Right to Information Act-2009 in Bangladesh: An Analysis
The Right to informationAct in Bangladesh has come not from the demand of the citizen like India, but from the pressure of international environment, as supply driven. Before the adoption of RTI Act- 2009, access to information was not recognized as a right in Bangladesh. Culture of secrecy has been prevailing in three major organs of the state. And all of those organs are embedded with some rules, regulations and laws that have not been able to discharge its function in pro people manner. Some existing laws are antithetic to the right of access to information that are, Evidence Act 1872, Official Secrecy Act- 1923, The Penal Code 1860, Code of Criminal Procedure 1898, Government Servants (conduct) Rules 1979, Rules of Business 1996 etc. For all those restricting laws, a national movement was started in support of the demand for the right to information in the late nineties. This demand created from a compulsion or pressure which was initiated by international environment and the donors. Civil society, NGOs, The Caretaker Government, the political government unitedly worked for the enactment of the Act. In the following chapter an analyses will be made to examine the role of the mentioned factors which contributed to the enactment of the RTI Act in Bangladesh.
2.1 Historical Perspective:
Unrestricted flow of Information is a part of human right. But this right was not properly fulfilled from the British period. Culture of secrecy is the legacy of the British colonial rule. They maintained that for their own interest of colonial rule. But unfortunately official Secrecy Act- 1923 is operative in almost each country of South Asia, which was enacted under British colonial rule. The right to information in Bangladesh was exercised by the laws in different regime, which are clustered as follows:
Colonial Period: The Penal Code 1860: Section 499 of Penal code restricts persons to express their belief, expressions by words, signs or by any other means he/she has been defamed, entitles him/her to sue for defamation. This is a risk especially for journalists to collect and publish information. Evidence Act 1872:The Restricting articles of the Act are 123, 124 and 125. Under section 123, any information can not be given except with the permission of the head of the department, but nothing to do on his denial. Even the Court is bound to accept the decision of the public officer. Code of Criminal Procedure, 1898: With the help of section 99A, the government, by official gazette can forfeit any book, publication under press and publication Act. Official Secrecy Act- 1923: In this Act sub section 8 of section 2 has defined prohibited area in a very wide range limiting the areas of collecting information. Section 3 deals with disclosing information against the state’s interest. Section 4 states that only for presumption of giving information to foreign agents, offense will be considered. According to section 5, any person can be convicted only for the disclosure of information possessed by him.The purpose of all these laws was to hide Government information from the public not to disclose them to public. The colonial ruler for sake of their own interest hided information from the public, so that they can suppress the logical due of the citizens. The officers possess information as their property and a culture of secrecy was prevailed in all of the organs of government.
Pakistan Period: During this period the laws of the colonial period was almost operative in the country by limiting the people’s access to government owned information, and maintaining the culture of secrecy in the administration. Except some amendments in some legislation, this time people’s access to government information was restricted.
Bangladesh Period: After independence from Pakistan the unfreedomness was prevailed in people’s access to Information. Government Servants (conduct) Rules 1979, which law imposes restrictionon government disclosure of Information. Rule 19 of the Government Servants (conduct) Rules 1979 says any sitting government official can not disclose any information to other ministries, Divisions or Departments, or to non-official persons or press. Rules of Business 1996: The Rules of Business 1996 schedule I has described the allocation of responsibilities. According to the Rules of Business, Ministry of Information is directed to take initiatives for publicity of internal and external policy and to build coordination between different ministries or Divisions. This is a threat to the freedom of press and publication. So the long persistent culture of secrecy in different period created a demand for Right to information in the context of Bangladesh, which was predisposed by international environment.
2.2 Compulsion from International Environment
Trend of openness & globalization created a demand from the external environment. The international funding and donor institutions created a pressure for the enactment of this Act as a part of good governance or reform in the policy process. Global scenario in the adoption of this kind of Act also played an important role, for example India. Throughout the world nations, multilateral organizations and corporations committed to good corporate governance are taking the open road. More than thirty countries have passed laws that give effect to the public’s Right to Know. There is an international trend, setting new standards in openness in contrast to the years of secrecy and tyranny that proceeded the last decade. Thus, an access to information law can offer a new beginning in the relationship between government and its citizens. Transparency and the freer flow of information that comes with it provide a chance to build confidence and to craft a new covenant of trust between the governed and the governing. In this day and age of globalization an exclusively national agenda is no longer meaningful. Whether we like it or not Bangladesh will have to participate in the process of globalization. Bangladesh, over the last two decades has already been exposed to a process of external dependence because of the dominant role of aid donors in underwriting our development finance and influencing our policy agendas. Donors are, today, much more assertive as a price for committing their aid to Bangladesh. Not only have donors sought to use aid conditionality so as to impose policy reforms on Bangladesh but they are now becoming more exigent in their demands for better governance. This tendency of the donors to intrude from the economic to the political domain in their attempt to influence Bangladesh’s policy agendas indicates that two decades of donor driven policy reform have yielded only modest returns.As a part of donor driven policy reform Right to Information came as a tool for achieving good governance.
