Ho Kwon Ping's Half Baked Take on Citizens' Right to Freedom of Information

When I first entered university some 40-plus years ago, the target of student activism was an obscure Latin expression, "In Loco Parentis" - which is a legal doctrine whereby certain institutions such as universities actually assume the legal powers of a parent.

The Singapore state has not assumed the same level of paternalism over its citizens, but it has come close, making decisions which might elsewhere be individual responsibilities. While this has been widely accepted in the past 50 years, a paternalistic governance culture may need to change to a collaborative model in the future. This is already happening with the abundance of debate about directions facing Singapore in the post-Lee Kuan Yew era. However, such a governance culture of participatory democracy can work only if the institutions of civil society can be actively engaged in decision-making.

For that to happen, civil society players need access to that lifeblood of robust discussion: freely available and largely unrestricted information. Information is the oxygen without which civil society players suffocate in their own ignorance and resort only to repetitive drumming of their causes, but without the ability to really engage with their own members, with other players, or with government. Access to information is an existential imperative for civil society to perform its functions responsibly and knowledgeably.

The currently unequal access to information is called "information asymmetry" by academics, and one of the reasons all governments are averse to sharing information is not just because of the sensitivity of secrets, but because information is power, and asymmetry between seeker and owner of information shapes their relative power relationship.
To rectify this imbalance, some civil society activists have called for a Freedom of Information Act or FOIA. This would require open access to and declassification of all government archives after 25 to 30 years, and almost unfettered access to information about oneself at any time.

So should Singapore simply adopt a FOIA? Just joining the bandwagon is not by itself meaningful. Of the 99 countries which have FOIA legislation are such beacons of liberal democracy as Nigeria, Uganda, Zimbabwe, China, Pakistan, Thailand, Russia, Yemen, and all the "Stan's" of Central Asia. The reputations of these countries for good governance are so questionable that one must wonder whether their own FOIA are actually devices to smoke out and track potential dissidents.

Of course, most Western liberal democracies do have effectively functioning FOIA, but while it has redressed information asymmetry, the downside is that it also exacerbates the adversarial relationship between civil society and government. While this may be the underlying basis for a check-and-balance system in Western political cultures, it does not encourage a collaborative governance style. It can even be dysfunctional for the conduct of diplomacy and general statecraft, which must often require total confidentiality between parties.

One possible way to redress information asymmetry within a collaborative governance culture is to legislate a Code on Information Disclosure which is not legally enforceable but morally binding, and sets out the principles by which ministries can or should not protect information, and the importance of open sharing of information for a civil society.

Ministries would be required to employ independent access-to-information officers such as retired judges, to evaluate and give written replies to information requests. Media attention and public pressure would serve as leverage in cases of non-compliance with the code, or where there is controversy. Hong Kong, I understand, has a system similar to what I have described.

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One possible way to redress information asymmetry within a collaborative governance culture is to legislate a Code on Information Disclosure which is not legally enforceable but morally binding, and sets out the principles by which ministries can or should not protect information, and the importance of open sharing of information for a civil society.

Ministries would be required to employ independent access-to-information officers such as retired judges, to evaluate and give written replies to information requests. Media attention and public pressure would serve as leverage in cases of non-compliance with the code, or where there is controversy. Hong Kong, I understand, has a system similar to what I have described.

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Officials impede Hong Kong's progress by blocking freer flow of information
Jane Moir says a law is long overdue to raise the standards of governance and accountability

Important stories in the public interest have been crafted from freedom of information requests. In Britain, revelations of parliamentarians' expense claim abuses, the London police's proclivity for tasering children and the trigger for a full inquiry into celebrity paedophile Jimmy Savile's abuses in public hospitals resulted from landmark legislation adopted a decade ago.

In Britain's experience, a freedom of information law has been, on the whole, a positive force for governance and accountability. Though critics have pointed to some unintended consequences, such as internal communication within government being "dumbed down" through fear of future embarrassment, there is no serious proposal to return to the old days of "mother knows best".

The law has shifted the bureaucratic disclosure pendulum from secrecy-at-all-costs to a right to know. And the parameters of this right are put to the test in the courts.

