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Ensuring our right to Know

October 26, 2008
Tahmina Shafique points out why we need the Right to Information Act, the strength and loopholes of the recently drafted ordinance and how it may require many years before the Act is put to real use


illustration by Khamin

For most of the Bangladeshi citizens, some of the worst and horrid experiences perhaps involve dealing with public institutions and government officials.

From getting a passport to a tax paper or just a birth certificate, include weeks, and more often months of running from one desk to the other, standing at the gates and corridors, coaxing the sleepy and ignorant officials to get through the officer-in-charge.

In the first week, you will probably try to figure out who the actual person responsible for providing your information is. This will involve you going to one desk, wait for a few hours and be told to go to another desk and the week will end by the time you know who to contact.

If by some luck, you get through the actual person who will get your work done, you must wait for a few more hours until he finishes his cup of tea, or even just sit up from his slouching position, reach his hands out, and take out the piece of paper from the file.

Most often, it will depend on his mood really. If he wishes to, he may ask you to come back anywhere between the next day to the next one year, to inform you that either he does not have it or as a responsible official he cannot disclose it.

‘It’s a nightmare to even think of approaching any of the public institutions for any form of information,’ says Golam Mostafa, a businessman. ‘You would rather pay your way through, than to run through months, from one desk to the other, one place to the other to get any form of information out. Go ask any relevant government institution that – just from starting up your own business to wanting information concerning investing, banks and license – you are bound to go through this painful and lengthy procedure.’

Similar are experiences at a police station. ‘It’s an experience you would rather not have,’ says Imran Asam, a student. ‘This one time, I went to the station to find out about the status of a report we had made about our stolen car. I was asked to sit for hours, and then at the end asked to come the next week. Three weeks down the line, I was told the file was not found and that I should come later- it’s been two years, and do I dare ask the status of the case?’

If you are a journalist, who is ought to be able to enjoy outmost press freedom and the right to information, it’s not any different. One of the most dreadful task for you then will be to get a comment from a government official or just a piece of information- a document from a ministry.

You call his office repeatedly only to receive the ‘sir is at a meeting’ or ‘please call an hour later’ reply. Then, having tried and failed to get him on the phone for a couple of days, you decide to go to the relevant ministry or division or department.

Inside the ministry building, you move around from one room to the other, if ‘sir is not in his seat’, asking the grumpy assistants for his whereabouts. The personal officer takes time to inform ‘sir’ that you are there. If you have the patience, and you are persistent enough, ‘sir’ has a minute for you before a very important meeting.

He informs you, on some occasions eagerly and on others dismissively, that either his superior officer is only authorised to speak on the matter or a junior officer is better informed to speak about it. Of course, the senior officer refers you to the same or a different junior officer. Only the most polite official will take his time to explain to you that as a government official he or she is bound by the ‘Official Secrets Act’ not to speak to you. Not that he wants to speak either.

In case of the many policies and laws being drafted and approved, there is hardly any information that a citizen is aware of. ‘One week you hear a lot in the news about debates over a certain policy or law being drafted, and a few months later, one fine morning you hear that a new policy or a law is in place, and you hardly know what it is all about and it is supposedly impacting your life,’ says Salma Huq, a lecturer at a private university in Dhaka.

Supposedly, a citizen, according to the constitution of Bangladesh, has the right to information. Over the years, across the globe it has been constantly stressed that every citizen must have access to information in all spheres of life. According to experts, access to information in specifically public bodies have been of outmost need as the public bodies hold information not for themselves but as custodians of the public good.

‘They should provide us with those pieces of information that they hold because it is our information entrusted in their hands, not their information,’ says Ayesha Khanam, President, Mahila Parishad. ‘A democratic society must have access to information, as it is a tool of power and development which are crucially important for the growth of a nation.’

In 1997 the UN Commission on Human Rights issued a request to the Special Rapporteur on Freedom of Opinion and Expression to look closely into the right to seek and receive information, as the earlier provisions did not impose a corresponding duty to any entity. In 1998, the Special Rapporteur reported on the issue and notes that ‘The right to seek, receive and impart information imposes a positive obligation on states to ensure access to information, particularly with regard to information held by governments in all types of storage and retrieval systems.’

