Recognising the importance of freedom of information at individual, organisational, national and international levels, the United Nations has declared "freedom of information as a fundamental human right." The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on December 10, 1948 states, inter alia, that everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinion without interference and seek, receive and impart information and ideas through any media and regardless of frontiers. The Uneco Media Declaration was adopted on November 22, 1978 at the general session of Unesco. Article 11(2) of the UNESCO Media Declaration states: "Access by the public to information should be guaranteed, journalists must have the freedom to report and the fullest possible facilities of access to information. The mass media should be responsive to the problems and concern of peoples and individuals."

Although the aforementioned Universal Declaration of Human Rights and the Unesco Media Declaration assert that "freedom of information is a fundamental human right and access by the public to information should be guaranteed," yet in most democratic countries, freedom of information has not been explicitly embedded in their constitutions.

However, a number of democratic countries which did not explicitly recognise the freedom of information in their constitutions, have subsequently adopted freedom of information regime by amending existing secrecy laws or enacting separate laws. These laws are contributing in evolving norms on freedom of expression. Examples may be found in the Official Secrets Act, 1989 in the United Kingdom, the US Freedom of Information (FOI) Act, 1966 (amended in 1996), the Canadian Access to Information Act, 1982 (amended in 1999). Australia has also adopted a new FOI Act. In countries where constitutions enshrine the only guarantee of free expression and which do not have laws on freedom of information, national courts are increasingly interpreting these provisions to also include the right to receive information.

In a few countries like South Africa, New Zealand, Nepal, Sweden, etc. the freedom of information has been recognised in their constitutional framework.

Article 32(1) (2) of the Constitution of South Africa states:

1. Everyone has the right of access to:

a. any information held by the state; and

b. any information that is held by another person and that is required for the exercise or protection of any rights.

2. National legislation must be enacted to give effect to this right, and may provide reasonable measures to alleviate the administrative and financial burden on the state.

Article 2.71 of the New Zealand Constitution provides: "The government has a responsibility to keep the public informed about important issues of the day. Ways in which this is done include the use of print, visual or sound media, or appearances at conferences and other gatherings to explain and discuss government policies and plans." New Zealand has also adopted a new FOI Act.

In Sweden, the freedom of information has been recognised in the constitutional framework, particularly through the incorporation of the institution of Ombudsman in the Constitution of 1809. The Ombudsman is an officer of the parliament whose duty is to ensure that civil servants carry out their administrative duties according to law and to institute proceedings if they fail to do so. Report of the Task Forces on Bangladesh Development Strategies for the 1990s (vol. 2) states: "Every day members of the Swedish press call at the Ombudsman's office to examine the complaints and decisions of the previous day. The files are laid on the table ready for the inspection by the press. The pressmen select those cases which are of general interest and they have the right to criticize the Ombudsman's handling of a case."

Let me now discuss the issue in reference to Bangladesh. There is the absence of a direct reference in the Constitution of Bangladesh to freedom of information or right of access to government-held documents. Article 39 of the Constitution ensures freedom of expression as one of the fundamental rights. On the one hand, the Constitution is silent about the freedom of information and no FOI Act has yet been enacted, and on the other hand, there are many laws prohibiting the disclosure of official document and information.

Among these, the Official Secrets Act, 1923, Evidence Act, 1872, Rules of Business,1996, The Government Servants (Conduct) Rules, 1979, stand as significant barriers in the free flow of information.

The Official Secrets Act makes all disclosure and use of official information a criminal offence. Section 5 of the Act lays down that if any person possessing any document or information which has been entrusted to him in confidence by any government official, or which he has obtained as an official, (a) willfully communicate it to any unauthorised person, (b) uses it for the benefit of foreign power, (c) retains it in breach of duty, (d) fails to take reasonable care so as to endanger its safety, he shall be guilty of an offence. Clause (2) of Section 5 of the Act also provides that it will be punishable offence if any person voluntarily receives any secret information knowing or having reasonable ground to believe that such information is communicated in contravention of the Act.

