Freedom of access to information in South Asia
Muhammad Zamir
IT is universally acknowledged that right to information is not only a fundamental right but also a means to power. This enables individuals and institutions to make appropriate choices and also to meaningfully participate in the decision-making process itself. It also helps governments to become more accountable, to reduce corruption and poverty and to promote democracy. It also empowers public bodies to work more transparently.
I was recently in Colombo to attend the SAARC Journalist Summit-IV and the South Asia Media Commission Conference-II as a Member of the South Asia Media Commission. Participated by over 80 journalists from all South Asian countries and representatives from the South Asian electronic media, the meeting was revealing to say the least. Repeatedly participants pointed out that not many states in South Asia have a truly functional national freedom of information law giving practical effect to the principle of right to know. Instead, most countries in the region maintain ‘colonial era Official Secrets Acts’ and other secrecy legislations that ‘actively undermine’ the process of information disclosure. It was also alleged that the problem is further compounded by the culture of secrecy that exists within the bureaucracy.
It was evident that in the public sector, access to data had become, to an extent, a method for engaging in personal enrichment. This, it was clear, was particularly true for the less developed sub-regions where poverty, illiteracy and feudalism play an important role. After debate and informed discussion, it was generally held that a right to information guaranteed in law was essential to bring about meaningful change. A consensus also emerged that, in today’s globalized world, the media’s role as a watchdog of government was essential for achieving economic and social development. In this context it was also agreed that greater efforts be undertaken to do away with laws that deny media access to information and also unduly restrict freedom of expression.
Positive elements also emerged during the discussion. Experience shared indicated that superior courts in some South Asian countries had started to recognize that right to information was a part of the constitutional guarantee of freedom of expression or thought. It was also clear that civil society groups in all countries in the region were actively engaged in demanding that governments respect the right to information and enact legislation to give effect to this.
We had responses from some who are associated with the governments in the form of public sector news agencies. There was assurance that, despite current instability in some countries (prevalence of civil war situation in Sri Lanka, unrest in the bordering regions of Pakistan, the continuing fight against the Talebans in Afghanistan and separatist insurgency in north-eastern region of India) and the prevalence of emergency in Bangladesh, governments in South Asia were slowly responding to external and internal civil society pressures and committing themselves gradually to the concept of right to information being part of fundamental rights.
Waqar Mustafa, Editor, South Asia Media Monitor, suggested in his intervention that with regard to information law, South Asia can be divided into three different categories of countries: ‘those with no or imperfect law on access to information — Afghanistan and the Maldives; those with proposal but no legislation yet — Bangladesh, Bhutan, Sri Lanka and Nepal; and those with laws but lacking their effective implementation — Pakistan and India.’ A very interesting comparison!
In the case of Afghanistan, there is apparently a lot of emphasis on national security despite the provision of Article 5 in their Right to Information draft Media Law. This has made the matter of access very complex and created procedural questions with regard to the obligation of disclosure. Precise regulatory principles are also missing pertaining to refusal and possibility of appeal from any refusal. In addition, there are also vague areas regarding management of information and promotional measures.
In Maldives, a law on press freedom, despite numerous restrictions, was adopted in August last year. However, their parliament is yet to agree on any law on access to information. A regulation of sorts pertaining to right to information has been ratified by the Maldives President through a decree on 5th May 2008, but is not expected to come into effect till 2009. In the meantime existing regulations allow an institution to refrain from stating whether information is available or not — and that includes cabinet records and information related to ‘economic stability’ (which creates scope for great subjectivity).
In Bangladesh, the current government has approved the draft ‘Right to Information Ordinance, 2008’. It is meant to ensure transparency, good governance and accountability of government institutions. It is understood that steps are also being taken to appoint a three-member Information Commission headed by a Chief Information Commissioner. Article 19 of the Ordinance also includes the positive feature whereby it can override inconsistent provisions in other laws, specifically in Official Secrets Act 1923. This is a good step forward. However, there is scope for further improvement. There appears to be some confusion whether the right to access also applies in the case of legislative, judicial and constitutionally established bodies. There is also need to introduce more measures to protect the independence of the Information Commission by associating greater input from civil society. This will make the Ordinance consistent with international standards.
Bhutan is presently going through an important process of transformation in its quest to adopting democratic governance. They still do not have any clear law guaranteeing right to information. Government authorities however agree that Bhutan needs to take the necessary steps in this direction. The fact that they understand that such a right is consistent with constitutional obligations is an important positive indication.
The Nepalese Right to Information Act 2007 adopted last year was an important step in giving practical effect to their Interim Constitution’s guarantee of the right to information. It has been a progressive piece of legislation. Nevertheless, it needs to do more to bring the engagement up to international standards. A more constructive and inter-active process within the parliament and with the civil society in Nepal will hopefully address some of the unresolved issues. I am referring here particularly to certain overrides that have been included on the basis of so-called national interest. There is also the procedural question of applicants seeking information having to submit reasons for their requests. This is not only contrary to international standards but also potentially places the burden of proof on the applicant.
In Sri Lanka, despite both major political parties agreeing on the need for a Freedom of Information Act, there are worrying signs that the government is trying to re-introduce harsh media controls to curb free flow of information. This country now is the Chair of SAARC. One can only hope that there will be more of a constructive engagement with independent media rather than against it.
The Indian RTI Act came into effect in October 2005. It is still in the process of working out the various regulatory aspects of this Act. This law has been hailed by Indian civil society because it has already helped to reduce corruption in the Public Distribution System (ration stores), in matters pertaining to providing disaster relief and constructing highways. High-profile disclosures have led to more openness and accountability. Nevertheless, there are still some areas where there could be a more effective approach. This includes the question of implementation and the lack of speedy appeal regarding non-compliance to requests.
Pakistan’s Access to Information Law, a presidential decree promulgated in 2002, is considered to lack legitimacy as it has never been debated in parliament. It is also controversial because the categories of information that can be accessed to are small and that of exempted information ‘abnormally large’. The appeal procedure in cases where information sought is not provided is also inadequate. One hopes that the present democratically elected parliament will address the various lacunas present in the provisions of the law and take remedial measures.
Total enforceable media freedom has probably not yet fully arrived. The connotations of Article 19 of the Universal Declaration of Human Rights guaranteeing freedom of expression as a fundamental right might not be completely in place. It is however clear from the above that there has been movement forward. South Asia has begun to take appropriate steps in the right direction. This will ensure better governance, safety of journalists in situations of risk and permit media to function in full security and independence.