The right to information is a United Nations (UN)-sponsored and promoted right. A large number of countries which are members of the UN have adopted this right either in their constitution or prevalent common laws. Thus, this right is enforceable in varying degrees in those countries. Indeed, the embracing of this right, since it is judged to be the hallmark of a democratic system, lends to a country’s special repute in the international community and enhances its attraction in different ways. But Bangladesh nurtures a century-old law, ‘the Official Secrets Act’, which deprives people of necessary information. Following a South Asian Regional Conference on Right to Information by the Commonwealth Human Rights Initiative in Dhaka in July 1999, a lot of debate has surfaced in the newspapers and especially among the legal community regarding the need for having some kind of information-access legislation, to strengthen democracy and accountability in Bangladesh. (Saldamondo, internet) So there was pressure from the donor and other international agencies to enact the RTI Act for ensuring good governance. Thus International scenario played an important role in this regard. For example the RTI Act in India & Nepal creates a positive impact in the context of Bangladesh. The United Nations Convention against Corruption (UNCAC) also has a driving role for enactment of this Act. The United Nations Convention against Corruption was adopted on 2003 to combat corruption which includes measures on: prevention, criminalization, international cooperation & asset recovery.
Figure-1: UNCAC Convention 2003
In the prevention part of UNCAC Participation and access to information is given focused as it requires States Parties to enhance transparency in public administration, particularly with regard to its organization, functioning and decision making process. Article10 (a), (b), (c) of UNCAC specially deals with this. (UNCAC: Bangladesh Compliance & Gap Analysis, 2008: 48).
Right to information is recognized by the United Nations as a touchstone to all freedoms. Article 19 of the Universal Declaration of Human Rights(UDHR) refers to the freedom of information by stating that “everyone has the right to the freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” As Bangladesh is a signatory of UDHR it became a compulsion for Bangladesh to ensure people’s right to information. Similar provision can be traced in the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights and Fundamental Freedoms (EHR), in the American Convention on Human Rights (AMR), etc. Thus the international context not only made a pressure upon the government but also created a demand for Right to information among the civil society and the citizens.
2.3 Domestic Factors Behind
Right to Information initiative starts in Bangladesh in early of 1990s. The RTI movement which starts in Rajasthan of India in 1996 also touches Bangladesh. The global wave of democracy make some non government development organizations to take some activities for uphold the right of freedom of expression as per our constitution. Later civil society, NGO, media also joined in that platform. The trend of globalization and international obligation played an important role in this regard. The latest Caretaker Government’s reform initiatives also speed up that process and lastly the political Government ended up with the enactment of the RTI Act -2009. The emergence of the RTI Act will be analyzed by using David Easton’s System Analysis Model. Easton’s conception of system emphasizes linkages between the system and its environment. Inputs (demands) flow into the system and are converted into outputs (decisions & actions) that constitute the authoritative allocation of values. Easton’s system analysis helps understand the authoritative allocation of values in a society.
Fig.:2 Systems Analysis
RTI Act-2009 came as an authoritative allocation in the society like Bangladesh, where changes in the international environment surrounding a political system produce “demands” and “supports” for action or the status quo directed as “inputs” towards the political system, through political behavior. All these demands and supporting groups stimulate competition in a political system, leading to decisions or “outputs” directed at some aspect of the surrounding social or physical environment. This Model of system analysis will help to understand the factors behind the formulation of this Act.
Inputs: Demands from Domestic Environment
Internal pressure was created from the civil society, NGO, media & citizen. The demand for access to information and recognizing Right to Information as a fundamental right has been a claim from the civil society and human rights based organizations in Bangladesh for quite a few years. In 1983, the Press Council for the first time made a demand for Access to information in view of the prevailing political scenario. It was a military regime, so the demand was only centered on publishing in the media. In 1999, a number of human rights organizations in collaboration with Commonwealth Human Rights Initiative (CHRI) arranged a three day seminar in Dhaka to analyze the situation of access to information in South Asian countries. Since then, many NGOs, civil society members, media professionals & lawyers have been promoting this issue. In 2002, law commission prepared a working paper on right to information. In that year Manusher jonno Foundation (MJF) was established to promote human rights and good governance. MJF was involved in preparing a draft on RTI. The draft of the RTI Act was published in different newspapers and posted in the website for wider dissemination and for receiving inputs from the public. In March, 2007, the draft copy was submitted to the law, justice and Parliamentary affairs and information Adviser for its review and consideration. In March 2008 before finalizing the draft, the Information Ministry organized a roundtable meeting with academicians, media professionals and NGOs to share the draft and get their inputs. It was also posted on the Ministry’s website for getting comments and inputs from public. In June 2008, the council of advisors approved the draft in principle. This council approved the ordinance on 20 September 2008. Finally, on March 29, 2009 the bill was enacted in Parliament as Right to Information Act, 2009. This was the result of intense advocacy by civil society, media persons, academics and human rights organizations plus the commitment of the present government which came to power on December 29 2008 and the latest caretaker government.
Support: In the process there was support from the intellectuals, think tanks and professionals which gave a momentum to the process of enactment of the Act.
