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May 23, 2004

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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.


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