Right to information in Bangladesh: Challenges and opportunities

In Bangladesh, the poor become more poor and disadvantaged because of their lack of access to information. Experience shows that lack of required information results in their living with poverty which is perpetrated through several generations. Women are doubly disadvantaged because their option to access information is further constraint due to their social and political exclusion and lack of mobility.

Bangladesh Constitution
Article.39 (2) of the Constitution states that subject to any reasonable restrictions imposed by law in the interest of the security of the state, friendly relations with foreign state, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence, a) the right of every citizen to freedom of speech and expression and b) freedom of the press are guaranteed. The interpretation of this Article is intended to include discussion and dissemination

Although the Constitution does not specifically mentions the right to information in Commonwealth countries such as India and Sri Lanka, courts have read this right into the Constitutionally recognized right to freedom of speech and expression or freedom of thought.

Official Secrets Act,1923
Official Secrets Act is operative in almost every country of South Asia, which were under British colonial rules. These Laws were brought into force to suit their agenda of preserving an oppressive regime. These have been adopted by independent nations for promoting vested political interest.

In this Act sub-section 8 of section 2 has defined prohibited area in a very wide range limiting the areas for collecting information.

Section 3 deals with disclosing information against the state's interest. The penalty provision under this section does not provide nay scope for defending.

Section 4 states that only for presumption of giving information to foreign agents, offense will be considered.

According to Section 5 any person can be convicted only for the disclosure of information possessed by him. In this presumption is enough to prove disclosure which can affect the sovereignty, integrity, security and the interest of the state, assist the enemy of the state, degrade the friendly relation with the other states.

In most of the cases Government interpret the terms 'enemy', 'foreign agent', 'security or interest' in its own way and restricts the flow of necessary information. Secrecy Act instead of being used in the time of war or emergency and for defense are being used in a way that it strikes at the core of the democratic right of the people. In Bangladesh, this Act has been used as an instrument to limit the growth of independent and impartial journalism.

Government Servants (Conduct) Rules
Rule 19 of the Government Servant (Conduct) Rules, 1979 says any sitting government official can not disclose any information "to other Ministries, Divisions or Departments , or to non-official persons or Press"

Evidence Act 1872
Restricting Articles of the Act are 123 and 124. Section 123 has put the matter of getting unpublished official records on the permission of the head of department.

"No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs 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." Head of the department of the concerned office can permit in providing information but nothing to do on his denial. Even the Court is bound to accept the decision of the public officer.

Under Section 124, no public officer shall be compelled to disclose communications made to him in official confidence when he considers that public interest would suffer by the disclosure. There is no clear definition of public interest, suffering. If a disclosure is against public interest is to be decided by the concerned official and does not fall within the court's jurisdiction.

According to Article 125, a civil servant is exempted from court orders for production of documents or questioning with regard to information but why privileges are claimed, have to be explained to the court.

Rules of Business 1996
The Rules of Business, 1996 Schedule I has described the allocation of responsibilities of respective ministries and departments/divisions. According to The Rules of Business, Ministry of Information is directed to take initiatives for publicity of internal and external policy. Moreover it is Information Ministry's responsibility to build "coordination of publicity activities of the different Ministries/Divisions and Bangladesh Missions abroad"(Schedule 1 of the rules of Business 1975). The ministry of Information has the major role for "Preservation and Interpretation of the policies and activities of the Government of Bangladesh through the medium of press" But this is not in practice.

The Penal Code
Section 499 of this Code restricts person to express their belief, expression by words (written/ spoken), signs or by any other means he / she has been defamed, entitles him/ her to sue for defamation. This is a risk especially for journalists to collect and publish information.

Code of Criminal Procedure, 1898
With the help of section 99 A, the government by official gazette can forfeit any book, publication under Press and Publication Act. This is a threat to the freedom of press and publication. Right to information includes both rights to know and right to make know.

Proposed Right to Information Act 2002
Bangladesh Law Commission has drafted the Right to Information Act in 2002. However, it is not ready to be considered as a Bill to be tabled in Parliament. The most recent information is that it is lying with the Ministry of Information for further review.

Features of the proposed Act
I) Government and Semi-government offices are bound to publish their documents to the public. The publication should contain useful and accurate information on important matters. Side by side, in this Act the private authority comes under the same process;
II) The definition of information has been given in section 2 (a);
III) In this Act, it is ensured that public authority must be bound to supply information to the people and they will enjoy this statutory right;
IV) In this Act, the process of access to information has been discussed in detail;
V) In the proposed Act, the offences committed have been divided into different categories and have different penalties (compensation, fine, and imprisonment etc);
VI) The formation of Information Tribunal and Appellate Information Tribunal has been recommended. All the disputes are to be settled as early as possible.

Loopholes of the Proposed Right to Information Act
I) It was expected that this Act would prevail over the Official Secrecy Act. But in reality the proposed Act has been made applicable subject to certain provisions of the Official Secrecy Act.