Outputs: Decisions & Actions from the Government
As a part of reform initiative the latest Caretaker Government facilitated the process of the enactment of this Act. The Immediate past Caretaker Government (CTG) deserves our congratulations for passing the Right to Information bill and thanks must go to others who had been relentlessly pursued this matter. The present Government will be fortunate enough, if they can use the tool (the RTI Act-2009) as a means to achieve Good Governance by combating corruption and other irregularities. The CTG have done a good job. As they came in power with a reform initiative, it was possible for them to do. Against the backdrop of a longstanding demand they took the initiative to formulate the RTI Act as part of its institutional reforms. After an eight –member Government –formed body prepared a primary draft in February; opinions from different stakeholders were sought before the Information Ministry submitted it to the cabinet on June 18 when it approved it in principle. RTI Act-2009 came into effect with the Government publishing a gazette notification on 20 October, 2008. And finally the widely discussed RTI Act-2009 passed in the ninth parliament on 29 March 2009. However people waited 90 working days before they can use the law to get information. This law became effective from the 1st July, 2009. This decisions or actions are the output of the demands and support from external and internal environment. Before enactment of the law a prior action of the government which facilitates the process was the provision of the Citizen Charter in Government offices.
2.4 Citizen Charter: A prior Action in Implementing RTI
A Citizens’ Charter represents the commitment of the Organization towards standard, quality and time frame of service delivery, grievance redress mechanism, transparency and accountability. The main objective of the exercise to issue the Citizen’s Charter of an organization is to improve the quality of public services. This is done by letting people know the mandate of the concerned Ministry/Department/Organization, how one can get in touch with its officials, what to expect by way of services and how to seek a remedy if something goes wrong. The Citizen’s Charter does not by itself create new legal rights, but it surely helps in enforcing existing rights through recognizing the access to information. The concept of Citizen’s Charter enshrines the trust between the service provider and its users. The concept was first articulated and implemented in the United Kingdom by the Conservative Government of John Major in 1991 as a national programme with a simple aim: to continuously improve the quality of public services for the people of the country so that these services respond to the needs and wishes of the users. Recently in 2007, the Government of Bangladesh has directed all the public organizations to establish their own citizen’s charter and act accordingly. That was a very positive stepping towards access to information. At present almost all of the public bodies and offices/ agencies have established their citizen’s charter with their own vision, corporate mission, objectives, performance indicators and performance measurements, industry norms, areas of service provided, expected role of the concerned service recipients etc. The basic objective of the Citizen’s Charter is to empower the citizen in relation to public service delivery. The six principles of the Citizen’s Charter are
(i) Quality: Improving the quality of services;
(ii) Choice: Wherever possible;
(iii) Standards: Specifying what to expect and how to act if standards are not met;
(iv) Value: For the taxpayers’ money;
(v) Accountability: Individuals and Organizations; and
Citizen charter is the first step in implementing citizen friendly governance and people’s access to information. Thus it works as a foundation stone in exercising Right to Information for ensuring transparency and accountability in public administration.
2.5 Policy of the Political Regime
The newly elected government worked on the basis of the RTI ordinance issued by the caretaker government. If election manifesto and political pledge make any sense, the adoption of the RTI Act 2009 is an evidence of the delivery of a government commitment. There is no doubt that demand and advocacy from outside the government played an important role in bringing about the enactment, but the priority given to the Act for adoption in the parliament indicates that the government wanted to be faithful to its electoral commitment. Right to information occupied a key position in the process building up to the national election to the 9th parliament held on December 29, 2008. All major political parties including the two major electoral alliances led by the ruling Bangladesh Awami League (AL) & Bangladesh Nationalist Party (BNP) respectively recognized the importance of the RTI. The AL in particular committed in its election manifesto to ensure people’s right to information, so did the BNP, through the former was specific about it. RTI was also prominently at the core of public discourse & demand, media reports & commentaries.
A close look at the AL manifesto for the 9th parliament elections makes it easy to realize how RTI was dovetailed with it’s commitment to promote good governance & control corruption. In addition to specific commitment to ensure right to information, at least 13 more specific commitments stand out that can contribute to the creation of institutional & policy structures facilitating people’s RTI. These are:1) making the parliament effective so that the govt. can be held accountable, 2) annual disclosure of wealth statement & source of income of the Prime Minister, members of the Cabinet, parliament members & their family members, 3) ensuring genuine independence & impartiality of the judiciary & the rule of law; 4) effectiveness & independence of the Anti-corruption Commission; 5) administrative reform to make it pro-people & free from politicization; 6) efficiency & merit to be established as the basis of appointment & promotion in public service, & curtailing the discretionary powers of officials; 7) e-governance ; 8) police & other law enforcing agencies to be kept above political influence; 9) competitive market system in commerce & industry to be established by eliminating bribery & administrative difficulties & breaking the state or private monopoly, 10) strong measures against those having unearned & black money, loan defaulters, tender manipulators,& users of muscle power in every stage of state & society; 11) effective Human Rights Commission; 12) appointment of Ombudsman; 13) introduction of Citizens Charter in every department & widespread computerization. The key first step towards implementing the RTI-generating the political will-therefore appear to have been taken (Iftekharuzzaman, 2009:6). So the commitment of the political regime can contribute to the creation of institutional & policy structures through facilitating people’s Right to information.