Twenty years ago this month, Hong Kong introduced a voluntary code on access to information. Sadly, the impact has not matched the experience in the UK or even other jurisdictions in the Asia-Pacific region. In fact, the disclosure pendulum is stuck in the mid-1990s and the culture of accountability for public officials may even have regressed.

If Hong Kong wants to be taken seriously as a "world city" with a genuinely accountable bureaucracy, a good start would be to replace its voluntary code with a law. Somewhat absurdly in a city full of quasi-public bodies, the code covers only government departments and just two public organisations. Other public bodies have the option to join, but face no compulsion; just 22 have signed up, even though Hong Kong has 470 advisory and statutory bodies whose operations are funded with public money.

While the right to information is guaranteed under the Bill of Rights, the code itself has no legal backing. Denials of information or partial responses can be taken to the Ombudsman, who can investigate and make recommendations. However, the government watchdog has no power to compel information and cannot impose sanctions for failing to do so.

Departments can easily bat back requests aided by 16 formal exemptions that include the somewhat opaque "management and operation of public service". Denials of information are often inconsistent, misplaced or unwarranted. Most of the stories emanating from access to information requests are scathing indictments of the process itself.

In 2005, corporate governance activist David Webb tried in vain to use the code to gain access to Cyberport financial statements. He characterised the attitude to his request as "take as long as possible, and if you can find a reason not to provide information, then don't provide it".

These shortcomings were prominently displayed in an Ombudsman's report into the workings of the code in March last year. Its stark conclusion was that voluntary disclosure is not working and the code should be replaced with a law. The government's bald-faced response was that the code was working just fine.

The issue has been under review by the Law Reform Commission for almost two years, although in a piquant irony, it itself has not signed up to the code. Hong Kong prides itself on having a fairly modern governance structure and it will be left in a small club of developed economies that lacks such a legal right to secure information. There are 103 countries with freedom of information laws, which in Asia include China, Japan, South Korea and Indonesia. Hong Kong shares company with Singapore and Malaysia in not enacting a law.

Where Hong Kong has been proactive in enacting and enforcing laws is in the privacy domain. The law protecting personal data was adopted in 1996 and Hong Kong has its own privacy commissioner. As a result, privacy is a right protected by law. Freedom of information is not. This is a contradiction; in a balanced system, these two factors need to offset each other.

At stake is the question of whether Hong Kong remains committed to being an open society which encourages the free flow of information. The Hong Kong Journalists Association, in its 2014 annual report, described the year as "the darkest for press freedom in several decades", while the SAR slipped three places to rank 61st in the World Press Freedom Index last year.

Given the political stalemate in Hong Kong over broader constitutional development issues, it is perhaps not so surprising that an embattled administration would prefer to pull up the drawbridge rather than let the barbarians peer within its walls. This is a short-term approach that ignores the nuts-and-bolts improvement to administration that can result from an informed citizenry and a bureaucracy that knows it is subject to proper scrutiny.

Jane Moir is a barrister and former journalist

http://www.scmp.com/comment/insight...mpede-hong-kongs-progress-blocking-freer-flow

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Rumpole said:

http://www.straitstimes.com/news/op...ry/keeping-the-singapore-dream-alive-20150410

I chanced upon this article in Friday's issue of the Straits Times, written by one Ho Kwon Ping, chairman of Banyan Tree and a former journalist. It is, in my opinion, a sub-standard and half-baked piece of crap, especially the part about Freedom of Information legislation, which I have pasted here for discussion purposes and to facilitate my criticisms in later posts. Nonetheless, I give Ho credit for having learned and applied the art of subliminal messages, no doubt from the editors of Straits Times and not the Far Eastern Review. Please feel free to chip in and do try to detect the hidden (but factually inaccurate) messages.

Rumpole of the Bailey

* Rumpole is the main character in a British TV series about an ageing London barrister who defends any and all clients (see http://en.wikipedia.org/wiki/Rumpole_of_the_Bailey for more info). The author, who is an NUS law grad living and working abroad, chose this moniker to encourage an interest in legal issues because it does not just affect lawyers and their clients. The everyday layman needs to be informed of his rights and obligations and in the context of the “Little Red Dot” to avoid being talked down to or misled by their highly paid Ministers, including those that don’t have any portfolio, or civil servants with bad attitude and poor knowledge of the laws which they are supposed to be enforcing.

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