Why is Section 22 of the FOI Bill 2026 considered a weakening provision?

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Section 22 of the FOI Bill 2026 Weakens the Constitutional Foundation of Access to Information

Section 22 of the Freedom of Information Bill 2026 is viewed as a weakening provision because it explicitly states that the Act does not create a basic liberty in accordance with the Federal Constitution. This clause severs the connection between the right to access information and the constitutional guarantee of freedom of expression, as outlined in Article 10 of the Federal Constitution. Consequently, the right to information risks being reduced to a mere statutory entitlement rather than being recognised as an inherent democratic right, and legal experts anticipate this provision will be among the first to face judicial challenges.
Severing the Link to Constitutional Freedoms

The core issue with Section 22 is its explicit exclusion of the Act from creating any basic liberty recognised by the Federal Constitution. This is interpreted as undermining the constitutional underpinnings of the right to access information. Historically, the Federal Court, in the Sivarasa Rasiah v. Badan Peguam Malaysia case, established that fundamental liberties must be interpreted liberally, with the right to freedom of speech and expression under Article 10(1)(a) encompassing the right to seek, receive, and impart information. Section 22 appears to disregard this established principle.
Reducing Access to Information to a Statutory Entitlement

By explicitly stating that the FOI Bill does not create a constitutional liberty, Section 22 effectively downgrades the right to information from a fundamental democratic right to a conditional entitlement granted by statute. This shift fundamentally alters the nature of the right, making it dependent on the specific provisions and limitations within the FOI Bill itself, rather than grounding it in the broader constitutional framework that protects democratic freedoms. This approach contrasts with the principle that government-held information should, in principle, belong to the public.
Anticipated Legal Challenges

The perceived weakening of the constitutional foundation by Section 22 has led to expectations that it will be a primary target for legal challenges. Critics argue that this provision significantly curtails the potential effectiveness of the FOI Bill by deliberately disconnecting it from the robust protections afforded by the Federal Constitution. The intention behind such a clause is seen by some as preserving existing barriers to disclosure rather than dismantling them, thereby favouring secrecy over transparency.
Impact on Democratic Rights

The consequence of reducing the right to information to a statutory entitlement, as facilitated by Section 22, is a diminished capacity for citizens to engage meaningfully in public life. A government's commitment to transparency is best demonstrated by its willingness to disclose information, which in turn empowers citizens to hold authorities accountable and participate in democratic processes. By weakening this foundational right, the Bill, as it stands with Section 22, may fall short of establishing a genuine right to know that underpins other democratic rights.

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Why is Section 22 of the FOI Bill 2026 considered a weakening provision?

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