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Greater transparency with Selangor’s sunshine law

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by Gan Pei Ling / 15 April 2011 © Selangor Times

Selangor made history when it became the first state in Malaysia to pass the Freedom of Information (FOI) Enactment at its state assembly on April 1.

The state now joins more than 90 countries, including our neighbours Thailand and Indonesia, with an FOI law that recognises citizens’ right to information.

The Centre for Independent Journalism (CIJ) has hailed the passing of this law as a “breakthrough” amid an entrenched culture of secrecy among our government bodies backed by the Official Secrets Act (OSA).

Compared to its original draft tabled last July that was heavily criticised by civil societies, the FOI Enactment passed last Friday has seen several improvements.

Greater transparency and accountability

Firstly, civil servants can now be fined up to RM50,000 or sentenced to five years’ jail, or both, if they are convicted of intentionally giving false or misleading information.

It is also considered an offence if civil servants intentionally restrict or deny public access to information, unless that information is specifically exempted under the law. Civil servants were not liable to such a penalty in the original draft of the FOI Bill.

Secondly, the FOI Enactment now covers not only state departments, but local councils and all state-owned or state-controlled bodies as well.

Thirdly, the Appeals Board has been replaced by a more independent State Information Board to review appeals from applicants whose requests for information have been rejected.

Under the law, the State Information Board must be led by former legal practitioners and independent members not holding any political office or position in any political party.

CIJ also pointed out other improvements in the law, such as a narrower list of exemptions and a 20-year time limit for keeping exempted information confidential.

In addition, information officers and civil servants who disclose information in good faith are protected from prosecution, sanctions and suits.

Impact on general public

When asked by Selangor Times how the FOI Enactment would benefit the people, CIJ executive officer Masjaliza Hamzah said the law had far-reaching impacts in very practical ways.

“If there’s a landslide and the state sets up a committee to inquire into it, under the FOI Enactment, one could argue that the public should have access to reports about the proceedings, including statements recorded from those who testify.

“In other words, we don’t have to wait for the Menteri Besar to declassify it,” said Masjaliza.

“If the playground near your house is in a bad state, you can ask the local council for the amount spent on maintenance and find out who built it.

“Of course, all these are just scenarios; the law will need to be tested,” she said.

FOI select committee chairperson Saari Sungib (Hulu Kelang) had told Selangor Times previously that the state expects tremendous requests for information at local councils and land offices once the law is enforced.

One can anticipate concerned residents requesting information on the state and local councils’ expenditure, tenders awarded and land transactions, to name just a few.

Despite that, it should be noted that filing an application and pursuing it would still take time and energy.

Limitations of the FOI Enactment

Nevertheless, Selangor’s FOI Enactment has certain limitations.

Information classified as official secrets under the OSA is beyond the state law’s jurisdiction.

Individuals’ private information or trade secrets obtained by the state in confidence, as well as information that would “severely jeopardise” the state’s policy implementation or development, can also be kept confidential.

However, such information can be disclosed if there is an overriding public interest or if it is for the investigation of an offence or misconduct.

Besides that, a good FOI law should keep the application fees low, but this was not stated in the enactment.

“Costs should be kept low. Otherwise, it can become an administrative obstacle that denies the public affordable access to information,” CIJ pointed out in its April 1 statement.

CIJ also highlighted that the enactment did not specify the appointment process of the State Information Board.

“This must be an open and transparent process where the public can nominate candidates and the shortlist is published. This will strengthen the independence of the board,” CIJ added.

The law also does not mandate the periodic publication of information to make information more accessible to the public.

“Routine publication will help to reduce the administrative burden on information officers and increase transparency across all public bodies,” said CIJ in response to the shortcomings in the law.

The state’s FOI taskforce chief, Elizabeth Wong, said the FOI Enactment is a “dynamic, living legislation” and the legislature can improve the enactment from time to time.

“This is only the beginning of our journey to introduce a culture of openness and transparency in public administration,” said Wong.

