JULY 23 — The right to know is a fundamental right of every citizen. Without it, every other democratic right is diminished. Democracy flourishes when citizens are informed, engaged, and able to participate meaningfully in public life.
A government’s commitment to transparency is measured not by what it says, but by what it is prepared to disclose.
For decades, Malaysians have called for a federal law that would give citizens a legal right to obtain information held by the government. The tabling of the Freedom of Information Bill 2026 (FOI Bill) is therefore a long-awaited and welcome milestone.
The most authoritative position expanding this fundamental right came from the landmark Federal Court case of Sivarasa Rasiah v. Badan Peguam Malaysia (2005).
Federal Court Judge Datuk Seri Gopal Sri Ram delivered the ruling on how fundamental liberties under Part II of the Federal Constitution must be interpreted generously:
“It is well-established that the provisions of our Constitution guaranteeing fundamental liberties must be interpreted prismatically and liberally, not literally. The right to freedom of speech and expression guaranteed by Article 10(1)(a) includes within its scope the right to seek, receive and impart information.”
That constitutional principle should also guide the design of the FOI Bill.
Legislation of this importance should do more than create an avenue for requesting information. It should recognise a simple democratic principle: information held by the government belongs, in principle, to the public unless there is a compelling reason to withhold it.
Measured against that standard, the FOI Bill falls short.
While the FOI Bill represents important progress, it preserves many of the legal and administrative barriers that have long restricted public access to information.
Rather than establishing a genuine right to know, it creates a tightly controlled framework that continues to favour secrecy over disclosure.
That is why Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said’s decision to refer the FOI Bill to a Parliamentary Special Select Committee (PSSC) is both timely and welcome. It offers the committee an opportunity to strengthen the legislation before it becomes law.
Advocate and solicitor Sathish Ramachandran believes the FOI Bill contains three structural weaknesses. First, it makes the right to information subordinate to other written laws, preserving existing barriers to disclosure rather than dismantling them. Second, it treats access to information as a conditional entitlement rather than an inherent democratic right. Third, its extensive exemptions are broad enough to undermine the very purpose of the legislation.
As Sathish contends:
“Section 12 is the clincher, with a sweeping list of exemptions from paragraphs (a) to (q), broad enough to swallow the Act’s own purpose.”
A further concern relates to the FOI Bill’s proposed appeals mechanism. Independent review is entrusted to a future Ombudsman established under separate legislation that has yet to be tabled. Without knowing the powers, independence or appointment process of that office, it is impossible to assess whether the FOI Bill’s principal safeguard will be effective.
Sathish notes that the Penang and Selangor Freedom of Information Enactments already provide for appeals to functioning Appeals Boards that have issued decisions compelling disclosure. He also emphasises that Section 16 preserves an important safeguard by maintaining the right to seek judicial review before the High Court, regardless of the Ombudsman’s decision. That judicial oversight, he argues, must not be curtailed.
His strongest criticism, however, is directed at Section 22.
“Section 22 expressly provides that nothing in the Act is to be construed as creating a basic liberty in accordance with the Federal Constitution. In my view, this weakens the constitutional foundation of the right to access information, and I expect it to be among the first provisions to be challenged in court.”
Former Centre to Combat Corruption and Cronyism (C4) chief executive Pushpan Murugiah argues that the FOI Bill suffers from a more fundamental constitutional weakness. Clause 22, he says, severs the connection between access to information and the constitutional guarantee of freedom of expression under Article 10 of the Federal Constitution, reducing the right to information to a statutory entitlement rather than recognising it as a democratic right.
He is equally critical of Clause 18, which makes it an offence to use lawfully disclosed information in a manner inconsistent with the purpose stated in the original application. The penalties are severe: a fine of up to RM100,000, imprisonment for up to five years, or both.
As Pushpan concludes:
“The Bill preserves existing secrecy laws rather than challenging them, restricts who may seek information, and criminalises the use of lawfully disclosed information in ways not contemplated when the original application was made.”
The criticism strikes at the heart of the FOI Bill. Rather than creating a presumption that government-held information belongs to the public, subject only to legitimate exemptions, it largely preserves the existing culture of secrecy.
Clause 6 reinforces that approach by requiring applicants to demonstrate a “proper and tangible interest” and show that they have been prejudiced by the actions of a public authority.
A robust freedom of information law should allow every citizen to request information without having to justify their motives, provide independent oversight and an effective appeals mechanism, require the proactive publication of government information, and protect whistleblowers acting in the public interest.
Perhaps the FOI Bill’s most troubling feature is not how information is withheld, but what happens after it has been disclosed. Even where information is lawfully released, the FOI Bill continues to regulate how it may be used, creating new legal risks for citizens who seek to expose matters of legitimate public interest.
In mature democracies, once information has been lawfully released, it enters the public domain, where it can be analysed, debated and shared freely. Transparency cannot flourish where secrecy remains the default.
Malaysia undoubtedly needs a federal Freedom of Information law, and the FOI Bill is an important step in that direction. Parliament now has an opportunity, through the PSSC, to strengthen the Bill so that it truly places citizens at the centre of the law.
Only then will the right to know become a reality rather than a democratic promise.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