Enactment of the RTI law is the first move towards ensuring people’s Right to Information. As there was demand for the enactment, now emphasis should be on proper implementation. Effective implementation and proper use of the law needs deep insight, proper knowledge and awareness. A deep insight or in depth analysis of the Act is necessary for its implementation. The effectivity of the Act depends on the wide use of the Act. The people belongs to all class of the society should come forward to use the Act. From the capital city to remote village this law needs to be used. In popularizing the Act, the forces which played important role in the formulation of the Act should have more contribution than ever before. Whether domestic laws genuinely permit access to official information or not-to measure that Article 19 of UDHR (United Nations Declaration on Human Rights) has produced a set of International principles. As the external environment is influential in creating a demand for this right in Bangladesh, this Act should have an international standards and practice by which governments can achieve maximum openness, in line with the international principles.
When countries pass access to information laws, they join an international bandwagon, one that has gathered great momentum in recent years. But the international experience shows that for an access to information law to work well in practice and to be useful to both government and citizens and their civil society organizations, it should meet a number of key principles. In this chapter I will discuss the principles and investigate them whether the RTI Act -2009 comply with International Principles or not and the extent of the compliance. I will also focus on the International scenario of The RTI law. By examining the RTI Act-2009 with these following international principles I will try to find out the inadequacies of The Act, 2009 at the same time the ways for getting maximum output from this Act will be explored. Firstly, I will discuss the principles and then its applicability in Bangladesh context
3.1 International Principles
Article 19 0f UDHR seeks to achieve its mission by strengthening the legal, institutional and policy frameworks for freedom of expression and access to information at the global, regional and national levels, including through the development of legal standards. That is why ARTICLE 19 has produced this set of international principles – to set a standard against which anyone can measure whether domestic laws genuinely permit access to official information. They set out clearly and precisely the ways in which governments can achieve maximum openness, in line with the best international standards and practice (ARTICLE 19, 1999:1-19). These International Principles set out standards for national and international regimes which give effect to the right to freedom of information. They are designed primarily for national legislation on freedom of information or access to official information but are equally applicable to information held by inter-governmental bodies such as the United Nations and the European Union. The Principles are based on international and regional law and standards, evolving state practice and the general principles of law recognized by the community of nations. The international principles are as follows:
1) Freedom of information legislation should be guided by the principle of maximum disclosure. The principle of maximum disclosure establishes a presumption that all information held by public bodies should be subject to disclosure and that this presumption may be overcome only in very limited circumstances. This principle encapsulates the basic rationale underlying the very concept of freedom of information and ideally it should be provided for in the Constitution to make it clear that access to official information is a basic right. The overriding goal of legislation should be to implement maximum disclosure in practice. Both ‘information’ and ‘public bodies’ should be defined broadly. ‘Information’ includes all records held by a public body, regardless of the form in which the information is. ‘Public body’ should include all branches and levels of government including local government, elected bodies, bodies which operate under a statutory mandate, nationalized industries and public corporations, non-departmental bodies or quasi non-governmental organizations, judicial bodies, and private bodies which carry out public functions .
2) Public bodies should be under an obligation to publish key information. Freedom of information implies not only those public bodies accede to requests for information but also that they publish and disseminate widely documents of significant public interest, subject only to reasonable limits based on resources and capacity. The law should establish both a general obligation to publish the following categories of information:1)operational information about how the public body functions, including costs, objectives, audited accounts, standards, achievements and so on, particularly where the body provides direct services to the public; 2)information on any requests, complaints or other direct actions which members of the public may take in relation to the public body; 3) guidance on processes by which members of the public may provide input into major policy or legislative proposals; 4)the types of information which the body holds and the form in which this information is held; and 5)the content of any decision or policy affecting the public, along with reasons for the decision and background material of importance in framing the decision.
3) Public bodies must actively promote open government. Informing the public of their rights and promoting a culture of openness within government are essential if the goals of freedom of information legislation are to be realized. Indeed, experience in various countries shows that a recalcitrant civil service can undermine even the most progressive legislation. Promotional activities are, therefore, an essential component of a freedom of information regime.
4) Exceptions should be clearly and narrowly drawn and subject to strict “harm” and “public interest” tests.All individual requests for information from public bodies should be met unless the public body can show that the information falls within the scope of the limited regime of exceptions. A refusal to disclose information is not justified unless the public authority can show that the information meets a strict three-part test.
· the information must relate to a legitimate aim listed in the law;
· disclosure must threaten to cause substantial harm to that aim; and
· the harm to the aim must be greater than the public interest in having the information.
5) Requests for information should be processed rapidly and fairly and an independent review of any refusals should be available. A process for deciding upon requests for information should be specified at three different levels: within the public body; appeals to an independent administrative body; and appeals to the courts. Where necessary, provision should be made to ensure full access to information for certain groups, for example those who cannot read or write, those who do not speak the language of the record, or those who suffer from disabilities such as blindness. The law should provide for strict time limits for the processing of requests and require that any refusals be accompanied by substantive written reasons
6) Individuals should not be deterred from making requests for information by excessive costs. The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants, given that the whole rationale behind freedom of information laws is to promote open access to information. It is well established that the long-term benefits of openness far exceed the costs.
7)Meetings of public bodies should be open to the public. Freedom of information includes the public’s right to know what the government is doing on its behalf and to participate in decision-making processes. Freedom of information legislation should therefore establish a presumption that all meetings of governing bodies are open to the public.
