***The concept of Right to Information is founded in International Human Rights Law and has been incorporated in the constitutions of countries. It developed out of the basic right to freedom of opinion and expression enshrined the Universal Declaration of Human Rights (Article 19) 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. ***

RIGHT to information is an issue which touches every aspect of people's lives, and Is integral to receiving a myriad of other rights. Reforming the laws in Bangladesh related to accessing information would go a long way to bringing accountability to governance to governance in the country with immediate effect. It is therefore important to first look at some of the prevailing information access related laws in order to comment on the need for drastic reforms. Quite simply, legislative changes are required in order to make government more transparent and accountable and to do away with unnecessary hurdles. These should be referred to a grou/> of persons having expertise on the various laws ander review in this article.

The Constitution makers of Bangladesh ensured the effective participation of the people through a formulation that was adopted in the Constitution as : [Article-II] The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed, (and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured]". The lack of participation by the people in the administration of governance in Bangladesh, has not only deterred the progress of the country, but has also made the society more corrupt, vulnerable to terrorism and prejudice. Merely holding elections every five years does not ensure the participation by the people in the administration of governance. We need to look for ways to make the elected representatives in administration at all levels accountable to the people. The Right to Information is being viewed as a possibly potent instrument for breaking away from the feudal system in which even today government is viewed as lord and master of the common man and Woman. If democracy is to prevail, citizens need to have adequate information.

The concept of Right to Information is founded in International Human Rights Law and has been incorporated in the constitutions of countries. It developed out of the basic right to freedom of opinion and expression enshrined the Universal Declaration of Human Rights (Article 19) 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."

From the standpoint of the Bangladesh Constitution, this Right can be traced to Articles (32) and (39). Article (39) articulates freedom of thought, conscience. speech and the freedom of the press. In the case of "Abdul Kader vs Bangladesh" (46 DLR 5961. the Judge of th6

High Court Division expounded. Freedom of Speech and Expression occurring in clause (2) of Article 39 of the Constitution means a right to express one's own opinion absolutely freely by spoken worlds, writing, printing, painting or in any other manner which may be open to the eyes and ears. It thus includes expression of one’s ideas on any matter by any means including even gestures, postures, banners and signs. It appears to us that this freedom is wide enough to include ex-Sression of one’s own original leas and also expression of one's opinion in the form of comments, explanations, annotations, solutions and answers to questions on the ideas expressed by others."

In order to understand the significance of the Right to Information in modern-day Bangladesh we can begin by looking at the current place of human rights in the national legal paradigm. The Minister for Law. Justice and Parliamentary Affairs is now finalizing a statute for the establishment of a National Human Rights Commission in Bangladesh. He recently said. "We are aware that government must be mindful of the legitimate expecta-

tions of the people not only for the betterment of their material conditions of life but be also responsive to the concerns about transparency, accountability and people’s participation in the administration of governance. Our task, as representatives of our respective peoples, is not only to legislate and exercise powers and functions but also to ensure accountability through institutions (and organizations) which can ^act as watchdogs."

It can be argued that in Bangladesh the older paradigm oftfheck and balance fashioned through the separation of the three traditional organs of state. 1. e., legislative, judiciary and the executive, is flawed and even non-existent. Therefore, the effort being made to sup-pjement accountability, by set'-" ■ ting up other institutions as 'watchdogs'. Is misdirected. In this context, the- Press in for keeping the government in check. Newspapers are currently the main users of the Right to Information in Bangladesh, however tenuous it is. in order to access information for news. But we must remember, as the Constitution makers have deemed it necessary to ensure the participation of the people.' the basis of a Right to Information is not a 'newspaper right', but belongs to the public to know the information they seek.

In highlighting the Right to Information in Bangladesh, it is Important to acknowledge

the link this right has with Right to Literacy. This is perhaps the most Important and urgent linkage of all. All experience shows that education helps to flower the innate potential of man. In Bangladesh there is a barren human potentiality. who have been Ignored, they have no means to communicate. not to speak about any ability to access information. Today, information like air. is everywhere. But to able to read this information, let alone handle a computer and search the internet, is the first step. The Constitution of Bangladesh has given a mandate to the state asking it to adopt effective measures for the purpose of:

a) establishing a uniform, mass-oriented and universal system of education and extending free and compulsory education to all children to such stage as may be determined by law;

b) relating education to the needs of society and producing properly trained and motivated citizens to serve those needs.

c) removing illiteracy within such time as may be determined by law.

The Constitution of Bangladesh therein provides

the framework for the state to liberate the ill-lit mind of the masses. The above words are a constitutional command to educate the people on a masscommunication basis. The participation by everyone in the new 'information society' must be assured so that two groups do not form, those adopting the new knowledge and those left behind.

The State is also under a Constitutional commitment to provide open governance, and the Right to Information has a link here as well. But the task to get such a Right into the statute books will, no doubt, be an arduous one. And among the im-• pediments activists in Bangladesh will face during the course of such a struggle will be ? host of colonial laws which ' ’•need immediate reviewf The Bangladesh Evidence Act (specifically 123/124). Official Secrets Act. Government Servants Conduct Rules (Rule 19) and Sections 99A of the Criminal Procedure Code along with other laws need to be reviewed and scrutinized in light of open governance. Right to Information and Constitutional commitments. These laws have enabled the Government to shut the public from inquiring into the process that determines and affects their lives. The following will illustrate:

A privilege may be claimed with regard to unpublished official records, and the language of the Sections from the Bangladesh Evidence Act is

very wide, as quoted below:

Section 123:

Evidence As to Affairs of State — No one shall be permitted to give any evidence derived from unpublished officials records relating to any affairs 1 of State, except with the permission of the officer at the head of the department concerned. who shall give or withhold such permission as he thinks fit.

