Right to Information or Freedom of Information:

People entitled to know how tax money is spent

by Edward Ahangama

President Maithripala Sirisena in his manifesto promised to bring a bill entitled Right to Information. Karu Jayasuriya, M.P. was instrumental in bringing a legislation covering the Right to Information, but it was rejected by Parliament earlier.

Any Government with clean hands should allow easy passage to a bill giving every person right to know how the state monies are spent; otherwise the monies would definitely go into corrupt pockets.

In any country the public contribute to the taxes which may be direct or indirect. The ministers and the government officers are trustees of the public monies.

The global trend is that every person is entitled to know how these monies are spent.

This is a fundamental human right recognised under Article 19 of the Universal Declaration of Human Rights which states, "Everyone has the right to 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.”

Background

In Sweden, in the 18th century, after 40 years of battle, public access to the government documents was one of the main issues that passed with Freedom of the Press Act of 1766. This has become a powerful weapon against corruption.

The Principle of Public Access (Swedish: Offentlighetsprincipen), is a collection of rules as is commonly referred, provides access to public institutions (local, central and government controlled).

The Principle of Public Access empowers unrestricted right of access. This has become a part of the Swedish Constitution and Sweden has become the cornerstone of right to information.

The United Nations (UN) in the First Session on the 14th December 1946 adopted the Resolution 59(1) entitled “Calling of an International Conference on Freedom of Information” and declaring Freedom of Information as a fundamental human right and as the touchstone of all of all of the freedoms to which the United Nations is consecrated”.

ICCPR

The Economic and Social Council of the UN adopted in 1960 a declaration of freedom of information. In 1966, The International Covenant on Civil and Political Rights (ICCPR) was adopted by the General Assembly.

Colombia is one of the pioneering countries which allowed freedom of information under the Code of Political and Municipal Organizations (1888).

Norway in 1970 at national level passed Freedom of Information Act widening the Article 100 of the Constitution giving right of access to the documents.

The Netherlands under Article 110 of the Constitution enhanced the freedom of information.

In France, the accountability of public servants is a constitutional right, according to the Declaration of the Rights of Man and of the Citizen.

Commonwealth principles

In the United States the Freedom of Information Act was signed into law by the President on the 4th July 1966 and went into force, the following year. President Bill Clinton signed The Electronic Freedom of Information Act (Amendments) on the 2nd October 1996.

Commonwealth Law Ministers’ Barbados Communique, 1980 in paragraphs 24 and 25 concluded on the 2nd May 1980 with the following statement:

“Ministers expressed the view that public participation was at its most meaningful when citizens had adequate access to official information.

At the same time they recognized that this was necessary to strike a balance between the individual's right to know against the government's need, in the wider public interest, to withhold certain information from disclosure. This issue had to be addressed in developing any 'Freedom of Information' legislation…

Report of the Expert Group Meeting on the Right to Know and the Promotion of Democracy and Development, held in Marlborough House, London, on 30-31 March1999 emphasized the importance of access to official information set out in Barbados in 1980 and Harare in 1991.

It was found that even some African countries adopted the importance of right of information.

Freedom of information has many benefits. It facilitates public participation in public affairs by providing access to relevant information to the people who are then empowered to make informed choices and better exercise their democratic rights.

It enhances the accountability of government, improves decision-making, provides better information to elected representatives, enhances government credibility with its citizens, and provides a powerful aid in the fight against corruption. It is also a key livelihood and development issue, especially in situations of poverty and powerlessness.

The Commonwealth Freedom of Information Principles were based on the recommendations in the 1999 Report of the Expert Group. Unfortunately, the final Principles endorsed by the Commonwealth Law Ministers at their Meeting in 1999 in Trinidad and Tobago were less comprehensive and progressive than the Principles and Guidelines submitted by the Expert Group. The Principles were noted by the Commonwealth Heads of Government at their Durban Meeting in 1999. The Commonwealth Heads of Government Meeting recognized the importance of public access to official information, both in promoting transparency and accountable governance and in encouraging the full participation of citizens in the democratic process.

Openness

The Commonwealth Freedom of Information Principles state that -

Member countries should be encouraged to regard freedom of information as a legal and enforceable right.

There should be a presumption in favour of disclosure and Governments should promote a culture of openness. The right of access to information may be subject to limited exemptions but these should be narrowly drawn.Government should maintain and preserve records.In principle, decisions to refuse access to records and information should be subject to an independent review.

The Azo Rock Commonwealth Declaration for Development and Democracy of the Commonwealth Heads of Government Meeting (CHOGM) held at Abuja Nigeria on 8/12/2003 emphasised the importance of right to information at the paragraph 7 (iv).

To assist the member countries of the Commonwealth, the Secretariat prepared a draft model Bill for the benefit of member countries reflecting the principles adopted by the various group meetings. Countries which are too poor to maintain office of the commissioner for freedom of Information could make use the National Ombudsman. Mention is made with regret, that while Sri Lanka holding the Main Chair of the CHOGM failed to keep aspirations of the Commonwealth ideals.

Asian developments

Peoples Republic of China in April 2007 passed “Regulations of the People’s Republic of China on Open Government Information” and it came into effect on the 1st May 2008.