Related post: Freedom of Information FAQ

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Freedom of Information FAQ

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Compiled by Gan Pei Ling / 15 April 2011 © Selangor Times

What is Freedom of Information (FOI) and why do we need laws to ensure it?

As tax- and ratepayers, the public has a right to know how governments use and manage public funds. FOI laws empower the public with access to information, and allow inspection of files and scrutiny of government administration.

In other words, a good FOI law helps promote transparency, accountability and reduce graft.

Does Malaysia has a FOI law?

We do not have a FOI law at the national level, but Selangor passed the FOI Enactment in its state assembly on April 1. It is the first state to do so.

Following Selangor’s footsteps, Penang also tabled its FOI bill in November 2010, but the draft has came under fire from civil societies as lacking in substance.

The Selangor FOI bill also came under severe criticism when it was first tabled in July 2010. However, the legislature appointed a select committee to consult civil societies and civil servants to improve the bill.

An amended version was tabled on March 28 and passed without objection on April 1.

When will Selangor’s FOI Enactment come into force?

Elizabeth Wong, who is leading the Selangor’s FOI taskforce, said it would take around six months for the state to enforce the law.

She said they would need to appoint and train information officers in all relevant bodies to handle information applications, draft the application forms, and set up a fee structure.

Selangor also needs to set up the State Information Board, which would review appeals from applicants whose request for information has been rejected.

Wong, who is also the executive councillor on tourism, consumer affairs and environment, estimated that Selangor would need to allocate RM1 million to enforce the FOI law.

Who will give me information? Is there a fee?

An information officer will be trained and appointed in each department to handle public requests for information. The information officer is required to respond in writing to your application within 30 days from the date of acknowledgement of the application.

Illiterate or people with disabilities may make a verbal request to the information officer, who will then make a written application on behalf of the applicant and provide a copy of it to the applicant.

The fee structure has yet to be ironed out by the state.

What is covered under Selangor’s FOI Enactment?

Once the FOI law comes into force, you can request for information from any state department, local council, or any entity owned or fully controlled by the Selangor government. For example, you can request for information on the state and local councils’ expenditure, tenders awarded, and land transactions.

However, information classified under the federal Official Secrets Act, individuals’ private information, and trade secrets obtained by the state in confidence are exempted under the FOI enactment.

Secrets from states or international organisations may also be kept confidential if its disclosure would affect Selangor’s relations with other states or international organisations.

The information officer may also refuse to disclose information that is likely to severely affect Selangor’s development.

Despite that, information must be provided if there is an overriding public interest that outweighs the risks stated above.

The information officer may also allow access to exempted information if it is required for the investigation of an offence or misconduct.

However, all exemptions lapse after 20 years.

What if my application is rejected, or if I’m not satisfied with the information provided?

You can appeal to the State Information Board, made up of former legal practitioners and independent members, within 21 days after you receive the notice from the information officer.

Sources:
FOI Enactment (Selangor)
www.cijmalaysia.org
www.righttoinformation.org

Related post: Greater transparency with Selangor sunshine law

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Let’s talk about sex, please

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by Gan Pei Ling / 28 July 2010 © The Nut Graph

(Chalkboard image by ilco / sxc.hu)

(Chalkboard image by ilco / sxc.hu)

TO its credit, the government is trying to introduce sex education in schools. From mid-2009 till end of 2011, the Women, Family and Community Development Ministry and the Education Ministry are implementing a pilot project targeting 16- and 17-year-olds in five schools.

“The ministry hopes to use the outcome from the project to advocate for the inclusion of social and reproductive health education in primary and secondary schools,” Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil tells The Nut Graph. Indeed, with increased reports of baby dumping and teenage pregnancies, having sex education is clearly an imperative.

The pilot project is called I’m In Control, and Shahrizat explains that the module educates teenagers on how to identify and avoid high-risk situations, including assertive techniques to avoid premarital sex.