8) Laws which are inconsistent with the principle of maximum disclosure should be amended or repealed. The law on freedom of information should require that other legislation be interpreted, as far as possible, in a manner consistent with its provisions. Where this is not possible, other legislation dealing with publicly-held information should be subject to the principles underlying the freedom of information legislation. The regime of exceptions provided for in the freedom of information law should be comprehensive and other laws should not be permitted to extend it. In particular, secrecy laws should not make it illegal for officials to divulge information which they are required to disclose under the freedom of information law
9) Individuals who release information on wrongdoing –whistleblowers must be protected. Individuals should be protected from any legal, administrative or employment-related sanctions for releasing information on wrongdoing. “Wrongdoing” in this context includes the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or serious maladministration regarding a public body.
3.2 Compatibility with International Principles
Accordingtothe principle one maximum disclosure is not followed totally inThe RTI Act 2009. Because Union Paris ad which is the lowest tier of local Government in Bangladesh is not included in the Act as a ‘unit providing information’. This means that we are ignoring the right to information of the poor mass people, which will lead to corruption and irregularities in this tier of local Government.
Principle two categorizes information which includes operational information about how the public body functions, including costs, particularly where the body provides direct services to the public. But the functional cost and where the body provides direct services to the public is not clearly stated in this Act, 2009.
Accordingtothe Principle three there is number of clauses for promotion of open Government inThe RTI Act, 2009. But civil service was not given sufficient focus as a key factor for promoting the goals of the legislation.
The list of exemptions is too long. The categories like “dignity,” “foreign policy” are likely to become a major impediment towards free flow of information. Principle four says that no public bodies should be completely excluded from the ambit of the law, even if the majority of their functions fall within the zone of exceptions but in article 32 there is provision of inapplicability of this Act in case of some listed organizations like National Security Intelligence (NSI) Rapid Action Battalion (RAB) Criminal investigation Department (CID) etc.
Principle five is followed in this Act. Principle six stated about not to impose excessive cost. But there is no provision of how much cost will be fixed up – in this Act. According to principle seven there is no provision for open meeting arrangement in The RTI Act, 2009.
According to principle eight there is problem regarding the primacy of the RTI Act, 2009. The article 3(a) of this act stated that after entry into force,the provisions of this Ordinance shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force. But at the same time there is redundancy with article 3(b) with 3(a) in this act.
The matter of whistleblowers protection is not reflected in anywhere of the act. But in a country like Bangladesh where corruption is deeply rooted in administration, this provision can be a necessary tool in preventing corruption. Principles are important as standards but on their own they are not enough. They need to be used – by campaigners, by lawyers, by elected representatives and by public officials. They need applying in the particular circumstances that face each society, by people who understand their importance and are committed to transparency in Government. These principles will contribute in improving governance and accountability and strengthening democracy in Bangladesh if Government follows the international principles not partially but fully.
Requirements by Article 19:
ARTICLE 19, Global Campaign for Freedom of Expression aims to contribute to the process of developing a law which will ensure the right to information in accordance with international standards. The draft Law includes a number of positive features while, at the same time, there are a number of areas where further improvement is possible. Positive features in the draft Law include the fact that it overrides inconsistent provisions in other laws, and specifically in the Official Secrets Act 1923; it provides protection against liability for civil servants implementing its provisions; and it provides for an independent and high-level Information Commission with broad powers to remedy failures in implementation. At the same time, the draft Law could still be further improved. The main concerns of Article 19’s are as follows:
a. The right of access is limited to citizens, instead of applying to everyone, and the openness obligations do not apply to legislative, judicial and constitutionally established bodies.
b. The proactive publication obligations are too limited, both as to the scope of information covered and as to the means by which this information is to be disseminated.
c. The regime of exceptions is too broad. It contains some exceptions which are not legitimate, it lacks a consistent standard of the harm and the rules for providing information in the public interest notwithstanding an exception are weak.
d. The measures to protect the independence of the Information Commission could still be further improved, for example by replacing the Cabinet Secretary from the process, and by providing for greater civil society input and by further limiting the conditions for removal of the members.
e. The package of promotional measures could be further improved, for example by allocating a wider promotional role to the Information Commission, including through the dissemination of a public guide on how to use the law, and by imposing specific training obligations on public bodies. (ARTICLE 19/IFEX, 3April 2008,Internet) ARTICLE 19 and its partners encourage the Bangladeshi authorities to revise the draft Law to bring it more fully into line with international standards, with a view to promoting a progressive right to information system in Bangladesh. So to make the Act 2009 as a progressive one, a compatibility with international principles is needed.
3.3 Global Scenario of Right to Information
Fig-3 Freedom of Information laws around the world
Green/Dark areas represent countries enabled with Freedom of Information Laws. Yellow/Lightly shaded areas represent countries where laws are pending. (Copyright privacy International, September 2001)
Passage and implementation of an access to information act has become a trend throughout the world, since the end of the Cold War. There are now almost 72 countries with the statutory right to information, many of them enacted in the last decade. The above depiction very vividly portrays the status of The Freedom (to) or Right (of) Information. Transparency and Freedom of Information has made such robust inroads in two Southeast Asian nations that it cost Joseph Estrada his job as president of the Philippines five years ago, and it almost sparked the demise of Thailand’s then Prime Minister, Thaksin Shinawatra, shortly after he came to power in 2002. In both cases, corruption allegations unearthed through transparent government policies or freedom-of-information laws were central to the controversies. U.S. and Canada adopted access laws in 1966 and 1983.Nearly all Central and Eastern European countries have adopted laws as part of their democratic transitions. Nearly a dozen Asian countries have either enacted laws or are on the brink of doing so. Similarly, in South and Central America, nearly a dozen countries are considering laws. Africa is also catching up. Many countries in southern and central Africa are following South Africa’s lead, with varying proposals for formulating freedom of information laws.