Sections 123 and 124 of the Evidence Act, 1872, protect from the disclosure of documents and communications which are considered to be privileged. According to section 123, no one is permitted to give evidence derived from unpublished official records relating to "Affairs of State," except with the permission of the departmental head who may either give or withhold the permission.

Rule 28(1) of the Rules of Business, 1996, prohibits government servants to communicate information, acquired directly or indirectly from official documents or relating to official matter, to the press, to non-officials or even officials belonging to other government offices.

Section 19 of the Government Servants (Conduct) Rules, 1979, provides that a government servant shall not, unless generally or specially empowered by the government in this behalf, disclose directly or indirectly to government servants belonging to other ministries, divisions or departments, or to non-official persons or to the press, the contents of any official document or communicate any information which has come to his possession in the course of his official duties, or has been prepared or collected by him in the course of those duties, whether from official sources or otherwise.

It appears from the above that Bangladesh has no dearth of laws to deny the public and the press their right of access to information.

It may be stated that the freedom of information is linked with core notions of democratic governance like transparency, accountability, check and balance, etc. The Public Administration Reform Commission (PARC) in its report (vol.1) of 2000 observes: "Information may be an instrument of popular control as only informed people are able to criticise the government's policy by exerting powerful check on the potential or actual misuses and abuse of its power. Again, it may be a catalyst of political equality by making congruence between policies and the public's expressed desires."

Keeping the above situation in view, the PARC in its report submitted to the government suggested enactment of Freedom of Information Act in order to provide freedom to every person to secure access to information under the control of public authorities.

The salient features of the draft bill proposed by the PARC are:

*Every public authority shall be under a duty to maintain all its record as per its operational requirements, duly catalogued and indexed and grant access to information to any person requesting such access.

*Each public authority shall publish periodically and keep updated information indicating particulars of its organisation, functions and responsibilities; classes of records under its control; and the facilities provided for access to information.

*It shall be the duty of the concerned officers of a public authority to give reasons for decisions -- whether administrative or adjudicative -- to those affected and to disclose the relevant facts and analyses when major policies or decisions are announced.

*Upon a request being made to him, the concerned officer shall provide access to the information within a fixed period that shall not exceed 45 days.

*Where the officer decides to refuse access, such decisions shall also be taken within 15 days of the receipt of the request and it shall be communicated to the requester in writing, setting out the precise grounds and the relevant provisions of the Act.

*Information covered by any of the following categories would be exempted from disclosure: (i) information, the disclosure of which would prejudicially affect the sovereignty and integrity of Bangladesh, security of the State and conduct of international relations; (ii) information, the disclosure of which would prejudicially affect the law enforcement activities including detection, prevention, investigation or suppression of crime or contravention of any law; (iv) information, the disclosure of which would prejudicially affect the government's ability to manage the economy or would prejudicially affect the legitimate economic and commercial interests of a public authority; (v) information in the nature of trade or commercial secrets or any information having a commercial value; (vi) information which would cause unwarranted invasion of the privacy of an individual; (vii) information, the disclosure of which may result in the breach of parliamentary privileges or would amount to violation of an order of a competent court.

*The government may prescribe the fees to be charged for access to information. The fees may, however, be waived where the disclosure of information would be in the larger public interest.

To conclude, ensuring people's right of access to information will help improve transparency, accountability, check and balance and people's participation in the decision-making process, which are sine qua non for good governance. While talking to some journalists recently, the minister for law, justice and parliamentary affairs disclosed that the government was considering enactment of the freedom of information law. People's right of access to information is an important national issue. So, it is expected that the government would solicit opinion of the public and the media by disclosing to the print media the salient features of the draft law. This will also help our lawmakers in the passage of the legislation.

M. Abdul Latif Mondal is a former Secretary to the government.