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Right to Information

Commonwealth Human Rights Initiative. Right to Information. A Power Tool for Citizens. presentation. by. Venkatesh Nayak. www.humanrightsinitiative.org. Good Governance in Bangladesh Limiting Factors – Corruption, Opacity & Lack of Accountability.

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Right to Information

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  1. Commonwealth Human Rights Initiative Right to Information A Power Tool for Citizens presentation by Venkatesh Nayak www.humanrightsinitiative.org

  2. Good Governance in Bangladesh Limiting Factors – Corruption, Opacity & Lack of Accountability • 75 – 90% people experience corruption when visiting govt. offices • First cause for people not receiving scheduled services from govt. departments Lack of transparency and accountability • First reason for non-cooperation in govt. departments Transparency and accountability should be ensured Requirements of Good Governance – (among others) Official Secrecy Act Should be modernised (Excerpts from - Preparation of PRSP : A Status Report, Govt. of Bangladesh, July 14, 2004)

  3. Good Governance & The Millennium Declaration • “We will spare no effort to free our fellow men, women and children from the abject and dehumanizing conditions of extreme poverty, to which more than a billion of them are currently subjected… We resolve therefore to create an environment – at the national and global levels alike – which is conducive to development and to the elimination of poverty. Success in meeting these objectives depends, inter alia, on good governance within each country.” (Adopted in September 2000 by 190+ member countries of the UN General Assembly - including Bangladesh)

  4. Key Attributes of Good Governance • Transparency • Responsibility • Accountability • Participation and • Responsiveness (to the needs of the people) “Good governance creates an enabling environment conducive to the enjoyment of human rights and prompts growth and sustainable human development.” (UN Commission on Human Rights – Charter Body attached to ECOSOC that monitors human rights situation in all member countries of the UN) Bangladesh will become a member of ECOSOC in 2006

  5. Good Governance and Sustainable Development • Each country has the primary responsibility for its own sustainable development. • All countries should strengthen governmental institutions by providing necessary infrastructure and by promotingtransparency, accountability and fair administrative and judicial institutions. • They should also foster full public participation in sustainable development policy formulation and implementation. • All countries should promote public participation, including through measures that provide access to informationregarding legislation, regulations, activities, policies and programmes… • [Johannesburg Plan of Implementation of Agenda 21 • World Summit on Sustainable Development (Rio+10 Summit) , 2002] • Bangladesh is a signatory to this document

  6. Environment and Forest Minister Shajahan Siraj said that Bangladesh drew wide attention in the recently held World Summit on Sustainable Development (WSSD) by focusing the issues of its concern. Siraj said the WSSD has set specific targets in most of the issues of environment and sustainable development and “we believe we will be able to attain the target with the assistance of development partners and involvement of al our people.” Quamrul Islam Chowdhury, Chairman, Forum of Environmental Journalists of Bangladesh (FEJB) said the WSSD has set some "ambitious targets" but what is now needed is the will and capacity to attain the goals. Speakers today made a call to formulate an action plan to execute the Johannesburg Plan of Implementation adopted at the just ended World Summit on Sustainable Development (WSSD) for ensuring the sustainable livelihood of the people of Bangladesh. Bangladesh reacts after WSSD Courtesy: SDNP Bangladesh, news release dated September 15, 2002

  7. For making development and democracy mutually reinforcing Commonwealth Governments should commit to ensuring that the certain core institutions exist in their own countries and are fully held to account - “a freedom of information commission that enables the public to gain access to information about executive decisions and allows individuals to access information held about them by the police and public bodies.” Right to Information(RTI) in a Democracy Communiqué from the Commonwealth Law Ministers’ Meeting, 1980 “Public participation in the democratic and governmental process - most meaningful when citizens have adequate access to official information” Communiqué from the Commonwealth Law Ministers’ Meeting, 1999 “…freedom of information enhances accountability of the government improves decision-making … and provides a powerful aid in the fight against corruption” Report of the Commonwealth Expert Group on Democracy and Development, 2003 (among others ) • Bangladesh is a member of the Commonwealth

  8. Access to information is a human right Right to information – inextricably connected with the right to freedom of opinion, speech & expression Everyone has the right to freedom of opinion and expression; this right includes freedom … to seek, receive and impart information Universal Declaration of Human Rights(Art. 19) International Covenant on Civil and Political Rights(Art. 19) (Bangladesh acceded to the ICCPR in December 2000)

