Focus on Rights

South Asian initiatives on freedom of information
The state of near siege that prevails in Bangladesh is reminiscent of what Sri Lankans went through not so many years back, when the war between the Tigers and government forces came to Colombo in its regular suicide bomber attacks. Frighteningly random attacks by fundamentalist groups targeting even cultural groups perceived as engaging in "un-Islamic" activities have lent an uneasy and almost eerie tension to the daily activities of the Bangladeshi people. However, despite the fact that the country's institutional culture had been a historical casualty of decades of military rule, (further negatively affected by the stepped up patterns of fundamentalist violence), there appears to be a movement for institutional accountability from within which Sri Lanka can do much to learn from.

Currently, one such initiative is a vigorous lobbying process for the enacting of a Right to Information Act. In many respects, Sri Lanka and Bangladesh share common dysfunctional colonial legacies (as indeed with the rest of South Asia) in archaic laws that prohibit the sharing of information, including Official Secrets Acts that are unsettlingly similar in the culture of secrecy that they promote. As in this country, Bangladesh too has a Right to Information Act in draft form on the legislative table and furious activism is now underway domestically to finetune its provisions with the help of regional expertise.

The fact that Bangladesh needs an information law is undeniable. On one level, obstacles faced by citizens and journalists in obtaining access to official information parallels, or is perhaps worse than what prevails here. The non-publication of official reports relating to corruption or political killings is a common pattern. From another perspective, the extent of physical violence faced by the media is also marginally worse.

For example, in 2004, two hundred and sixty seven journalists have been at the risk of bodily harm as a result of their work in the year 2004. Out of these, five lost their lives while over two hundred were grievously injured. The use of contempt powers against the media by the government and public officials has also increased. One such case was a recent verdict handed down on an editor and publisher of a leading national daily for publishing an account of the manner in which a junior judge had falsified his educational qualifications. The media defence was that the published allegations were factually correct.

In this context, national level lobbying to enact a freedom of information law is creditable. A draft law proposed by the country's Law Commission is now under discussion. Compared to Sri Lanka's draft Freedom of Information Act, Bangladesh's Law Commission draft inclines on the conservative. Its exemption clauses are long and broadly worded as for example, its general reference to the clampdown of information that would 'affect the security and integrity of Bangladesh." The exemptions also do not have any public interest override. Even more problematically, the law does not prevail over an already existing Official Secrets Act, unlike the Sri Lankan draft.

Interestingly however, it has defined the categories of authorities who are covered by the proposed law in a far wider manner than what the Sri Lankan draft act contemplates. The Bangladeshi draft includes not only government departments and ministries but also any company, corporation, trust, firm, society and association (whether owned by the government or private individuals) but registered with the government. The intention of the Law Commission to bring in entities such as non-governmental organisations within the ambit of the law is clear when one examines its working paper on the draft. This departs from the Sri Lankan draft which does not have such a wide reach.

It must be recalled that clause 34 of Sri Lanka's draft provides for a limited whistleblower protection. This clause stipulates that notwithstanding any legal or other obligation to which a person may be subject to by virtue of being an employee of any public authority no employee of a public authority shall, be subjected to any punishment disciplinary or otherwise for releasing disclosing any official information. Such information however must be permitted to be released or disclosed on a request submitted under this Act. The employee concerned must also act in good faith and in the reasonable belief that the information was substantially true and such information disclosed evidence of any wrong doing or a serious threat to the health or safety of any citizen or to the environment.

Free expression advocates are of the view that the provisions of the draft Act should be further finetuned. It has been urged that the definition of "public authority" be broadened to at least include private bodies which exercise public functions.

The exemption from coverage of the Act for Parliament and Cabinet under sub-section (b) of the definition should be deleted. In addition, proposed section 34, intended to protect whistleblowers should be expanded beyond disclosure permitted by the act.

Sri Lanka's draft, conceived of during the brief administration of the United National Front government in 2003, had been pushed to the background by the Kumaranatunge Presidency thereafter. One hopes that the political will to enact the FOI will become more apparent in the months to come for which concerted efforts by activists and the media may be imperative.

From a regional perspective, the necessity for a South Asian initiative on right to information laws in the region is now quite evident. As in many other instances, India has pointed the way by the recent enactment of a comprehensive Right to Information law which draws on the extensive fight for information by grassroots activists in that country for over several decades. Bangladesh, as in the case of Sri Lanka, is presently fighting to achieve what India has demonstrated. It will be to our profound disquiet if that much cannot be accomplished to the credit of our countries.

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