Clause 22 in Freedom of Information Bill raises questions over Malaysians’ right to know

SHAH ALAM — Malaysia’s proposed Freedom of Information (FOI) Bill is meant to give the public greater access to government-held information.

But one provision has emerged as a particular concern, raising the question of why a law designed to promote access to information would expressly state that it does not create a fundamental constitutional right.

Centre for Independent Journalism (CIJ) executive director Wathshlah G. Naidu described Clause 22 of the proposed Bill as one of its most troubling provisions, arguing that it could limit how the courts interpret the public’s right to information.

The clause states that nothing in the Bill should be construed as creating fundamental liberties under the Federal Constitution.

“I wish somebody could explain why that provision is in there,” she told Sinar Daily.

So, what does it actually mean?

Wathshlah said Part II of the Federal Constitution deals with fundamental liberties, including rights such as the right to life and freedom of expression.

Article 10, for example, guarantees freedom of speech and expression.

Her concern is that access to information cannot easily be separated from the exercise of that freedom.

“How do you express yourself? How do you speak if you don’t have access to information?” she asked.

She also pointed to Article 19 of the Universal Declaration of Human Rights, which recognises the right to seek, receive and impart information as part of freedom of expression.

The issue, therefore, is not simply whether Malaysians can request government documents. It is whether access to information should be recognised as part of the broader rights they already enjoy, and whether the proposed Bill could limit how courts interpret that relationship.

Wathshlah warned that the wording of Clause 22 could restrict the judiciary from adopting a more progressive interpretation of the right to information.

“By putting a negative provision like this, you’re telling the court you cannot progressively interpret this,” she said.

She argued that this also raises a separation of powers concern because Parliament, through the wording of the law, could appear to be directing how courts should not interpret the legislation.

At first glance, constitutional language may sound like something only lawyers and judges need to worry about. But the implications could affect ordinary citizens.

“Imagine a resident trying to find out why a major development is being built near their home, a journalist investigating public spending or a community seeking information about the environmental impact of a project.

“Access to information shapes their ability to question decisions, challenge authorities and participate meaningfully in public life,” she said.

Wathshlah said it therefore makes little sense to establish a law supposedly promoting freedom of information while simultaneously stating that it does not guarantee fundamental liberties.

“You’re saying actually this is not to give you rights. It’s to give you the procedures.

"A procedure tells citizens how to ask.

"A right tells the authorities that citizens are entitled to an answer, subject to legitimate and clearly defined exceptions.

"A Bill about information that says it does not give you a right to information.”

For Wathshlah, the wording is difficult to reconcile with Malaysia’s wider push for transparency and institutional reform.

She said the provision could have consequences beyond the FOI process itself, particularly if citizens eventually challenge government decisions in court.

In fact, she believed Clause 22 could become one of the first parts of the law to face judicial scrutiny.

The bigger question is not whether Malaysia will finally have a Freedom of Information law, but whether that law expands Malaysians’ ability to know, question and scrutinise government decisions — or places a legal ceiling on how far those rights can develop.

For a Bill carrying the word “freedom” in its title, Wathshlah said the question deserves a clear answer.