Right
to Information Act
Expectation and reality
Dr.
Asif Nazrul
Right
to information is considered as one of the fundamental prerequisites
for ensuring transparency, accountability and responsiveness in the
relations between the state and its citizens. It acts as an important
facilitator in ensuring good governance and rule of law in a country
and promotes sovereign equality of different states.
Right to information
underlies in the right to freedom of expression and speech as enshrined
in the Constitution of various countries. The necessity of its distinct
identity, however, is spelt out in the legal regime of many developed
countries and has been increasingly recognised in the legal instruments
of global concern. In respond to their commitment to those instruments,
the developing countries have also stepped forward to develop or promulgate
specific legislations to enhance access to information, previously kept
restricted by domestic secrecy laws.
Right to information
is demanded by the civil society of Bangladesh for a long period. The
response of the state machinery to that demand came visibly only in
the post-Ershad era. The Law Commission had produced a Working Paper
on the Proposed Right to Information Act in 2002 and circulated that
paper to some selected organisation in 2003. An analysis of the proposed
Act should be preceded by comparable contents of right to information
as found in relevant international instruments ratified by Bangladesh.
Legal
bases of right to information
The relevant legal bases for the right to information are available
in Article 19 of the Universal Declaration of Human Rights (UDHR), Article
19 of the International Covenant on Civil and Political Rights (ICCPR).
Article 19 of the Universal Declaration of Human Rights (UDHR) defines
right to information as a fundamental ingredient of the right to freedom
of expression in the following terms:
Everyone has the
right to freedom of opinion and expression; this right includes the
right to hold opinions without interference and to seek, receive and
impart information and ideas through any media regardless of frontiers.
Article 19 of The
International Covenant on Civil and Political Rights (ICCPR) guarantees
the right to freedom of opinion and expression, in terms very similar
to the UDHR. Read with Article 2 of the ICCPR, Article 19 requires States
to facilitate the development of a diverse, vigorous and independent
media, and provide effective guarantees for freedom of information.
Right to information,
however, could never be understood unless its elements are delineated.
The UN Special Rapporteur on Freedom of Opinion and Expression has provided
extensive commentary on this right in his Annual Reports to the UN Commission
on Human Rights. According to his 1998 and 2000 Annual Reports, the
contents of the right to information can be summarised as follows:
Public bodies have an obligation to disclose information and in order
to comply with that obligation they should establish open, accessible
internal systems for ensuring the public's right to receive information
within strict time limits.
Right to information
includes right to understand the importance of information. The law
on freedom of information should therefore make provisions for relevant
public education and the dissemination of information regarding the
right to information.
A refusal to disclose
information may be based only on genuine and legitimate and measurable
public interest and that refusal must be accompanied by substantive
written reasons.
The cost of gaining
access to information should not be minimal and affordable.
The law should
require that other legislation be interpreted, as far as possible, in
a manner consistent with its provisions.
Individuals should
be protected from any legal, administrative or employment-related sanctions
for releasing information on wrongdoing, viz. dishonesty, miscarriage
of justice and corruption.
Comparing to the
aforesaid legal contents, the Bangladesh Constitution speaks very little
about the right to information. Article 39 of the Constitution guarantees
freedom of expression. As freedom of expression presupposes a right
to have information, Article 39 can be said to have provided the necessary
impetus to frame a Right to Information Act. This has yet not been done
in the last three decades. Furthermore, the relevant constitutional
and international guarantees are diluted by preserving a number of domestic
secrecy laws including the Official Secrecy Act and the Conduct of Civil
Servants Rules as well as some provisions of the Evidence Act.
Analysis
of the Draft Act 2002
The analysis below is based mostly on a Memorandum, prepared by a leading
international organisation working for promoting right to information.
Definition:
The Law Commission's draft law extends freedom of responsibility to
private bodies as well as to public ones. However, in order to avoid
the risks of narrow and undue interpretation of the definition of a
public authority, it must be clarified that the definition includes
all elected, statutory as well as constitutional bodies. Furthermore,
the definition of information should encompass all information held
by public authorities, rather than just information relating to their
functions.
Access
procedure and fees: According to the proposed law, citizens
desiring access to information must submit a form purchased from the
relevant public authority, detailing the particulars of the information
sought and the manner in which access is desired. This access procedure
could be improved in various ways. First, the law should not be restricted
in scope to individuals but should benefit all legal persons like businesses,
political parties and NGOs. Second, the access procedure can be simplified
by requiring only the applicant's name, contact details, and details
about the information sought to facilitate its location. Third, fees
may be charged for the release of information, but only to cover the
administrative costs of disseminating the information. The proposed
law should also contemplate that requests could be submitted by email.
Regime
of exceptions:International standards suggest that a public
authority should not refuse to disclose information unless i) disclosure
threatens to cause substantial harm to a legitimate aim and unless the
harm to the aim is greater than the public interest in having the information.
In contrast, paragraph
14 of the Law Commissions' Working Paper states that "a provision
may be incorporated in the proposed Act to the effect that the proposed
Act shall be applicable subject to the provisions of the prevalent restrictive
laws." Given the highly restrictive nature of the Official Secrecy
Act, it is feared that any such provision would drastically squeeze
citizen's access to information. The right to information law should
rather explicitly override any other laws that impose excessive, unreasonable
and unacceptable prohibitions on access to information.
Omissions
: Besides the above shortcomings, the proposed Act fails to
address a number of important issues usually covered in international
comparable instruments. These are follows:
a) Protection of
benevolent disclosure: The law should provide protection for individuals
who, in good faith, release information on official corruption, maladministration
and negligence.
b) Promotional and
Educational Activities: In order to facilitate transformation to the
culture of transparency, the law should provide for training of relevant
employees within public authorities and promote the idea of freedom
of information, both within government and in society-at-large.
c) Severability:
If a document contains a mix of information, some of which is captured
by an exception, and some of which is subject to disclosure, the law
should specifically provide for the disclosure of non-exempt material.
Concluding
remarks
The Draft Law discussed above may be welcomed with caution as a positive
initiative to advance freedom of expression and information in Bangladesh.
But, unless it supersedes existing secrecy legislation, provides for
extensive education and training, protects the whistleblowers, establish
independence of the relevant appeals tribunals and, above all, unless
an enabling political culture developed, the Act could contribute little
to promote right to freedom of information.
Dr.
Asif Nazrul is an Associate Professor, Department of Law, University
of Dhaka.
