In recent months, Malaysia’s proposed Right to Information (RTI) Act has prompted discussions about how the legislation should consider ‘local sensitivities and political structure,’ ‘protect national harmony,’ and apply to ‘citizens’ only. These concerns follow the government’s decision to draft an RTI law at the federal level, an initiative that civil society has been campaigning on for decades as part of efforts to address the current culture of secrecy within the government and empower the public to make better-informed decisions.
The right to access information is a fundamental enabling right, critical to achieving other rights. It underpins anti-corruption measures and is the cornerstone for transparency, which in turn enhances the public’s trust in the government. When Malaysia adopts this law, it will join an estimated 140 countries worldwide that already have legislation in place guaranteeing the right to request and access information from public bodies.
Local context is not a permissible restriction
RTI is an integral part of freedom of expression, which is protected under Article 10 of the Malaysian Federal Constitution, as well as under Article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). While Malaysia is not a signatory to ICCPR, ARTICLE 19 considers the obligations under the convention to reflect customary international law and should guide the interpretation of guarantees for freedom of expression under the Malaysian Constitution. Essentially, the government takes on the role of custodian of information held by public bodies and not as a gatekeeper. RTI should be grounded in the principle of maximum disclosure and must be accessible to all.
Any exception to RTI is subject to the strict ‘harm’ and ‘public interest’ tests, which must be clearly and narrowly defined. This means that the authorities can withhold information only if they can meet the following test: information relates to a legitimate aim (i.e. protection of national security, public order, public health, or respect of the rights of others); disclosure threatens to cause substantial harm to that aim; and the harm to the aim must be greater than the public interest in having that information. Restrictions that aim to protect the government’s reputation from embarrassment or the exposure of wrongdoing, including human rights violations and corruption, can never be justified.
This means that broad concepts such as ‘local sensitivities’, ‘political structure’, or efforts to ‘protect national harmony’ do not comply with international standards and could undermine an otherwise effective RTI law through excessively vague or arbitrary interpretations.
For example, during a 2019 national consultation on RTI, civil servants raised concerns about how information about race, religion and royalty (known as ‘3R’ issues), if made public, could be manipulated and politicised. At present, authorities continue to use restrictive laws, including the Sedition Act 1948, the Printing Presses and Publications Act 1984, the Communications and Multimedia Act 1998, and the Penal Code, to stifle freedom of expression, including 3R-related opinions, which have been caught out by overly broad notions such as causing ‘disharmony’ and ‘feelings of enmity, hatred or ill-will’.
RTI is for all
RTI must be accessible to everyone, regardless of nationality. States must ensure that freedom of expression and the right to access information are upheld without discrimination. Migrants, refugees, and stateless persons are particularly vulnerable to exploitation and abuse due to the lack of adequate protection in Malaysia. These groups often lack information about their rights and redress options, or where these options are available to them, such information is not provided in a language they understand. Excluding these communities risks further disenfranchising some of the most marginalised groups and exacerbating existing inequalities, despite the government recently reiterating its commitment to achieving the 2030 Sustainable Development Goals (SDGs).
Corruption cases, abuse of power, human rights violations and environmental destruction have historically been reported on and publicised through the unyielding efforts of both Malaysian and non-Malaysian journalists, academics and human rights defenders. Ensuring that the RTI law extends to all persons, regardless of nationality or place of residence, will enable more individuals to act as effective citizen investigators and checks on impropriety within the government, which will ultimately benefit the nation as a whole.
When an RTI law becomes meaningful
One of the SDGs’ most significant commitments is Goal 16, which calls for all countries to ‘Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.’ The free flow of information strengthens accountability and transparency, prevents corruption, and increases the capacity of everyone to participate in policy-making. RTI is not just a goal in itself – it is a prerequisite to achieving sustainable development as a whole. Information on budgets, spending, regulations, and decision-making enables people to work from a position of knowledge rather than ignorance, allowing them to participate in important decisions that affect their lives.
RTI is about more than government commitments. It empowers people to participate, advocate, and monitor progress towards meaningful development goals. RTI also facilitates effective business practices, as public bodies hold a vast amount of information, particularly relating to economic matters. Open data in this context can enhance accountability and stimulate innovation and business development.
However, for one to reap these benefits, an RTI law that meets international standards and is accessible to all is essential. Apart from ensuring maximum disclosure and setting out a limited scope of exceptions, the government must set up an independent body to ensure that appropriate processes and procedures are in place to guarantee access to information relevant to public interest without political interference. The law should also provide for the right to appeal to an independent body – a specialised and independent administrative body established for this purpose.
It is crucial to ensure that the implementation of the RTI law is not hindered by existing laws that could impede an individual’s access to request information. These laws include: the Official Secrets Act 1972, which institutionalises the culture of secrecy in public bodies; and Section 203A of the Penal Code that prohibits disclosure of any information obtained in the performance of an individual’s duties or functions under any written law. As the Personal Data Protection Act 2010 does not apply to the government, this means that the government cannot be held accountable in the event of any privacy violations. Unless these laws are brought into alignment with the upcoming RTI Act, they will remain a barrier to those seeking access to information.
Adopting an RTI law is already a step in the right direction – one that signals Malaysia’s readiness to embrace greater transparency and accountability, as well as encouraging greater public participation. An informed public is the most effective watchdog for government actions, playing a crucial role in monitoring corruption. However, the accurate measure of progress lies not simply in enacting such a law, but in ensuring that it is grounded in international human rights standards. This is a defining moment for Malaysia: an opportunity not only to join the top RTI-rated countries, but to set a regional benchmark for openness and good governance.