All countries in South Asia have the right to freedom of speech and expression guaranteed as a fundamental right under the Constitution. The courts have read the right to information into these provisions as well as those pertaining to the right to life and personal liberty. The pronouncements, however, have largely been obiter dicta. The presence of laws like the Official Secrets Act and other measures for 'national security' severely conflict with the citizens' right to information and have entrenched the culture of secrecy and a reluctance on the part of public officials to give information.
The Constitutions provide a logical starting point and legitimacy to the struggles and movement for the right, as has happened in India. It is difficult for any government to outrightly deny the right. In India, though the development of the right started from judicial verdicts in cases involving the freedom of the press, it went on to cover instances of access to environmental records and access to information in cases of civil liberties such as media's access to prisoners and the police's duty to give timely and correct information regarding arrest and detention of people. In one case,1 the Judges remarked, "Freedom of Speech and Expression includes within its compass the right of all citizens to read and be informed. " This principle was even more clearly enunciated in a later case 2 where the court remarked, "The basic principle of Freedom of Speech and Expression is that all members should be able to form their beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the peoples' right to know. " These cases echo the development of the right to information in Western countries, where the roles and the freedom of the press also started the development of the right for the public.
The Supreme Court of India has however gone much further. In the area of civil liberties, it built up the right to have a transparent criminal justice system free from arbitrariness. Procedural safeguards for arrest and custody given in a recent case 3 translate into the right of the accused or his kin to have access to information regarding his arrest and detention such as preparation of a memo of arrest to be counter-signed by the arrestee and a relative or neighbor, preparation of a report of the physical condition of the arrestee, recording of the place of detention in appropriate registers at the police station, display of details of detained persons at a prominent place at the police station and at the district headquarters, etc. Developments in administrative law also strengthened the right. In a case calling for the disclosure of documents pertaining to the security arrangements and expenses of the then Prime Minister of India, the Supreme Court said, "While there are overwhelming arguments for giving to the executive the power to determine what matters may prejudice public security, those arguments give no sanction to giving the executive exclusive power to determine what matters may prejudice the public interests. Once considerations of national security are left out, there are few matters of public interest which cannot be safely discussed in public. " Justice K. K. Mathew went further to say, "In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearings. The responsibility of officials to explain or to justify their acts is the chief safeguard against oppression and corruption. " 4
Nepal has the right to information guaranteed as a fundamental right in the Constitution but it has not been in much use due to ignorance of the people about their rights. Courts appear to be doing a 'tango' over the issue - one step forward and two steps backward. While in some cases access to official records has been denied, in others, such as in the case of development projects, the information related to them has been declared to be of public importance and therefore must be released. The debate there is, whether a legislation would curtail the right or enhance it. In Sri Lanka, as in India, right to information is now an established fundamental right and is perceived even by the courts as being a part of the right to freedom of speech and expression. As of now, if a person is refused information the only remedy for him or her would be to approach the courts to enforce the right. But the right has not percolated down to the masses because of lack of rights awareness coupled with inaccessibility of courts to the lay person.
Even though the derivation of the right to information is very important and must be a sine qua non, we still need detailed legislation, which spells out detailed instructions for implementation. Legislation is needed not so much to create a right, but to create systems in which the right can become meaningful without recourse to constant litigation.
In India, Pakistan and Sri Lanka, there have been, in the past few years, attempts by civil society groups to provide government with a blueprint for a right to information legislation. In Pakistan, the draft ordinance was passed in a highly watered down form by the caretaker Leghari government and then allowed to lapse by the new government. The Ordinance suggested by civil society groups had to fail through bureaucratic resistance because it gave broad access to bureaucratic decision-making or discretion on questions of loans and exposed loan defaulters. It provides that everything should be made available to the public. There are punitive measures and fines for officials who wrongly withhold information. These measures significantly curb the Official Secrets Act. Discretionary powers would be controlled and scrutinized. It also lays down rules on who would hold and manage information.
In India there are at least three different suggested models. Of these, one (referred to as the "Shourie draft") was drafted by a Governmental Committee set up in 1997. It is severely lacking in accountability provisions and leaves many loopholes for denial of information rather than enabling people to get information. Either way, governments since then have been ignoring the issue and have been reluctant to give any strong commitment on passing the legislation. Three states in India 5 have passed laws on right to information while others have tried to enforce it in some form through executive instructions and guidelines. All these leave much to be desired since they have large gaps in accountability and lack teeth to make them effective.