If the government is eventually successful in implementing sex education in schools, how should a comprehensive sex education look like? Additionally, what obstacles stand in the way of sex education?

Sexual beings

P.S. The Children‘s training and education director Nooreen Preusser says that everyone, regardless of their age, is a sexual being. “Even babies are curious about their bodies and play with their genitals; it’s a healthy curiosity,” she says in a phone interview with The Nut Graph.

Hence, she argues, sex and sexuality education should begin from pre-school, in an age-appropriate way.

Preusser (Courtesy of Nooreen Preusser)

“We could start by teaching children the correct names of their private body parts as we teach them the names of their other body parts,” she says, adding that that this signals there is no shame or mystery associated with private body parts.

Preusser says that in Germany, eight- and nine-year-olds are taught the basic facts about heterosexual sex and conception.

“The children are not shocked as it is done in an appropriate and matter-of-fact way,” she says, stressing that children also need to be taught to differentiate between a safe and unsafe touch.

Preusser adds that in countries like Finland and Netherlands, where sex education starts at pre-school, the rates of unplanned teenage pregnancies and teenagers infected with sexually transmitted infections (STIs) are much lower.

Access to information

Malaysian youths are also not helped by their alarmingly low awareness about contraception, according to a survey released in 2009. Additionally, contraception is not offered by the public health sector to unmarried people, Low Wah Yun from Universiti Malaya‘s Faculty of Medicine points out in a 2009 research paper.

Youths only have access to contraceptive services by private and non-governmental organisations. However, low awareness on the availability of such services and social stigma prevent most youth from accessing these services.

(Pic by zts / Dreamstime)

“Teenagers have the right to accurate sexual and reproductive health information so that they can make responsible and informed sexual choices,” says Wong Li Leng from the Federation of Reproductive Health Associations Malaysia (FRHAM).

She says her association promotes abstinence, but “we have to accept the reality that some teenagers are engaging in premarital sex, and they need to have information to protect themselves and their partners from HIV/AIDS, STIs, unplanned pregnancies, etc.”

Teaching equality

Activist and writer Marina Mahathir says gender is a key component that should be included in sex education.

“We have to educate teenagers about negative gender stereotypes; for example, how boys are expected to be macho all the time and girls are expected to be submissive in relationships under social norms,” the 3R executive producer says. The TV programme 3R tackles issues on sexuality and women’s rights.

Wong agrees with Marina: “[W]ithout knowing the assumptions made to boys and girls, and recognising how gender stereotyping affects their choices and relationships in their lives, teenagers will not be able to apply the skills [in negotiating sexual relationships] in their daily lives.”

Wong adds that in FRHAM’s module, they also educate adolescents on their rights and values, and what to do when their rights are violated. “[F]or example, if they are sexually harassed or abused, we educate them on why it happens, what to do, and where to go.”

Wong (Pic courtesy of Cheah Shu Yi)

“We [also] explore issues on peer pressure, and the techniques of saying ‘no’,” Wong tells The Nut Graph.

Marina adds that topics such as dating, commitment in a relationship, as well as the existence of different sexualities should also be discussed in sex education.

In Singapore, sex education starts from upper primary till pre-university level. However, homosexuality is only covered in one lesson in lower secondary school, and students are taught that homosexual acts are illegal. People with other sexualities such as transgender, asexual and intersex are not mentioned in the curriculum at all.

“We can’t pretend that people with different sexualities don’t exist. It only serves to elevate discrimination against them. We need to create more safe spaces for people to talk about these issues,” says Marina.

Wong says FRHAM does provide information on other sexualities in their module.

Political will

If Malaysian youth are to be empowered to make informed and responsible choices on their sexual and reproductive health behaviour, then having comprehensive sex education would help. However, the government’s attempt to introduce sex education, also known as social and reproductive health education or sexuality education, in schools is not new.

In 2005, the Education Ministry announced it planned to introduce sex education to curb sexual crimes, internet pornography, and premarital sex. The government also considered including sex education in the National Service programme in 2008. There have not been any updates on either initiative.

