THE Centre for Independent Journalism (CIJ) is concerned with the lack of transparency and public accountability surrounding the State’s decision not to disclose details of the US$1.4 billion settlement between the government, 1Malaysia Development Berhad (1MDB) and Goldman Sachs (the “Parties”) because of “confidentiality clauses”.
According to a written parliamentary reply by De Facto Law Minister Takiyuddin Hassan on 17 November 2020 (question 22), the government cannot give access to the specifics of the agreement “to avoid any legal action being taken due to breach of the terms of the agreement”.
CIJ questions why the State entered into the aforementioned agreement if it had such stringent confidentiality clauses in place that prevents disclosure.
Surely the State and its actors are aware that such an agreement would undermine public interest, accountability and transparency as it means the contents of the agreements would not be subject to public scrutiny. This is especially pertinent given the misappropriation elements at play surrounding 1MDB, and which have been a matter of public interest.
Furthermore, legitimate requirements of confidentiality would typically extend to non-disclosure of information crucial to negotiations regarding settlement terms and should reasonably be limited to the duration of the negotiation period.
We take note and are aware of the importance of protecting private and sensitive information from being arbitrarily revealed and subjected to abuse – for example, information that pertains to national security, defence and public order.
However, States must ensure that blanket assumptions about confidentiality do not become the norm and used as an “easy way” out to avoid sharing information that legitimately should and can be made public.
The minister, in his response, has also failed to justify if the public interest and harm test principles were considered before the specific confidentiality clauses were agreed upon. In the absence of meeting the harm threshold, the interests of justice, in this case, should override the interests of the Parties in maintaining confidentiality.
It should be noted that States such the United Kingdom, Indonesia and Sri Lanka, which have made significant progress towards guaranteeing transparency and access to information through the adoption of Right to Information (RTI) legislations, have also clearly articulated that the larger public interest overrides any exemptions to disclosure provided for in law, including those related to “commercial confidence” and “trade secrets”.
In this regard, we strongly urge the State to:
– Disclose and make public the terms of the settlement agreement between the government, 1MDB and Goldman Sachs;
– Clearly state the terms of the “confidentiality” obligations and provide a legal justification on the following if the State fails to disclose and make public the terms of the settlement agreement:
1) the reasonable grounds and interests of the Parties in keeping the information on the settlement secret;
2) why the non-disclosure requirements cannot be legitimately waived in the interest of the public;
consequences or harms that would occur if the information is provided to the public;
3) the duration the information must be kept secret, and;
the specific legal ramification or burden on a disclosing party, and;
-Avoid continued ambiguous and arbitrary application of “secrecy” requirements by immediately adopting a new legislation on RTI that would promote proactive and maximum disclosure of information of public nature.
The State must abide by higher accountability and transparency standards and stop using “secrecy” to curtail freedom of expression and the public’s RTI, especially when it pertains to a matter of great public interest or when it is done without proper justification to the public.
Centre for Independent Journalism
The views expressed are of the writer and do not necessarily reflect the stand of the newspaper’s owners and editorial board.