The Caretaker Government of Bangladesh issued a Gazette, the Right to Information Ord. (No. 50 of 2008) on the 21st of October 2008. The Government came into power in March 2009 was able to pass Right to Information Act based on the Indian Model.

Law concerning Access to Information Held by Administrative Organs was passed by Japan in 1999 and came for enforcement in 2001.

The Philippines promulgated by passing Code of Conduct and Ethical Standards for Public Officials and Employees in 1987 enabling the citizens to have access to public documents.

Pakistan passed the Freedom of Information Ordinance 2002 in October 2002 allowing any citizen to have access to public records held by a public body of the federal government including ministries, departments, boards, councils, courts and tribunals.

The Act on Disclosure of Information by Public Agencies was enacted in 1996 by South Korea and came into force in January 1998. South Koreans have right to demand information held by public authorities.

The Official Information Act 1997of Thailand fulfils this obligation.

Landmark judgement

Even before the passing of the Right to Information Act in 2005, Supreme Court of India held in a land mark judgment that “the people have a right to know every public act, anything that is done in a public way of the public functionaries” State of U. P. Vs Raj Narain AIR 1975 SC 865.

The Indian Supreme Court further gave a series of judgments relating to the freedom of information. The Right of Information (RTI) Bill was presented to the Parliament on the 22nd September 2004 and with over 100 amendments Bill was passed on the 15th of June 2005 and the Act came into force on the 13th October 2005.The preamble of the Act states -

“An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto”.

Indian Act

The Indian decisions have further gone to state that if an institution receiving government grants falls within the purview of the RTI Act as decided in Dhara Singh Girls High School vs State of Uttar Pradesh (AIR) 2008 All 92. RTI Act covers the Corporations and the Government controlled undertakings. Indian Act applies to all states except Jammu and Kashmir. It is highly commendable that India with two rivals on the eastern and the western borders adopted the RTI Act as she considered transparency, accountability and democracy are above the other considerations.

Indian interpretation of 'information' is very necessary in this connection.

'Information' means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;

With the recently evolved computing terminology the “cloud storage” shall be added to this definition. For prevention of corruption and greater transparency, e.g. in tenders submitted by private persons, those documents in possession of a private person relating only to that transaction shall be available.

Shortcomings

The Right to Information Act, an Act passed due to the thrust laid by mainly by Anna Hazare, an anti corruption champion, has loopholes. According to the Right to Information Act, the citizens of India have the right to get information on any matter concerning the country, but recently an incident occurred which clearly reflects the loopholes in the Right to Information Act. A citizen of India made a complaint about the illegal wealth possessed by the former chief justice of India, K.G Balakrishnan. Even today complete information about the wealth of this Chief Justice of India is not known to the public due to shortcomings of the Right to Information Act. Balakrishnan's son-in-law and Indian Youth Congress leader P. V. Srinijan, who did not have any land in 2006, is now a owner of property worth crores of Indian rupees. According to a report by news channel Asianet News, Srinijan had declared while contesting as a Congress candidate in the 2006 Assembly elections that he had no landed property.

The Commission set up under this proposed Act should invite persons (including legal personam) to tender information voluntarily to encourage transparency relating to their transactions. Earlier Sri Lanka had a pseudo fear that transactions relating to the forces would go out to the enemy. That position has overcome in many jurisdictions by simple exception clauses.

Benefits

Freedom of information has many benefits. It facilitates public participation in public affairs by providing access to relevant information to the people who are then empowered to make informed choices and better exercise of their democratic rights.

It enhances the accountability of government, improves decision- making, provides better information to elected representatives, enhances government credibility with its citizens, and provides a powerful aid in the fight against corruption. It is also a key livelihood and development issue, especially in situations of poverty and powerlessness.

The Section 10(2)(a) of the Official Secrets Act refers to… safety or interest of the State…, but the security of the State is of paramount value, that protection has to be continued. Further Section 123 of the Evidence Ordinance prevents use of unpublished records relating to affairs of the State without the permission of the head of the department. If this section is retained in its fullest operation, the purpose of right of information will be defeated. Section 123 of the Evidence Ord. shall be limited only to security and intelligence. There shall be a series of exemptions as set out below.

a. National security and intelligence, b. Cabinet papers, c. International relationships, d. Disclosure of personal information of an individual, e. Secrets of scientific discoveries and inventions, f. Professional communications e.g. Physician and patient, lawyer and client, g. Answer scripts of public examinations and h. Investigations into a crime.

Security and intelligence activities shall be exempted from any public forum even from the operation of the Parliamentary Select Committees.

People select the rulers once in six years and soon after the election people become dormant till the next election. Citizens could be made active if they have the opportunity of taking part in the administrative process of the country.

People shall be vibrant in a real democratic set up which could be achieved if they know how the state machinery is working. Right of information is a global non stoppable trend to avoid corruption. This is a fundamental human right. Corruption cannot remain any more in a democratic society. There shall be transparency, accountability and good governance of every government activity. Holders of public office shall not be permitted to have unwarranted luxuries at the expense of the sweat of the poor citizens.

Media shall be permitted to have this information at nominal cost without discrimination. There shall be no delay is making information available as with the delay public tend to lose interest, remembering that delay defeats justice.

The writer is an Attorney-at-Law