Section 124:

Official Communications — No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.

The draconian Official Secrets Act was initially promulgated by the British Colonial administration in 1923. and has survived virtually intact up to the present day. This Act should be outright repealed. Article 5 of this Act makes it a crime for an official to communicate any information, which, among other things, was "entrusted in confidence to him by any person holding office under government or which he has obtained or to which he had

access owing to his posiUon as a person who holds or has held office under government." The government servants In Bangladesh are forbidden from sharing Information with the public, even with their colleagues from another department or ministry. The Government Servants Conduct Rules provides as follows:

Section 19:

"Communication of official documents or information: A government servant shall not. unless generally or specially empowered by the government In this behalf, disclose directly or indirectly to government servants belonging to other ministries, divisions or departments, or to a non-officlal person or to the press, the con- . • tents of any official document ; or communicate any Informa-1, " tion whith has come into- his possession in the course of his official duties, or has been prepared or collected by him in the course of those duties, whether from official sources or otherwise."

The accessibility of government-held records should be viewed as a citizen's right, enforcement of which makes the government more democratic and accountable. The public servants become more efficient and careful in performing their duties and obligations bearing in mind the burden of accountability. The bulk of decisions made by civil servants affect the citizens and community directly and significantly.

Therefore, the public servants must be accountable for any such decisions that they make.

There is still no clear legal definition on information in Bangladesh. As a result of this it is not possible to identify, discriminate and demarcate. In precise terms, the rights and obligations on accessing information. If one goes by the various case laws, it has been decided that affairs of the State should be given a restricted meaning and those should be such affairs that divulgence of which would Jeopardize some Important interests of the State. (PLD 1955. Lahore. 39), Courts in Pakistan have refused to allow copies of privileged official records acquired by official means to be used as documents in court. The Bangladesh Supreme Court in a Judgment reported in [48 DLR, (AD), pg. 171] has disapproved obtaining a copy of internal communication of the government noting and disallowed enforceability of the right evidenced by such {(overnment noting in the fol-owing words:

"No legal right can be founded on these inter-mlniste-rial/divlsional communications."

The Judge cited the case of

"Bangladesh vs. Dhaka Steel Works Ltd." [45 DLR (AD) 69, para 83] of which is as follows:

"83. We must however sustain the further contention of the learned Additional-Attorney General that the Government's noting ... are not enforceable. because those were internal exercises of the Government and were never communicated to the respondents. No legal right can be founded on those nothing. The respondents are not also supposed to obtain a copy thereof."

So on the one hand, there is no formal definition on public information and on the other, the general public is unaware of the nature and type of information that can be demanded from the public authorities. Open, ac-' -Jpountable. democratic govern- 1 ■ menti Will allow free at-cess b/ the public to information concerning the sphere of public administration, except to information for which secrecy can legitimately be claimed such as military secrets. The culture of secrecy' is the main obstacle in front of the exercise of the Right to Information in Bangladesh. The lack of democratic culture and exercise, particularly among the subterranean bureaucrats, have made It difficult for the common. people to access information relating to public Interest.

Recommendations

Besides reforming the laws previously outlined, mechanisms are needed in order to

provide access to such information for the citizens which would facilitate people's control over corruption and the arbitrary exercise of power. A good place to start would be to scrutinize and review the system of interface between the ordinary citizen and the police.

If one wants to lodge a complaint with the police in Bangladesh, in many cases the police will refuse to record one's information. Also, as we have seen in the case of the student Rubel, who was picked-up and subsequently murdered in po-lice custody, and in the pernicious practice of picking-up street children before an Opposition sponsored hartal and tossing them into jails, as well as other examples which show that there is no accountable process for recording of arrested individuals or for informing their family members of their arrest.

In order for Bangladesh to have a transparent criminal Justice system free from the ar-iltrariness of the police, procedural safeguards for arrest and custody must be clearly demarcated In detailed directions. These directions would translate into the right of the accused or his family 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 of the arrestee, preparation of a report on 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. In addition, the following information should be made available to any citizen of Bangladesh simply on request:

Details of registration of cases and disposal of investlga-tions into crimes against women and children, and other vulnerable groups.

Number ana list of persons in police custody, period of their detention and reasons for custody.

Number and list of persons in custodial institutions including jails, safe custody' and children's shelter homes, reasons for and length of custody, details of presentation before courts, etc.

, , There should be mandatory,, .provisions for visits to Jails, mental asylums, women's and children's shelter homes by NGO workers and independent citizens who are to have full access to inmates and their records, and also have quasiJudicial authority to enquire

. into any complaints of abuse. As a start, by just having access to the above listed information, it would demonstrate to the public the enormous potential power of information, if it be placed in the hands of citizens, to combat corruption and the arbitrary exercise of power over them that they experience in their daily lives.

Consultant Commonwealth Human Rights Initiative (CURD