The mere existence of an information act, however, does not always mean that access is possible. A good information access law provides for an independent appellate mechanism that a citizen can access in order to seek redress of his/her grievances in matters relating to disclosure of information by public authorities.
The right to freedom of information is founded on the idea that public bodies hold information not for themselves but on behalf of the public. Such laws should flow from the principle of maximum disclosure, whereby all information should be subject to disclosure unless there is an overriding public interest in secrecy. A number of key elements must be present in a law if it is to promote the principle of maximum disclosure. It should include broad definitions of both the scope of information and public bodies, consistent with its underlying purpose. It should also set out clear, user-friendly processes for the exercise of the right, as well as a right to appeal any refusal to provide information to an independent administrative body and from there to the courts.From analyzing the International principles of RTI and then to international scenario of the RTI, I will make a comparison with International context specially by giving a focus on the law of India & U.S.
Right to Information Act is a new experience for Bangladesh, and it may be well for the country to draw upon the experience of the neighboring and other developed country like India & U.S. in where such an Act is already in place and is being implemented fully, in applying provisions of the Act. So a comparison will be made among India, U.S. and Bangladesh by looking at the commonalities and differences of the Right to Information Act to get some indications to make RTI Act-2009 more effective. In this chapter I will make a comparison with India first by looking at the commonalities and differences with their RTI Act and then I will also come across The Freedom of Information Act (FOIA) of U.S.
4.1 A Comparison with India
The Right to Information Act 2005 enacted by the Parliament of India giving citizens of India access to records of the Central Government and State Governments. Under the provisions of the Act, any citizen may request information from a “public authority” which is required to reply expeditiously or within thirty days. The Act also requires every public authority to computerize their records for wide dissemination and to proactively publish certain categories of information so that the citizens need minimum recourse to request for information formally. This law was passed by Parliament on 15 June 2005 and came fully into force on 13 October 2005.
Disclosure of government information in both the countries like India and Bangladesh is governed by the same law like official Secrets Act 1923, Evidence Act, Civil Service Conduct Rules. So there are many commonalities between these two countries Right to Information Act. There are commonalities in the areas like definition of Information, time limit to get the information, ground for rejection, term of office and other service conditions of chief information commissioner, the list of exemptions which is more or less common and in the role of the Government.
In India Central Information Commission constituted of one Chief Information Commissioner and 10 Information Commissioners, total 11. But in Bangladesh it is only three, one Chief Information Commissioner and two Information Commissioners. So it would be difficult for those three people to make hearing of all the appeals. In case of Bangladesh one important thing is that among two Information Commissioners one is lady, this is a good thing. In the process of appointment of Chief Information Commissioner and Information Commissioners India includes Prime Minister as a (Chair) but Bangladesh doesn’t have Prime Minister in the process of appointment. There are differences in the provision of the salary of the Information Commissioners. In Bangladesh the Government will fix up the salary and other remuneration of them. But in case of India the salary of the Chief Information Commissioner will be the same as that of an Election Commissioner and the salary of the State Information Commissioner will be the same as that of the Chief Secretary of the State Government.
Regarding the fees for information there are a little difference between India and Bangladesh. In India it is said that no fees will be charged from people living below the poverty line and applicant must be provided information free of cost if the Principle Information Officer fails to comply with the prescribed time limit. There are differences regarding the power and functions of Information Commissions. In India power to secure compliance of its decisions from the public authority includes the following things which The Information Commissions of Bangladesh don’t have. The things are:
· directing the public authority to appoint a PIO(Principal Information officer)/APIO( Assistant Principal Information officer) where none exists
· publishing information or categories information
· making necessary changes to the practices relating to management , maintenance and destruction of records
· seeking an annual report from the public authority on compliance with this law
· enhancing training provision for officials on RTI
· require to compensate for any loss or other detriment suffered by the applicant
· impose penalties under this law or
· reject the application
In the first year of National RTI, 42,876 applications for information were filed to Central public authorities. Of these 878 were disputed at the final appellate stage – the Central Information Commission at New Delhi. To avoid that kind of problem Bangladesh government can follow the principle of maximum disclosure that means all information held by public bodies should be subject to disclosure and Government should publish that information without any request from the citizens.
There have been questions on the lack of speedy appeal to non-compliance to requests. The lack of a central PIO makes it difficult to pin-point the correct PIO to approach for requests. There is also a criticism of the manner in which the Information Commissioners are appointed to head the information commission. It is alleged by RTI Activists that bureaucrats working in close proximity with the government are appointed in the RTI Commissions in a non-transparent manner. The PIO, being an officer of the relevant Government institution, may have a vested interest in not disclosing damaging information on activities of his/her Institution, This therefore creates a conflict of interest. In the state of Maharastra it was estimated that only 30% of the requests are actually realized under the Maharashtra Right to Information Act. The law does not allow disclosure of information that affects national security, defence, and other matters that are deemed of national interest.(Source: Source watch Encyclopedia)
Having all those criticism, the Right to Information Bill in India is treated as a radical measure and contains clear rights for those requesting information and has in place a strong enforcement mechanism. Under the Act, information concerning the life, liberty of a person is required to be provided within 48 hours, and other information is to be provided within 30 days. The most commendable part of the act is the enforcement mechanism.
