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August 22, 2004 

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Freedom of Information and the Media

Justice Mohammad Gholam Rabbani

A free press is a check to government power. There is no doubt about it. But without freedom of information the press depends on leaks, which may either be official or unofficial. Official leaks are press hand-outs which are dressed up to suit the government's interest while unofficial leaks are risky in view of the laws of libel, contempt and official secrets.

Canada was legislated 'Access to Information Act' in 1982 while USA has had such legislation since 1966. Its Freedom of Information Act applies to all parts of the federal government unless an exemption applies and the exempted categories include information concerning defence, law enforcement and foreign policy. Many other countries have freedom of information legislation wherein the usefulness of the information is determined by the person who seeks it rather than by ministers or civil servants, that is usefulness is not an objective quality, but depends on the purposes of the person who seeks the information.

Sub-article 2 of article 39 in Part III (Fundamental Rights) of our Constitution runs as follows: "(2) Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence (a) the right of every citizen to freedom of speech and expression; and (b) freedom of the press, are guaranteed".

In those countries the exemptions can be challenged in court and the onus of proof is on he agency withholding the information to prove that the disclosure can bring that harm the exemption in the Act was intended to prevent. Our Supreme Court is yet to give decision on the issue of freedom of information and the press guaranteed in our constitution.

Justice Mohammad Gholam Rabbani, Retired Judge, Appellate Division, Supreme Court.

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