

Youth Award 1999. She is also a writer and was former columnist in the National Daily Utusan Malaysia and magazine Dewan Siswa. ISBN 978-983-42289-0-3

9"789834"228903