Lessons from Comparative Study
From a comparative study between The Right to Information Act of India and Bangladesh signal for effective implementation of he RTI Act-2009 in Bangladesh context became apparent . But in case of both countries harmonizing existing laws with the RTI Act is needed. The experience of several countries indicates that in the absence of a provision that gives an overriding effect to the RTI Act over all other laws, conflicts are bound to arise between the transparency requirements in the RTI Act and the provisions in other laws aimed at granting secrecy to certain records or operations of government. So to undertake a comprehensive review of all laws on the statute book in the light of the transparency imperatives established by the RTI Act is a must. An independent judiciary of Bangladesh can provide the ray of hope in the midst of darkness, just like India.
4.2 Comparison with the U.S.
Freedom of information legislation represents the foundational right-to-know legal process by which requesters may ask for government held information and receive it freely or at minimal cost, barring standardized exceptions. Also variously referred to as open records or sunshine laws where governments are also typically bound by a duty to publish and promote openness. Freedom of Information legislation in U.S. was signed by President Lyndon B.Johnson, in September1966 (Public Law 89-554, 80 Stat. 383; Amended 1996, 2002, 2007), and went into effect the following year. This Act allows for the full or partial disclosure of previously unreleased information and documents controlled by the United States Government. The Act defines agency records subject to disclosure, outlines mandatory disclosure procedures and grants nine exemptions to the statute. The law, by coincidence, was ratified in 1966, 200 years after what is believed to be the first Freedom of Information Legislation, Sweden’s Freedom of the Press Act, in 1766.
This Act is applicable to government agencies. ‘Agencies’ include the whole executive arm of the state as well as military department, government corporations and government controlled corporations and any independent regulatory agency. The Act begins with the obligation on the government agencies to publish (in the Federal Register) information about the organization of the agency; functions; procedure; the persons/officials from whom information can be collected; the availability of forms; the scope of information available; the substantive rules and statements of general policy or interpretations of general applicability adopted by the agency and amendments thereof. There is a duty on the agencies to provide certain documents for public inspection and copying. This includes final opinions; any other statements of policy or interpretation not published in the Register; staff manuals and instructions that affect public and indexes. The agencies are obligated to provide records not included in the above categories, upon request which reasonably describes the record. The request has to be in accordance with the rules in place regarding time, place, fees and procedure to be followed. The Act contains minimum tests for fees. Fees have to be limited to reasonable standard charged for search, duplication and review when requested for commercial use. Fees can be wavered or reduced where it can contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. Government agencies must respond in 20 working days.
There are nine categories of exemptions, including national security, internal agency rules, information protected by other statutes, business information, inter and intra agency memos, personal privacy, law- enforcement records, financial institutions and oil wells data. Appeals of denials or complaints about extensive delays can be made internally to the agency concerned or to the federal courts. (Banisar, 2002:43) There are perhaps thirteen primary issues which govern the citizen’s right over information: secrecy, privacy, confidentiality, publicity, commerciality, accessibility, reciprocity, integrity, interoperability, responsibility, liability, commonality and equity. How many of these issues apply to government is debatable, for it may be argued that all government rights are secondary to the public interest. However, the FOIA addresses issues concerning retention of certain information in its exemptions. Whether these exemptions are abused by government is hotly contested by a mix of advocates drawn from both government and citizenry. The U.S. FOIA, which is 40 years old, “is plagued by chronic backlogs, unjustified rejections and inconsistent responses, according to interviews with open government advocates and lawmakers and a new study by the National Security Archive,” reports the Austin American-Statesman.(Source: Sourcewatch, Encyclopedia). As a result The Electronic Freedom of Information Act Amendments were signed by President Bill Clinton on October 2, 1996. ’The statement issued by President Clinton upon signing the 1996 FOIA amendments into law on October 2, 1996 are as follows: ‘The legislation I sign today brings FOIA into the information and electronic age by clarifying that it applies to records maintained in electronic format. This law also broadens public access to government information by placing more material on-line and expanding the role of the agency reading room. As the Government actively disseminates more information, I hope that there will be less need to use FOIA to obtain government information’
Agencies submit an annual report to the Speaker of the House of Representatives and President of the Senate, detailing number of refusals with reasons thereof; the number of appeals and their results with reasons where disclosure confirmed; the names and titles of persons responsible for denial of request and the instances of participation for each person; report of disciplinary action taken against an officer or employee primarily responsible for improperly withholding records; copy of every rule and fees schedule made by the agency; fees collected and any other efforts to administer the Act fully. The Attorney general has to make an annual report on the cases arising under the Act, the matter of each case, the deposition of such case, the cost, fees, and penalties assessed under the concerned sections. (Source: Website, Welcome to National Campaign for People’s Right to Information (NCPRI), India). The FOIA applies only to Federal Agencies (All agencies of the government). However, all of the states, as well as the District of Columbia and some territories, have enacted similar statutes to require disclosures by agencies of the state and of local governments, though some are significantly broader than others, many combine this with open mettings laws, which require government meetings to be announced in advance and held publicly.