In mid-1997 the chief minister of the Indian state of Goa announced that his government would soon introduce right to information legislation. Goa's activists and press corps were caught off-guard. Rarely are any public or wide consultations done on what should go into laws regarding this issue, and neither deliberations nor recommendations ever sufficiently publicized. Civil society groups must be aware that these processes contain their own seeds of failure. Eventually, after amendments were made, in early 1998, Goa enacted a law explicitly guaranteeing a right to information. Though organizations have been slow to respond, a wide array of individuals have sought to assert their newly confirmed right. After a year in the books, the Goa Right to Information Act (GRIA) has generated about 400 applications for government do-cuments. Many applications are related to inquiries about potentially illegal construction. Some applications involve clearances given to polluting industries. And many are inquiries into application of licensing or taxation rules to the properties and businesses of certain individuals, presumably with a view to expose favoritism. Other requests relate to building permits and subsidies for hotels which violate planning and environmental codes, to toxic waste emitted by a zinc factory, and the role of an Indian Administration Service officer in a lottery scam. In addition, the All Goa Citizen's Committee for Social Justice and Action submitted applications for information involving cases of alleged patronage and nepotism in appointments, promotions and service conditions in higher and secondary education. Willingness to divulge this information has varied widely across the government. Some departments have not responded at all, violating the 30-day limit. Others have responded fully. There is enormous variation in charges levied for this information. Some departments have not made any charge, while others have made seemingly arbitrary and sometimes significant charges - charges for 'processing fees', for instance, or for 'the cost of arranging the inspection of documents'. One agency issued a string of objections to requests, including that the requester did not qualify as a 'citizen' under the Act, that the information requested was not clearly in the public interest, and that the information sought relates to commercial secrets protected by law. At one level, these variations are just the 'teething pains' or an administration adjusting to a new procedure. But they lend insight into what should go into a Freedom on Information (FOI) Law for India. 6
The Sri Lanka Law Commission has put forward a model legislation on Access to Information which is 'weak and insipid' and needs a lot of strengthening to be effective. Not only does it state that Sri Lanka must approach the right to information 'incrementally', it is also not overarching and does not nullify restrictions on access contained in other laws. The lists of exceptions are long, and there is no test for deciding whether restricted information should be released in the public interest, nor does the draft contain any punitive measures for withholding information. The Minister has the power to draft the procedure by which information is given and this does not need to be ratified by Parliament.
In Nepal, certain laws like the Essential Services Act are in conflict with the right to information guaranteed in the Constitution. So the debate is on whether or not legislation on the right will further curtail it. Another view is that one should try to legislate the right in any case. In Bangladesh too, laws come into conflict with each other and restrict release of information. These conflicts of interest have to be resolved by a clear right to information legislation.
This leads to the question of desirable features of a right to information law. In the international arena, Sweden was the first to enact a Freedom of Information law. In the West, too, the right was enunciated in terms of the rights of free speech and expression, especially that of the press. The phrase 'freedom of information' originated in the United States of America. It is widely believed that the US has one of the most open and transparent systems of government. In enacting a law, however, it was suggested that certain basic principles must form the basis of any legislation, drawing upon the experience of other countries. 7 Accordingly, the main tenets should be:
- Strong pro-disclosure requirements
- Partial retrospectivity
- Reasonable response time
- Measure for urgent requests for information
- Two-tiered fee structure
- Narrowly defined exemptions
- Inclusion of private companies which should disclose information as far as they affect the public
- Appeals to an independent body
- Protection to whistle blowers
- Penalties for violation of the Act
- Publicity for the Act
- Repeal of Official Secrets Acts
- Administrative reform.
The Act must not have "gateway" provisions and must advocate freedom of information.
These tenets should be the guiding principles for drafting any right to information/freedom of information legislation in South Asia. But there can, however, be some problem areas in legislating the right, which require special attention according to the need of each country. Some of the problem areas are the following:
- The question of public versus private domains would invariably become very debatable. What will be the matters falling within the public domain which must be made accessible to people and who would decide this question? There must be an independent body to decide these questions.
- What would be the scope of protection of privacy? Should individuals have access only to private information which concern themselves? Should personal information be given only when they affect the public?
- Should exemptions be defined narrowly? Should matters about budgets and accounting systems of the state and non-state sectors be made public?
- Should the right to information extend to all the three branches of government? Should Cabinet deliberations be kept secret during the deliberations themselves but made public after decisions have been taken?
- Whether or not questions regarding economic decisions that negatively affect the economic life of a country should be made public.
- Whether or not all tenders be made public.
- Budget allocations for the enforcement of the law will be a matter of concern. The law itself should have budget allocations in it. Otherwise it would be easy for governments to subvert the right effectively by claiming lack of resources.
Developing standards for legislation and overcoming hurdles through effective advocacy is an ongoing process and needs considerable debate. A follow-up process could be initiated to develop either 'guidelines', 'models' or 'principles'. This should be combined with a focus on the social charter adopted at the 1999 South Asia Association for Regional Co-operation (SAARC) summit.
Where drafts of legislation exist, a debate should be started among the public, such as is being done by CHRI in India. To start this, one must have a draft law in hand, howsoever bad, in order to create an image in people's minds. There can be an attempt to introduce right to information as an independent parliament member's bill. Legislation should also be pushed through SAARCLAW. In Pakistan, it would be better to create a model bill and circulate it to build up public pressure on the government. The general consensus was on a slow but focused process so that the process of enacting a right to information law does not get subverted or co-opted. Developing a mass movement alongside is equally important.
A suggestion to emulate the UNHCR-initiated process of drafting the refugee law was made. An Eminent Persons Group was set up, consisting of individuals respected for the work they have done, to work on a two-pronged approach. It developed a regional charter and a national legislation. This helped to create champions for the bill and allowed for networking at the highest levels. They now have the text of a model law, incorporated critiques and revisions, and are now taking it to partners. However, it is not enough just to have a text but also to look at best practices, case law, obstacles, expenditure, cost-benefit analysis, etc. It requires collation of documents pertaining to national security and development of arguments to counter queries and doubts of the bureaucracy, which is generally the most recalcitrant.
One could show through examples how withholding and suppressing information has been detrimental to government itself and has caused disastrous consequences. This may entail commissioning the preparation of a country paper on administrative practices and institutional response in each country. India, for one, has an effective argument from the experiences of bureaucrats who introduced openness in their administrative units, or politicians who introduced transparency measures in their states.
For further information please contact: Commonwealth Human Rights Initiative, e-mail: chriall@nda. vsnl. net. in
* This is an excerpt from the conference report entitled Right to Information in South Asia, Commonwealth Human Rights Initiative (Delhi:1999).