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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: 178
February 20, 2005

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Law vision

Public's Right to Information

Barrister Harun ur Rashid

Bangladesh people have the right to information as part of the rights to live in a democratic society. To exercise this right citizens must be able to gather information at home and abroad.

As consequence to the right of information, citizens have four broad rights, such as they must find it possible to publish or relate otherwise the information thus acquired without prior restraint or censorship by government, they must be free to declare or print without fear of punishment, they must possess the means of using or acquiring implements of publication, and they should have freedom to distribute and disseminate without obstruction by government or by their fellow citizens.

Freedom to speak and write about public issues is as important to the life of democratic government as is heart to the human body. In fact, this privilege is the heart of accountability of government. If that heart is weakened, the result is death, so said American Justice Black in 1940 in the case of Milk Wagon Drivers Union vs Meadowmoor Dairies.

Another American Judge Felix Frankfurter in 1941 in the case of <>Bridges vs California<>, ruled that "because freedom of public expression alone assures the unfolding of truth, it is indispensable to the democratic process." What the Judge implied that unfolding truth emanates from the right to information.

The origin and evolution of the idea that the public has the right to information have less to do with constitutional history than with the taxpayer's right to information how government spends their money in running the country.

The right to information is a clear sign of the desire for knowledge. The demand for openness is a clear sign of democratic pressure. Through history the demand has had to be conceded partially and bit by bit. Successive Kings were forced by this means to concede the right to information, first to the feudal lords, and then to the gentry, the merchants and later to public in order to stave off the revolts against their power.

Later the struggle to secure the admission of the press to the House of Commons and bring about the publication of Hansard reflected the demand of the voters the right to information what their MPs were doing in their name in the Parliament. The members of the American Society of Newspaper Editors, as citizens, partake and share in this right to information in their own names and as editors, reporters and writers they act, besides, as agents of other citizens whose right to information they invoke.

The development of parliamentary democracy, universal education and the growth of the mass media have all increased the range of public understanding through right to information about government, industry and have in turn reinforced democracy.

While the public has the right to information, it is acknowledged that there are certain matters which are subject to secrecy. The argument of secrecy is basic and runs like this. Every country is vulnerable to external attack and internal subversion and its defence requires it to prepare plans against these possibilities. Thus preparations must be kept behind the tightest veil of secrecy. The logic of this argument is reasonable and few will challenge it.

But having said that, the limits of secrecy have to be carefully defined to avoid a situation in which any and every action of government is justified by reference to security. Every dictator in history has always found that an appeal to security is a simplest way to win public acquiescence for his tyranny or dictatorship.

It is common knowledge that strong armed forces that are built up to resist foreign aggression could then be used to suppress discontent arising from legitimate demands for human rights at home. Similarly, an internal security apparatus is established in the guise of defending a free society and then becomes an instrument for eroding freedom in the society it is intended to defend. There is always the risk that internal security measures could be abused to deal with political opponents and critics of government.

All these distortions of security can themselves be concealed behind the very veil of secrecy which the needs of security are supposed to justify. The balance between freedom including the right to information and security poses difficulty in democracy.

In the US, former Senator and Vice President Walter Mondale was a member of a Committee to inquire into the conduct of the security services during the Nixon administration and his report is illuminating as to how secrecy has been abused. He wrote in the report:

" There was massive invasion of privacy. For years FBI and CIA illegally tapped phones and engaged in other forms of electronic surveillance. The FBI and CIA both opened the private of American citizens. The mail of people such as Kennedy was opened. The law did not matter." The US has now made a serious effort to open up discussion of the proper limits of secrecy in a democratic society.

Freedom of Information legislation is a key to implement the right to information. Sensitive to growing political pressures for governmental openness, almost all Western democratic countries have enacted Freedom of Information laws. India did it in 2003.

Bangladesh is a democratic country and Article 11 of the Bangladesh Constitution makes it clear. Consistent with the democratic principles, it is suggested that Bangladesh Parliament may enact the Freedom of Information legislation to provide the public the right to information in any matter in governmental activities.

The sooner the law is enacted, the better will be the country's image for its transparency and accountability. Secrecy is the great enemy of democracy and the right to information is to safeguard basic liberties in a democratic country.

The author is Former Bangladesh Ambassador to the UN, Geneva.



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