According to article 19 (2) of the Universal Declaration of Human Rights 1948, and article 19 (2) of the Covenant of Civil and Political Rights, both of which deal with freedom of expression and both of which Bangladesh has ratified, the right to seek, receive and impart information is an inalienable right of every individual. Bangladesh is further party to the Vienna Convention, the Limburg Declaration and the Bangalore Colloquium, which makes it a legal obligation of the state to introduce the right to information in domestic laws. So far, 75 countries in the world, including neighbouring India, have ensured the ‘right to information’ of its citizens through the enactment of laws under different titles.

Right to Information Ordinance 2008

In a modern democratic state, ‘the right to information,’ more popularly described as the ‘right to know,’ is a prerequisite. It is in view of this, that last month, on September 20, following years of debate, that the Right to Information Ordinance 2008 was finalised.

According to Article 4 of the Ordinance, section A states that ‘Every citizen shall have the right to information and every citizen, through application or request, shall know any decision, written proceedings of or any work performed or proposed to be performed by any authority’.

‘It’s a step that was long over due and certainly something we welcome,’ says Abdul Matin Khasru, former law minister. ‘Although initially the government had undertaken a participatory approach in drafting the ordinance, it was not so later on. There was a need for participation of many stakeholders throughout, but since the ordinance will be placed in the parliament for approval, it can be amended.’

The finalisation of this act comes in two folds- for one it is, as Khasru points out a step that has been long overdue, and indeed a progressive move. The other overriding impact of this ordinance is the fact that it has not taken into consideration of various issues and points, tabled by various stakeholders including the media.

‘Earlier on, Bangladesh did not have any specific ordinance that related directly to people’s right to know. Rather, what it had were certain clauses,’ says Khasru.

These clauses are Official Secrets Act 1923, Evidence Act 1872, Rules of Business 1996, Government Servants (Conduct) Rules 1979, and the oath (affirmation) of secrecy under the constitution act as an impediment and barrier to getting access to information.

While clause 5(1) of the Official Secrets Act has been designed to protect military and strategic secrets, on many occasions, it has been the most popular excuse of government officials to deny information. Section 123 of the 135-year old Evidence Act stipulates that only the head of the department of any government machinery holds power to disclose information. The more recent Rules of Business specifically bars government officials from disclosing information to members of the press. Crucially still, government servants are bound by both their oath and service rules to refrain from disclosing information.

In 2002, the Information Commission drafted the ordinance which was in pipeline till date. The proposed act included clauses such information being properly recorded, catalogued and indexed, the publication of information, the procedure for the access to information which includes a fee of Tk 5 and a time limit of fifteen days, as well as exceptions and enforcement measures.

The ordinance provides for a three-member autonomous information commission headed by a chief information commissioner, mandated with a four-year term, to enforce the law and deal with complaints from the information seekers.

According to reports, the government will appoint staff at the suggestion of the commission to discharge its responsibilities across the country. The president will appoint the chairman and members of the commission at the suggestion of a five-member selection committee headed by a Supreme Court judge.

The others who will be sitting on the commission will be two lawmakers from the treasury and opposition benches of the parliament nominated by the speaker, the cabinet secretary and a government representative.

People will have the right to seek information from public offices in a prescribed form with a fee. The public offices will also maintain information so that the people can get information on demand. In this case, people living below poverty line can apply in white paper without paying fee.

According to experts, there are various dimensions and spheres of life that a Right to Information Act can address, economy being one of the major focuses.

‘Over the years people have been kept in the dark about the economic policies pursued by the government and the direction the economy is taking,’ says Dr Anu Mohammed, a professor of economics at Jahangir Nagar University. ‘That we have signed the GATT and have become a part of global capital control is known and understood by few. Ordinary citizens, who had to pay for this through rising cost of living, did not have a say in it.’

‘In the future, all major contracts including that of oil, gas and coal and strategic papers such as the PRSP will come to the public domain hopefully through the right to information. People can then decide what is best for them and we can avoid events like those in Phulbari,’ adds Anu.

Grey areas

The approved Ordinance, which is expected to be signed into law, has many areas that need ratification, say experts.

According to the Ordinance, ‘As per the ordinance the related officials will supply primary information on issues including arrests and releases within 24 hours.’