II) In the proposed Act, some rules are added where the public authority is not bound to give information by showing the excuse of safety and state security;

III) The structure and power of the information tribunal has been mentioned but without any specific time limit. As a result one can easily be harassed without decision for a long period of time.

VI) In Section 8, the aggrieved person who is denied access to information is entitled to get Tk 5000/ as compensation, which should be rationalized.

Status of Right to Information in some neighboring and C'wealth countries
Many Commonwealth countries have that make it an offence to destroy, conceal, erase, alter or falsify records and contain penalty provisions for these actions. Most access laws cover information contained in a variety of media using technological innovations for creating and storing information.

India has passed the Right to Information Bill in June 2004. Their legislation is being treated as radical measures containing clear rights for those requesting information and strong enforcement mechanism. Under the Indian Act information concerning the life, liberty of a person, is required to be provided within 48 hours, and other information is to be provided within 30 days. Implementation mechanism has not been mentioned clearly in the Act. Public interest has been defined broadly, so there is scope to conceal information by interpreting it as public interest.

The Constitution of Nepal under Article 16 recognizes the right to information as a fundamental right of the citizens and in Article 13, freedom of press and publication has also been guaranteed as a fundamental right. Common code of Nepal enables any concerned party to demand the duplicate copy from case method of the court. The procedure, payment of fees and time limit is also prescribed for this purpose.

In Sri Lanka, Article14 (1) (a) of the Constitution does not expressly recognize the right to information. It simply guarantees every citizen the freedom of speech and expression including publication. But Sri Lanka's Court has brought the right to information within the domain of Constitution.

In Pakistan, Article 19 the Constitution says that every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defense of Pakistan or any part thereof, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence. Pakistan Court has taken the same approach as Sri Lanka bringing the right to information within the purview of Freedom of Expression.

Access to Information: A synopsis of Bangladesh Case
Executive
Government officers deny providing information showing the reason of the Official Secrets Act even to a person directly related to the concerned information. According to this Act (section 5) any person can be convicted for the disclosure of information possessed by him.

The present rules and regulations prohibits government officials to disclose any information. There is also no other provision that obligates government official to specify their act and actions even it is said to be directed towards the interest of citizens.

It is also seen that lack of coordination between different line ministries causes problems in availing information and meeting deadlines. Sometimes secrecy is maintained in such a restrictive manner that duty bearer themselves remain in the dark regarding the information they are supposed to know.

Similar statements are equally applicable in non-government sector. One can see the reflection of Government secrecy culture in non-government's attitude and actions. It would not be exaggerated to define non-government attitude as the mirror of government attitude.

Judiciary
Judiciary can play a significant role to establish access to information as a "right". Recently upon a writ petition Court has directed the EC (Election Commission) to provide eight kind of information regarding property, criminal charges and educational background of election candidates. By giving this judgment court has proven that people have the right to know as a voter the profile of an election candidate. This judgment is a step forward in people's right to know and moving towards a more transparent election process. Judiciary is in a favorable position to create precedence by giving clear direction to the concerned authority of the state, which may bring a positive change in accessing information.

Legislative
In Bangladesh, though a parliamentary form of government exists, lawmakers rarely play their due role. Lawmakers are supposed to develop laws in accordance to public opinion, interest, and will of the people. Lawmakers are not sufficiently aware that people have a right to know and do not recognize this as a right. Their debate in the parliament or comment out side the parliament rarely reflects this issue. This statement is more relevant in case of preparing the national budget. The allocation of budget does not often reflect the expectation and demand of the community.

The media can play a pivotal role in influencing and promoting transparency in the way three organs of state operate. It can bring to public attention the hundreds of examples of misuse of power; lack of transparency and bad governance that affect peoples lives everyday.

Here it should be mentioned that media's attention should not only be directed at public offices. It is the duty of the media to highlight such problems in the private sector that includes business, NGOs etc. The recent campaign against food adulteration is a good example where the government is taking positive steps to prevent food adulteration and the media is giving it wide coverage.

Although Right to Information is not yet recognized as a Fundamental Right, there is enough evidence to believe that it has implication on every aspect of people's lives and well being. It is all the more important in Bangladesh where violations occur easily and common people become vulnerable to the failings of the state and forces of vested interest groups.

The demand for Right to Information law will have to come from the people. The people must understand the need for such a law, they must know how and why this law will improve their lives. The demand should be such that the government will see the merit of recognising it as the need of the hour and take steps for its enactment. Examples of other countries show that a strong peoples movement was the primary force behind the final enactment of the law.

The gender aspect of Right to Information should not be ignored. Women face added constraint to access information due to their exclusion in decision making both in private and public sphere. A special attempt should be made to ensure that women are represented in the drafting of such a law and also in its implementation and monitoring.

It is equally important that Right to Information law should not be restricted to public and government institutions. Private organizations, NGOs, business etc. should be held accountable and abide by the same standards of disclosure.

Lastly, a law is only useful to the extent that it is used and implemented. It is critical that some mechanism is developed that will enable proper implementation and monitoring of the law once it is enacted.

The author is the Team leader of Manusher Jonno, an NGO supporting Human Rights and Good Governance.