  9. Right to information & E-S Rights Right to Water Accessibility to water includes information accessibility i.e., right to seek receive and impart information concerning water issues ICESCR General Comment #15, 2002 [Art. (9)(c)(3)] Individuals and groups should be given full and equal access to information concerning water, water services and the environment, held by public authorities or third parties ICESCR General Comment #15, 2002 [Art.45] Right to Adequate Food States have an obligation to formulate and implement national strategies for the right to food in full compliance with the principles of accountability, transparency, people’s participation… ICESCR General Comment #12, 1999 [Art. 23] (Bangladesh acceded to the ICESCR in January 1999)

  10. Right to information & E-S Rights Right to Health Accessibility to the highest attainable standard of health includes information accessibility i.e., right to seek receive and impart information concerning health issues subject to confidentiality of information about personal health ICESCR General Comment #14, 2002 [Art. (12)(b)(4)] Right to maternal child and reproductive health includes access to information (on these issues) ICESCR General Comment #14, 2002 [Art. 14] State Parties have a duty to ensure that third parties do not limit people’s access to health related information and services ICESCR General Comment #14, 2002 [Art. 35] State Parties have an obligation to provide education and access to information concerning the main health problems in the community including methods of preventing and controlling them ICESCR General Comment #14, 2002 [Art. (44)(d)] (Bangladesh acceded to the ICESCR in January 1999)

  11. Right to information & E-S Rights Right to Adequate Housing In the case of evictions appropriate procedural protection and due process of law includes information on the proposed eviction and the alternative purpose for which that land or housing is to be used ICESCR General Comment #7, 1997 [Art. 15] Right to Education State Parties have an obligation to maintain a transparent and effective system which monitors whether or not education is directed to the educational objectives set out (in the Covenant) State Parties have an obligation to maintain a transparent and effective system to monitor educational standards in educational institutions. Non-adherence to this duty is violation of rt. to education ICESCR General Comment #13, 1999 [Art.49, 54 & 59] (Bangladesh acceded to the ICESCR in January 1999)

  12. Right to information in CEDAW State Parties must guarantee all women on a non-discriminatory basis - • Access to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning.[Art. 10 (h)] • For rural women in particular, ensure the right to have access to adequate health care facilities, including information, counselling and services in family planning [Art. 14 (b)] • Eliminate discrimination against women in matters relating to marriage and family relations and ensure the right to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights [Art. 16 (1)(e)] (Bangladesh acceded to the ICEDAW in December 1984 and ratified the Optional Protocol in December 2000)

  13. Right to information in Child Rights Charter Overarching right of access - • The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice. [Art. 13 (1)] Children with disabilities - • State Parties have a duty to make educational and vocational information and guidance available and accessible to all children on a non-discriminatory basis [Art. 28 (1)(d)] In the case of a refugee child - • State Parties have a duty to cooperate with the UN and other competent IGOs and NGOs to protect and assist a refugee child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. [Art. 22 (2)] (Bangladesh acceded to the ICRC in September 1990 and ratified the Optional Protocols 1 & 2 in February and January 2002 respectively)

  14. Right of citizens : Obligation of the State Citizen’s Right State’s Obligation right to know what governments are doing on their behalf positive obligation to ensure access with regard to information held by Government in all types of storage and retrieval systems (Joint Declaration adopted by the UNSR-FOE, the OSCE Rep. on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, 1999) & (UN Special Rapporteur on Freedom of Opinion and Expression – UNSR-FOE, 1997)

  15. Commonwealth Freedom of Information Principles • Member countries should be encouraged to regard freedom of information as a legal and enforceable right • There should be presumption in favour of disclosure and Govts. should promote a culture of openness • RTI may be subject to limited but narrowly drawn exemptions • Govts. should maintain and preserve records • Decision to refuse records should be subject to independent review (Communiqué of the Commonwealth Law Ministers’ Meeting 1999)

  16. Status of RTI around the World • Several countries guarantee access to information or freedom of information as a fundamental right • Over 50 countries around the world have information access another 30 will have them soon Commonwealth – only 11 countries including Jamaica, Trinidad & Tobago Sweden – oldest access law (1766) • All S. Asian countries have constitutional guarantees of freedom of speech , expression and/or information • At the national level, only Pakistan has an operational access law in S. Asia (ordinance issued in 2002) • 9 states in India have information access laws Central Freedom of Information Act, 2002 – not operational To be replaced by the Right to Information Bill tabled in December 2004

