Yawning Bread. June 2007

Changing the information landscape




In the comments trail behind the essay Teacher unaccountably terminated, Ned Stark asked, "Is there any avenue open for a person who feels that he has been unfairly discriminated against to seek recourse? Be it through a tribunal, a court of law?"

I don't think I can give an authoritative answer, but I doubt if there is any ready process. In any case, the first problem is how to know what were the reasons for the ministry's decision, before one can even consider how to contest that decision.

Koh Jie Kai, in his comment to the article Award-winning local playwright fired from teaching position in The Online Citizen, wrote that in common law, "there is no general obligation on the executive to give reasons". Is there any statute that obliges the government to do so? I don't think so either.

Further, he wrote that even if Alfian (the subject of my previous essay) were to seek judicial review of the ministry's decision, "the judge who would putatively be presiding over the case might be persuaded by the government lawyer defending the [Ministry of Education] to say that not only is there no obligation to give reasons on the grounds of fairness alone, but there is also no reason for the government to give reasons if there is no underlying illegality in its actions."

In other words, the Attorney-General could argue that even if on the face of it, this case suggests some act of discrimination, it is not unlawful to discriminate. Therefore the ministry does not have to justify why it has decided the way it did.

The court might likely take the view that unless the complainant can make out a case that the ministry has acted either unlawfully, grossly irrationally or with malice, there is no reason for the court to interfere with a decision made by the executive branch of government. Common sense after all, would tell us that hiring and firing decisions are better left to the competence of the ministry than to the judiciary.

Thus, as mentioned above in the 2nd paragraph, there are two separate problems here. The first is how citizens can find out the reasons behind a decision. Unless one knows or has means of knowing, it's really hard to embark on a process seeking recourse, even through the courts. The second problem is what are the quality standards by which decisions are measured against? If it is not even unlawful to discriminate, how does one strike down such decisions?


Freedom of Information Act

It is in relation to the first problem that I mentioned, in the previous article, the need for a Freedom of Information Act (FOIA). It can come in various names, but for now I will use this name, based on the UK statute.

I suppose this concept is quite new to Singaporeans. We have known nothing but a ruling class that sees itself as a mandarinate in the Confucian style, answerable only to itself. To question these scholar-mandarins is treated as an act of disloyalty.

As a result, large numbers of Singaporeans have grown cynical. I saw a few comments around saying something to the effect that even if there's a law that says the government should provide reasons, bureaucrats will still provide vague replies and claim that they have complied with the law. Nothing will change, they believe.

In this respect, a look at Britain's FOIA may be help us understand how such a law will work in practice. From a quick reading of the law, I surmise that basically, a citizen can submit a request for information to the government -- naturally, it should be specific -- and the government has a defined period of time in which to supply an answer. The law allows the government to set out a schedule of fees which has to be paid in advance before the answer is provided. This is understandable since retrieving and organising information can involve a cost.

The law has a long list of "exemptions" -- the kinds of information which the government can withhold. Typically, these would involve information related to defence and security, but it also includes information which if released might prejudice an ongoing court case, or jeopardise diplomatic relations with other countries. In order to claim exemption, a minister has to sign a certificate stating which exemption clause is being invoked.

If the citizen feels that the answer provided is incomplete or that an exemption is wrongly claimed, he can refer the matter to the Information Commissioner, who will examine the matter. The Information Commissioner will make a decision whether the answer provided is sufficient and whether the exemption claimed is valid. Reading between the lines, it appears to me that he is empowered to go into the files to see for himself, but I'm not sure about that. If the Information Commissioner rules for the requestor, then the government department must provide a satisfactory answer failing which the minister will be considered to be in contempt of court. That means he could even be locked up until his department complies with the Information Commissioner's ruling.

There is an appeal process as well if either party is not satisfied with the Information Commissioner's ruling. That's a Tribunal, the details of which I don't really need to go into.

As you can see, the FOIA has real teeth. Imagine an Education Minister having to sit in jail until his underlings provide a decent answer.

An FOIA will take care of the first part -- extracting the reasons out of the bureaucracy. Getting recourse is a separate matter.






Data Protection Act

The UK also has another law, called the Data Protection Act, which protects personal data, such as an individual's income, medical details, addresses and phone numbers, etc, from being abused by whoever (including private organisations) holds such information. Abuse includes release to unauthorised parties. At the same time, the individual concerned has certain rights under this law to see what information is being held about him, and to have such information corrected.



"Irresponsible bloggers"

Another thought that occurred to me is this: the government likes to characterise online forums and blogs as irresponsible, speculative and uninformed. Well, in the absence of information, it is hard to be anything but speculative. But who is responsible for the paucity of information?

I'm pretty sure that if an FOIA is in place, netizens will use it to obtain good, detailed information as starting points for the online discourse.


Correcting government behaviour

It seems to me that, perhaps influenced by American examples, people tend to think of the judicial route when it comes to correcting government behaviour. Yet, Singapore's post-independence history is quite unusual in that administrative and constitutional law cases have been few and far between. Why that is so, however, is outside the scope of this essay. Partly perhaps, ordinary citizens may have long formed the opinion that our courts are too deferential to the executive anyway, so why bother, but partly too, it may be because we have few laws that regulate proper administrative behaviour, on which to take the government to task.

For example, if an administrative decision comes out of discriminatory intent, we can be informed of that and still be able to do little about it, so long as it is not unlawful to discriminate. This is why, in addition to an FOIA, we will still need anti-discrimination legislation. Unless there are cogent and compelling reasons, the government should not discriminate along the lines of race, political beliefs, religion, gender, sexual orientation, age and so on. When such a law is in place, it then becomes possible for the aggrieved citizen to take the government to court.

However, there will still be cases when the government makes a decision, that doesn't quite amount to discrimination, but may seem morally unacceptable.

An example that I can think of right now is when means-testing for hospital and medical subsidies is implemented and certain people are denied subsidised status. As things presently stand, without an FOIA, the government doesn't have to tell you why you have been denied, or even what the general criteria are. The latter can be stamped "Confidential" and no bureaucrat will answer even a general query.

But supposing there is an FOIA, and they do tell you why you've been classified as undeserving of subsidies, and supposing there is also an anti-discrimination law, what can you do about it if doesn't quite fall within the traits enumerated in the anti-discrimination law?

The way I see it, we should be looking at the political process rather than only at a judicial one. In other words, public opinion should be wielded to ensure that government action meets a society's notion of fairness. The FOIA alone can take us quite far in this respect. Let daylight shine on the inner workings of the bureaucracy. Subject their logic to public scrutiny. Free the media to report on an independent Information Commissioner's findings, and I am confident things will take their course.

Yawning Bread