Shahrizat (File pic)

Shahrizat says many parents worry because they misconceive sex education as teaching young people how to have sex, while teachers say they are not prepared to take on the subject.

“[P]arents worry [this] will lead to early sexual experimentation and promiscuity.

“However, findings of studies carried out by countries that have implemented sex education such as Sweden, Norway and Netherlands have shown that sex education for young people leads to a delay in sexual initiation, promotes abstinence, and prevents STIs and unwanted pregnancies,” Shahrizat says.

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Strengthening Dewan Negara

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by Gan Pei Ling / 9 June 2010 © The Nut Graph

THE Dewan Negara, or Senate, has long been perceived as a “rubber stamp” of the Dewan Rakyat or Lower House in Malaysia. In a Westminster parliamentary democracy, the Senate is meant to provide checks and balances on the Lower House. Indeed, healthy democracies thrive because of checks and balances.

(Rubber stamp by prototype7/sxc.hu)

(Rubber stamp by prototype7/sxc.hu)

That the Dewan Negara in Malaysia has ceased to play that role effectively is cause for concern. At least one senator, Dr Syed Husin Ali, wants to see the Dewan Negara strengthened. Six months after his December 2009 appointment, Syed Husin, who is also Parti Keadilan Rakyat (PKR) deputy president, launched a campaign to reform the Senate. He is, of course, not the only citizen with such concerns.

Syed Husin and civil society groups have a host of measures they would like implemented. What are they? How will these measures make a difference, and will they gain any traction?

Role of the Senate

Senators are responsible for scrutinising and debating bills that have been vetted by the Dewan Rakyat before they can be passed as law. The Upper House in other democracies such as the US and Australia wield considerable power. In Australia, for example, the Upper House can block legislation originating from the Lower House.

In Malaysia, the Senate cannot veto any bill passed by the Dewan Rakyat. However, Syed Husin explains that the Dewan Negara can amend or delay the passage of ill-considered legislation. But this has happened so rarely that headlines were made when women senators vehemently opposed controversial amendments to the Islamic Family Law in 2005. Eventually, these women senators were compelled by the party whip to vote for the bill.

Syed Husin

Syed Husin

“Once, 15 bills were passed in the Senate in two days,” Syed Husin adds in a phone interview with The Nut Graph on 2 June.

“We need to revive the Senate and make it more effective,” he concludes.

Political appointments

Syed Husin also points out that according to Article 45(2) of the Federal Constitution, appointed senators are supposed to be distinguished in public service or their profession, or represent racial minorities and indigenous peoples.

Today, he notes, the Senate has instead become “the ‘back door’ for politicians who have lost in the general elections to be made ministers or deputies”. In Malaysia, only a member of the Dewan Rakyat or Dewan Negara can be appointed to the cabinet.

Syed Husin cites the example of Gerakan president Tan Sri Dr Koh Tsu Koon, who lost in the 2008 general election but was appointed a senator and a cabinet member later. Umno Wanita chief Datuk Seri Shahrizat Abdul Jalil and former MCA Wanita chief Datin Paduka Chew Mei Fun were also appointed as the Women, Family and Community Development Minister and Deputy Minister in the same way.

In Prime Minister Datuk Seri Najib Razak’s 1 June cabinet reshuffle, three politicians – People’s Progressive Party (PPP) senior vice-president Datuk Maglin Dennis D’Cruz, and MCA vice-presidents Datuk Donald Lim Siang Chai and Gan Ping Sieu – were sworn in as senators after their appointments as deputy ministers were announced.

