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Right to information draft ordinance
***While the public has the right to information, it is acknowledged that certain information may not be accessible because of national security. However, the limits of secrecy have to be carefully defined to avoid a situation in which certain actions of the government cannot be hidden on the plea of national security.***
IT is a commendable decision of the caretaker government to elicit views from public about the draft ordinance of the Right to Information Act. From media reports, it seems that the draft ordinance has met with severe criticism from a series of round table discussions that were held in recent days.
The criticism was mainly on based three planks --philosophical basis of the right to information, easy and timely access to, and means of, disclosure and the scope as contemplated in
the draft.
General remarks
Before I discuss briefly about the loopholes of the draft ordinance, let me make a few general remarks.
The origin and evolution of the idea that the public has the right to information have less to do with constitutional history than with the public's right to know how the government runs the country with taxpayers’ money.
The development of participatory democracy, together with awareness of human rights and growth of the mass media, has increased public understanding of their right to information.
While the public has the right to information, it is acknowledged that certain information may not be accessible because of national security. However, the limits of secrecy have to be carefully defined toyvoid a situation in which certain actions of the government cannot be hidden on the plea of national security.
In democracy, the strength of governments is drawn from transparency and accountability. Democratic government operates more often by persuasion, cooperation and consensus than by imposition and fiat.
It is argued that if the law had been in place, the alleged massive corruption that engulfed the country in the past would have
been in check. The alleged perpetrators would have known that their activities would be exposed by disclosure of information through the Right of Information Act.
Brief comments on the draft ordinance
The draft ordinance follows the proverbial principle that laws are like cobwebs, strong enough to detain only die weak and too weak to hold the strong. Legally, it has too many loopholes, and to provide comments section-wise (27 sections) will be impossible. Given the constraints of space, therefore, my comments will be brief.
The draft ordinance appears
to be "cut and paste" work and, therefore, has no consistency in thought, words and sequence. The preamble has ignored two basic elements disclosure is necessary to contain corruption and right to information arises because government spends taxpayers' money.
Some of die sections of the draft appear to be contradictory, for example, section 6 and section 8. Section 7 (b) appears to be in contradiction to the spirit of disclosure.
The spirit and text of the draft make palpably clear to many that disclosure of information may be held up easily by public officials on the basis of Article 8, which contains vague and general words, such as "honour," "sovereignty of state," or "foreign policy," etc. These words are variable concepts.
Foreign policy does not confine itself to political and diplomatic relations with other countries. It now covers the entire gamut of external relations in areas such as manpower export,
trade, and humanitarian and environmental issues. Since economic diplomacy is the main thread of foreign policy, secrecy in foreign policy is now outdated, unless it affects relations between two states.
The fundamental point is that whatever is discussed in parliament must be disclosed to the public under the draft ordinance.
Only for reasons of national security, it is argued, disclosure may not be provided, but national security ought to be defined in the draft ordinance, otherwise, plea of security would keep certain information secret, which is unwarranted.
In this connection, it is necessary to harmonise the conflicting interests of the state while preserving the paramountcy of the democratic ideal of disclosure of information to ordinary citizens.
The composition of the committee to recommend the names of the principal information commissioner and members of the information commission
seems to be flawed, given the fact that the information commission is an autonomous body under Article 12 of the draft.
The appeal process against decisions of public officials denying information is too cumbersome and onerous for the ordinary public. The process may defeat the whole purpose of the right to information. If a public official refuses to disclose information, the officer must give reasons to his/her superior for doing so.
The existing laws and rules, such as Official Secrets Act, the Printing Presses and Publications (Declaration and Registration) Act, Rules of Business, Government Servants' Conduct Rules, and Evidence Act, must not be a bar to disclosure under the right of informa tion ordinance.
Finally, the scope of the draft ordinance has been made too wide to include private business enterprises. Although the intention is right, implementing it would raise a host of questions,
including confidentiality in business. It may defeat the whole purpose. In this context, the 2005 Indian Right to Information Act may be looked into.
Proposed suggestions
The draft ordinance needs to be prepared afresh by a new committee, with representation from a wide community of stakeholders. The representatives will know where the "shoe pinches" because some of them would seek information from public agencies or departments.
Secondly, while preparing the draft, the old mindset of secrecy in government needs to be discarded, rather voluntary disclosure of information leading to government actions may permeate through various sections of the draft ordinance.
Finally, the law is not good enough unless monitoring and implementation are scrupulously embedded in the ordinance.
Barrister Harun ur Rashid is a Ferner Bangladesh Ambassador to the UN, Geneva