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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 27
July 7, 2007

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Law campaign

Possible way to dismantle secrecy regime

Dr. Abdullah Al Faruque

In every democratic society, right to information is considered as a pivotal instrument of democratic governance and potential tool of accountability and transparency of public administration. The notion of right to information is logical extension of the freedom of expression and thought -- a core component of individual liberty and freedoms. Many countries have either incorporated right to information as a fundamental human right or adopted specific legislation on it or amended existing secrecy laws to promote freedom of information in line with emerging trend of openness in government activities. Freedom of information may facilitate to attain fundamental goals of democratic governance like transparency, accountability, educating public of the civic sense and responsibilities. On the other hand, constraints on the disclosure of information create considerable hardship in the way of individual's understanding of his role in a democratic society. Access to information also promotes popular control and political equality and enhances the quality of decision making process. In the age of globalisation, information is treated as public good and therefore, should be disseminated as much as possible for the self-realisation of individual. Through access to information people can make informed decision and hold public bodies accountable, which in turn can prevent corruption and mismanagement of resources.

In our country, information is generally withheld on the ground of state security and public interest under the legal rubric. The existing laws and procedures like the Official Secrets Act, 1923, Evidence Act, 1872, Rules of Business, the Government Servant (Conduct) Rules, 1979 create legal regime on secrecy that deny access to information. But the emerging trends of public interest dictate that information which concerns individuals' needs and necessary to their civil and personal freedoms should be accessible to the public at large. There is a growing realization that public interest will be served in the best possible manner by ensuring public access to information which relates one's basic needs such as health, environment, education or the reasons of arrest etc. Therefore, a specific and comprehensive legislation on right to information is imperative for legal recognition of access to information relating to functioning of public authorities and public bodies.

A separate law on right to information is considered as the best possible way to facilitate access to information. An enabling legislation can make a shift from official secrecy regime to one of freedom of information. The specific legislation for right to information is needed for two reasons: to get information as a legally enforceable right and to case a positive obligation upon the public authorities to ensure access to information. Enactment of specific law can also break the entrenched tradition of secrecy that has been developed by the several existing laws and bureaucratic culture that promotes secrecy.

In this regard, draft law prepared by a group of very reputed legal experts and lawyers under the auspices of Manusher Jonno Foundation -- a governance and human rights based NGO, is very timely initiative and sets a benchmark in formulating legislation on right to information. The draft law is very comprehensive, and covers most of the aspects of the issues involved.
The draft has the following salient features:
*positive duty on public authorities to disclose information regarding their activities;
*provision of giving information on payment of fees;
*institutional framework for implementation of the Act;
*Criminal liability for refusal to provide information by public authorities without just cause;
*Broader definition of information;
*Clear definition of public authorities and their defined responsibilities regarding disclosure of information;
*Timely release of information;
*Overriding effect of proposed legislation on Official Secrets Act, 1923 and other laws/rules having provisions of secrecy;
*Striking a delicate balance between public interest and individual rights by providing exemptions from disclosure of information;
*Establishment of an institutional mechanism called 'Information Commission' and its well defined powers and functions;
*Accountability of the 'Information Commission' through submission of the annual report;
*The law provides procedure for access to information as well as procedure for providing information.

However, the draft is silent about necessity of publicity of law to create awareness about right to information and training for government officials on how to use law and procedure on right to information. These functions can be conveniently entrusted to the proposed 'Information Commission' envisaged in the draft law.

The draft law is marked by conceptual clarity and provides compelling explanations of most of the provisions of law. Given the window of opportunity created by present care-taker government's reform agenda, the draft law should be implemented by turning it into law as soon as possible to dismantle the secrecy regime and pave the way for transparent and accountable government.

The writer is Associate Professor, Department of Law, University of Chittagong.

Comments on draft RTI Act

Draft law needs to be more precise

Khadem Ali

The Right to Information Act (Daily Star, June 9, 2007) will be good news if it sees the light of the day. In fact it will give teeth to so many other laws which are breached with impunity under cover of Official Secrecy Act. The impressive groundwork by the team of Manusher Jonno (Star Weekend Magazine, June 8, 2007) and its many supporters deserve our commendation and full support. The Daily Star is to be commended for its consistent advocacy and many past initiatives on this cause. I hope the media will keep up this effort.

Law is foundation of a just and civilized order. Secrecy is the dark force which tends to undermine this order. What darkness is to a thief, culture of secrecy is to public bodies. That is why Jefferson's apt remark, the choice should be clear between a government without a free press and a free press without a government. In those formative years of the US he opted for a free press, and got both for his people. Our choice and our tragedy, to be frank, gave us none. During the formative years of the independent Bangladesh I had once the occasion to informally ask the then Law Minister why should we obey repressive laws which do not serve public interest. He responded by saying, 'even if they don't, we have to obey the laws'. The result is there for all to see.

Sadly, our framers of law, and legal institutions charged to implement them, fail to discriminate between legitimacy and legality of the law. Legitimacy is the cause d'etre for Law; the rest are mere tools of implementation. The tools or laws written by its framers, which are at times imperfect and inappropriately used; but with time they all require improvement and adjustment to the purpose, which is people's welfare. This does not happen.

The legal architecture of the state is full of pitfalls for the citizens. The people in the legal profession are constrained by legality and are themselves victims. We lay citizens, clearheaded but impotent, wedged between the insensitive bodies of laws and the legal practitioners, are put between a rock and a hard place. The Right to Information Act can restore our empowerment. Whether or not that will happen remains a question. Present environment gives us some hope. So, if not now, then never.

Democracy is not the right of political parties to get elected by abusing a flawed system, but people's right to good governance through genuine representation. The head of the CTG Dr. Fakhruddin Ahmed rightly stated in his second policy statement during the opening of the Ekushey Boi Mela on 21st February: “It is time now to reflect on our aspirations for a liberated Bangladesh and what were our dreams and why didn't they come true ! It is time to think how these can be achieved, and to take actions”. On 15th March he again echoed our sentiment when he said, “Law is made for man, man is not made for law.” The Legal Advisor of the CTG most recently voiced our anticipation stating, “the primary task before the CTG is ensuring future of good governance, and not early election”.

We support this position, for this is the legitimacy of the CTG. We expect from him to ensure that the Right to Information Act is not diluted or frustrated again by bureaucracy, and is expeditiously adopted before the time runs out. As a member of the legal profession himself, what better can he do by setting this landmark for his people !

Footnote: The draft Law appears to have loopholes and needs to be at places more precise. To cite one example, Chapter III, Article 8, Exemptions from Disclosure of Information, subclause (1) paragraph (h) the text “cabinet papers, including records of deliberations of the Cabinet, Secretaries and other officers” gives a blanket cover for denial of information on a wide range of actions. The words 'secretaries and other officers' might be deleted or made more qualified. There are other examples.

The writer is Architect by profession.


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