  • A Kohilan Pillay (Gerakan) – Deputy Foreign Minister
  • Datuk Dr Awang Adek Hussin (Umno) – Deputy Finance Minister
  • Datuk Donald Lim Siang Chai (MCA) – Deputy Finance Minister
  • Gan Ping Sieu (MCA) – Deputy Youth and Sports Minister
  • Heng Seai Kie (MCA) – Deputy Women, Family and Community Development Minister
  • Datuk Seri Jamil Khir Baharom (Umno) – Minister in the Prime Minister (PM)’s Department
  • Datuk Maglin Dennis D’Cruz (PPP) – Deputy Information, Communications and Culture Minister
  • Datuk Maznah Mazlan (Umno) – Deputy Human Resources Minister
  • Datuk T Murugiah (PPP) – Deputy Minister in the PM’s Department
  • Datuk Raja Nong Chik Raja Zainal Abidin (Umno) – Federal Territories and Urban Well-being Minister
  • Datuk Seri Shahrizat Abdul Jalil (Umno) – Women, Family and Community Development Minister
  • Datuk G Palanivel (MIC) – Deputy Plantation, Industries and Commodities Minister
  • Tan Sri Dr Koh Tsu Koon (Gerakan) – Minister in the PM’s Department

BN senators who are also ministers or deputy ministers

Apart from these political appointments, the Senate has also become overgrown with appointed members. Originally, there were more state-elected senators, Syed Husin says.

Currently, 44 out of the 70 senators are appointed by the Agong on the prime minister’s advice. They outnumber the 26 senators who are elected from the 13 state assemblies.

“There should be a balance between federal and state interests in the Senate, as recommended by the Reid Commission (the independent commission that drafted the Malaysian constitution),” argues Syed Husin.

Elections

“Direct election is the best way to reform the Dewan Negara,” says Tan Sri Dr Abdul Hamid Pawanteh, who was Senate president from 2003 to 2009.

The Umno veteran points out that Article 45(4) of the Federal Constitution provides for the direct election of senatorial seats allocated for states. The clause also allows the number of appointed members to be decreased or abolished.

Abdul Hamid

“It’s in the book, we don’t even have to amend the constitution. We just need Parliament to pass a bill,” says Abdul Hamid in a phone interview.

Syed Husin agrees on the need for elections. One of his proposed measures in strengthening the Senate is to let professional groups and minorities like the Orang Asli elect their own representative. This would be an interim measure, he says, until a mechanism is devised that enables these groups to ably compete in direct elections.

Minority interests

Syed Husin is also proposing that the number of senators who represent state interest be increased from two per state to three, as constitutionally provided for.

He suggests that this third state senator should be elected, while the other two remain appointed. Additionally, positions in the Senate that are not allocated for professional or minority groups should be elected positions, not appointed. He says this would be an interim measure until full elections can be held for the Senate.

Political scientist and The Nut Graph columnist Wong Chin Huat agrees that all senators should be elected, but by using a party list–proportional representation system. This system would ensure that a party is able to secure seats in proportion to the amount of popular votes it has garnered. The current system, where a simple majority suffices to secure a seat, has resulted in parties winning a number of seats that are disproportionate to its popular votes.

A report, Transforming the Nation: A 20-Year Plan of Action for Malaysia, has also recommended that all states be given at least three seats in the Senate. The report suggests that more populous states like Selangor may be given additional seats, on the condition that they remain under-represented.

“This is to check the power of larger states,” Wong, who is one of the report’s drafters, explains. The document was written by academics with input from grassroots leaders.

The document also recommended that Sabah, Sarawak and Labuan should in total hold at least one third of the seats in the Senate. That way, East Malaysians can veto any constitutional amendments that affect their interests.

Wong

Wong

“Meanwhile, the over-representation of East Malaysians in the Lower House now may be reduced as part of a package solution,” Wong adds.

Additionally, the document proposes to allocate three seats to Orang Asli voters, and one seat each to Eurasian and Thai Malaysians in the Senate. “There is no way these minorities can swing the vote in a statewide election, and we need senators who will speak out for them,” Wong says.

Despite these recommendations, Syed Husin admits that reforming the Senate is going to be an uphill task. For now, he is just trying to popularise the idea of reform among voters. Whether or not Senate reform occurs will depend on just how much traction these ideas gain in years to come.