  17. Pressure for RTI Regime • Environmental concerns – * activists and NGOs • Consumer groups • People’s Movements against corruption e.g: * Mazdoor Kisan Shakti Sangathan – State of Rajasthan * Bhrashtachar Virodhi Andolan – State of Maharashtra • Judicial Activism * Supreme Court of India declared RTI - a part of fundamental right to freedom of speech and expression in at least 12 cases • Pressure from international community *Donor-driven imperatives

  18. Ideal components of RTI Regime • Constitutional protection for RTI – as in South Africa • A comprehensive legislation based on – Principle of maximum disclosure and minimum exceptions with – • a clear and simple application procedure • minimal fees not exceeding the actual cost of providing information • time limit for response to request (to give or not to give) • an independent appeals mechanism (Information Commission) • time limit for response to an appeal (to give or not to give) • strictly enforced penalty regime against unreasonable denial • maximum suo motu disclosure (especially schemes and projects) • efficient records management and training of officials

  19. Scope of ‘Right’ & ‘Information’ Right – • to seek and obtain certified copies of records and documents • to seek and obtain compiled information • to seek and obtain samples of materials • to inspect records and documents and take notes • to seek information or copies of records maintained electronically or any other retrievable format ‘Information’ includes contents of records such as – Files, notes, memos, maps, budgets, financial statements,balance sheets, statistical data, agendas, meeting minutes,ledgers, registers, muster rolls, drawings, photographs, CDs, models, emails, audio-visual tapes, scale models, microfilm, microfiche, reports, diaries, file notings, manuscriptsetc.

  20. Exemptions in RTI laws (India) • Records relating to sovereignty, integrity, security, safety, scientific or economic interest of the State and its relation to other states • Cabinet papers, notes from meetings of Ministers and Secretaries • Commercial and trade secrets that might affect competitiveness of firms (public and private) • Information that may lead to commission of offence or harm public order • Information that may harm investigation of crimes or the prosecution process or if disclosure is forbidden by a court • Personal or private information of individuals that has no bearing on public interest Good Practice – Partial Disclosure in the case of exempt records Provide access to non-exempt portions of records

  21. Other exemptions Excluded – • all kinds of Intelligence agencies • police force • paramilitary forces Information will not be given if – • the request is vague • it is already available in a published source • if its collection is too cumbersome and will require enormous resources Good Practice Information that cannot be denied to a Member of Parliament must not be denied to a requestor

  22. Improving Service Delivery • The Problem – • In Jawaja village, families living below the poverty line (BPL) always bought medicines from Primary and Community Health Care Centres. • Lack of proper medical care – frequent complaint • Pregnant women paid Rs. 300-400 during child birth • The Intervention – RTI applications were filed for access to these hospital records - • number of patients treated • types of medicines available • audit report of the medical department etc. Case Study – Rajasthan

  23. Improving Service Delivery • Records revealed – • BPL families should have received 70 types of medicines free • Pregnant women should have received free treatment • Govt. paid salaries to the X-ray machine operator though the machine was out of order for more than 2 years Many more irregularities came to the fore Action taken – At a public hearing officials committed themselves to providing free medicines to BPL patients Residents now acknowledge a marked improvement in service delivery Case Study – Rajasthan

  24. The Public Distribution System (PDS) : Enforcing Accountability • The Problem – • Govt. provides subsidised ration to poor people • However, ration dealers divert food to the black market for profit • BPL cardholders then have to buy the same food grains in the regular shops at high rates • The Intervention – • Citizens groups in Delhi used RTI law to obtain copies of registers of stocks, sales and ration cards from the F&CS Dept. • They held Jan Sunwais (Public Hearing) to present this information before the public and the media • Several public hearings were conducted to hold ration dealers and officials accountable Case Study – Delhi

  25. The Public Distribution System (PDS) : Enforcing Accountability • Between 2003 and 2004, the Food & Civil Supplies Dept. received over 100 applications for information on PDS • In most cases applicants were unsatisfied with the Dept.’s answers or just did not get requested records • They sought help from the Public Grievance Commission (PGC), which is the Appellate Authority in Delhi. PGC ordered release of records Action taken – • Subsequently, heavy penalties were slapped on corrupt ration shop owners and licenses were suspended • Some officials who refused to give information were fined • The Department has now been forced to initiate reforms and monitor the Public Distribution System Case Study – Delhi

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