‘The scope of the current ordinance is restricted to only “primary issues”,’ points out Rubana Huq, CEO, Mohammadi Group.

‘This clause of the ordinance had 48 hours, following objections, this was reduced to 24 hours,’ says Manjoorul Ahsan Bulbul, Head of News, ATN Bangla.

The ordinance further stipulates officials sitting in new posts to be created in most government offices and NGOs give the people information within 20 days of receiving applications.

Organisations funded by taxpayers’ money and NGOs run on foreign funds are required by the ordinance to ensure people’s right to information, officials who attended the meeting of the council of advisers said.

‘Under this, we feel other organisations including private institutions should be included,’ says Shawkat Mahmood, president, National Press Club. ‘Many functions of private bodies are relevant, the information held by them can equally be important for citizens. People should also have the right to access to those pieces of information held by private bodies that are necessary for the exercise or protection of any other right. This can only ensure a transparent system.’

According to private institutions, however, they should not be liable to such information acts. ‘We provide our balance sheets to joint stocks and other report platforms, what more is required. We are a profit making organisation and all across the world, private institutions are not liable to such laws,’ says a businessman, preferring anonymity.

‘The public sector itself lacks the required infrastructure to provide adequate information. That is an area that needs to be worked on. Right to information is indeed a valid demand. But the public sector has to be first covered completely before moving on to the private,’ says Rubana Huq.

In addition to this, the ordinance has made exemption on six security and intelligence agencies from the reach of the new ordinance. These agencies are often accused of overstepping their legal jurisdiction, point out experts.

‘Criminal Investigation Department of the police will routinely have information it cannot divulge for fear of hampering an ongoing investigation. But the CID personnel are also often accused of harassing innocent citizens and the law should instead have made a distinction in what kind of information this agency would divulge so that a modicum of checks and balances could be ensured,’ says Bulbul.

Similarly, the financial irregularities, the budgetary indiscipline, the lack of accountability, and the alleged political machinations of many of the other agencies, cannot be brought under democratic public oversight under the new law, say experts.

Although welcome, the ordinance did not include the explicit points that the Press Association and others had indicated earlier, says Mahmood.

‘Odhikar believes that the draft Ordinance will curb, rather than extend press freedom, and the people’s right to know,’ says Adilur Rahman Shuvro, director, Odhikar. ‘The draft ordinance proposes the establishment of an Information Commission, which will eventually help the authorities concerned to evade the responsibility of giving information. If the ordinance is promulgated, people- even a journalist – will need to apply in a prescribed form for information and the authority will have the power to reject the application or provide the information sought.’

Challenges

While the ordinance, in many ways does conform to specific rights of citizens to know, many feel that the country does not have the given infrastructure or system to follow this law.

‘RTI has now become a hot topic,’ says Shahdeen Malik, the eminent lawyer. ‘But, practically, the government in its present capacity does not possess the ability to implement the law. Government offices and NGOs registered with the government, who have also been considered under the same law, will need a totally new budget and will need to introduce a new section to disseminate information.’

Government offices will have to change the way they operate and keep efficient computerised records of everything for rapid release of information. The administrative management will have to change. ‘At its current state, it is next to impossible,’ he adds.

‘The idea and its benefits must reach all levels of society and reach throughout the country for it to function properly – which was essentially one of the major reasons for demanding units to be set across the country,’ says Khasru. ‘A person living in Rajshahi or a remote village will not be able to access the provisions of this law.’

‘In a society which is dominated by the culture of secrecy, male domination and conservatism, the right to information can actually empower women, given this is followed,’ says Ayesha Khanam.

It is for time to tell the actual impact of this law, point out experts. ‘Given that time is given and proper system is developed, the country can see the benefits in a few years, if not now. In addition to this, in due time, amendments can also be made to make this RTI an indeed empowering law,’ points out Khasru.

http://www.newagebd.com/2008/oct/24/oct24/xtra_cover.html
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2 comments

  1. […] From getting a passport to a tax paper or just a birth certificate, include weeks, and more often months of running from one desk to the other, standing at the gates and corridors, coaxing the sleepy and ignorant officials to get … Ensuring our right to Know […]


  2. […] Shafique analyzes the strength and loopholes of the recently drafted Right to Information Ordinance 2008 in […]



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