Recently the U.S. legislation has extended their time for delivering information up to 20 days, which is a common picture with Bangladesh. There are some commonalities in list of exemptios but our list of exemptions is too long than other countries. Commonalities are few than differences.
TheRTI Act-2009 is a uniformed one in nature but the U.S. Freedom of Information Law has weakness in uniformity.All 50 states, the District of Columbia, and some territories have some form of freedom of information legislation. Among the most extensive are Florida’s Sunshine Laws<href=”#_ftn1″ name=”_ftnref1″ title=””>. In 2002, Investigative Reporters and Editors, in conjunction with the Better Government Association, conducted a comparison of the relative strengths of each state’s open records laws. Their overall conclusion noted, “Unfortunately, state FOI laws have proven to be almost uniformly weak and easy to undermine. The uniformity of our law can be a strength in our case. The ‘Electronic Freedom of Information Act Amendments of 1996’ is a unique feature of U.S. law which reforces an important link between the United States Government and the American people for making government more accessible than ever.
Lessons from Comperative Study
The U.S. FOIA is the most heavily used access law in the world. The U.S. government last year processed more than two million requests under the FOIA. Among many other news-making releases this year, for example, an environmental group won a federal judge’s decision under the FOIA to obtain documents on the Bush administration’s energy policies that Vice President Cheney had vowed to withhold. Electronic application of the law can be a lesson for Bangladesh. The fundamental determinant of successful FOIA implementation in the United States has been agency culture.<href=”#_ftn2″ name=”_ftnref2″ title=””>
So, the lesson from the U.S. experience for new implementers of FOIA laws is that the key factor in setting agency culture3 on FOIA is the top official assigned to implement the law, and the reinforcing mechanisms for the bureaucrats who process FOIAs. In U.S. a civil servant worked in the Health and Human Services Department (HHS), named Russell Roberts used the new law both to protect his own integrity against political appointees above him, and to build constituencies outside the agency for more accountability. Roberts created a ‘FOIA career ladder’ at HHS, in which could rise to the highest level of the civil service just by superior performance in handling FOIA requests and managing efficient FOIA processes. Through salary increases and promotions based on FOIA work, HHS developed a series of widely-admired FOIA officers who served as models for other agencies. Roberts ultimately founded a professional association for government FOIA officers, the American Society of Access Professionals (ASAP), to train each other in best practices and advance the status of FOIA officers. I am proud to be a member and a former elected officer of ASAP, and it is time that the Society lived up to its name as an ‘American’ organization, by helping government officials, journalists and civil society create fraternal societies in each country in the hemisphere. “The U.S. FOIA provided the leverage that compelled the State Department to release 4,667 previously secret documents on the ‘dirty war’ in Argentina.”(Access to Information Americas, A conference paper in Inter American Dialogue: 2003, 31-33) So a professional association for government FOIA officers, like U.S. can boost up the motivational level of our officers.
A Comperative Table of exemptions among Bangladesh, India & U.S is given below. This table compares the main exceptions of the three countries like India, Bangladesh & U.S. Each box in the table contains two different types of information. First, provides the test used to determine whether information falling within the scope of an exception may be withheld, which may be referred to as the ‘harm test’. For example, in some cases information may be withheld only if it is reasonably expected to harm the protected interest, or it if is likely to cause prejudice to it. In some cases, no harm is required (i.e. the law establishes a class exception in relation to a whole category of information). In that case, the table indicates that there is “no harm test”. Then, each box sets out the elements which make up the exception and which effectively define its scope in the relevant jurisdiction. Each box also provides a reference to the section, article or paragraph of the law/policy where the exception in question is found. In some cases, the law in question does not contain the exception being considered, in which case this is stated in the table. In other cases, the exception effectively included within the scope of other exceptions. In this case, the table notes in the appropriate place that there is no separate exception.
Comparative Table of Exceptions
– no harm test Elements:
– likely to be published within 30 or already
published (9(b) and (c))
– no harm test Elements:
– likely to be published withinsix months after the Act comes into force and thereafter on a periodic basis,not less than once every two years 4(1)
|National Security||Test: – prejudicially affect Elements: – sovereignty and integrity, security of the State, strategic scientific or economic
|Test: prejudicially affect
Elements: – sovereignty and integrity, security of the State 8(b)
|Test: – classified in the interest of classification specifically authorized and properly classified under an Executive
Order Elements:– national
defense Test:– classified
FBI records Elements: – pertaining to foreign intelligence or international
|International Relations||Test: – prejudicially affect Elements: – conduct of international relations (8)(a))||Test: – prejudicially affect
Elements: – conduct of international relations 8(b)
|Test: – classified in the interest of – classification specifically authorized and
under an Executive
– foreign policy ((b)(1))
|Economic Interests||– Trade or commercial secrets protected by law or information, the disclosure of which would prejudicially
-legitimate economic and
commercial interests or the
competitive position of a
public authority (8(f))
information including commercial confidence, trade secrets or intellectual property 8(d)
|– no harm test Elements: – related to examination or operating reports of an agency responsible for financial
|Law enforcement||Test various Elements: – prejudicially affect order, detection and investigation of an offence – may lead to an incitement to commit an offence – prejudicially affect fair trial