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 |