Opinions cannot be formed in a vacuum, for any opinion thus formed should be and could be checked for its veracity against available facts. Therefore, one cannot effectively and genuinely express any opinion in the absence of necessary facts available to the person. If the necessary information is not freely flowing, a person does not [...]

Sunday Times 2

Right to know: The secret Govt. or Govt. secrets!

-The need for a Right to Information Act in Sri Lanka -This article is based on a speech delivered by the writer on Monday at the BMICH when the Sri Lanka Press Institute launched a book titled “Right to Information: A Guide to Advocates”. The book was authored by Gehan Gunathilleke, a constitutional lawyer and human rights activist.

Opinions cannot be formed in a vacuum, for any opinion thus formed should be and could be checked for its veracity against available facts. Therefore, one cannot effectively and genuinely express any opinion in the absence of necessary facts available to the person. If the necessary information is not freely flowing, a person does not have any other means but suspicions, rumours, and conjectures on the basis of which he/she is compelled to form an opinion.

Today, information is considered as a critical commodity. Chairman of Google, Eric Schmidt, observed that ‘we have an opportunity for everyone in the world to have access to all the world’s information. This has never before been possible. Why is ubiquitous information so profound? It’s a tremendous equaliser. Information is power.’ Information is intrinsically linked to knowledge. The English philosopher Sir Francis Bacon had stated that knowledge itself is power. Since knowledge is gained through information, possession of such information or having access to them makes people extremely powerful, capable of controlling everything in others’ lives.

Mr. Thamilmaran delivering the keynote address at the launch

Maintaining secrecy means having exclusive control over certain areas of knowledge. Logically, then, denying information is denying power. Empowering the people is a must in democracies for the sake of full exercise of the sovereign power of the people in those matters which affect their day-to-day lives. The natural asymmetry of information between those who govern and those who are governed would gradually lead to the decay of the system of governance.

Openness is a concomitant of a free society. Being keepers of secrets, governments or public authorities are expected to be open in their activities. What is the benefit accruing to them by acting in secrecy? Is it always in the interest of the government alone? Do governments serve the interests of someone else other than the public? These are some of the questions that warrant detailed discussions on the conceptual basis of the right to information.

Public governance demands openness, while secrecy makes it closed for public participation. In any organisation, discipline is maintained in this way: either you raise your voice or exit. Since the government is the largest public organisation, it is not possible for the citizenry to exit from it for the sake of maintaining discipline. Then the only option remains: raise your voice! Since citizens cannot exit it is for the government to listen to the voice of the people. In the absence of relevant information available, raising voice is futile as it would be based on abstracts.

A quarter of a century ago, the Indian Supreme Court had this to say on secrecy:

“Now, if secrecy were to be observed in the functioning of government, and the processes of government were to be kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority, for it would be all shrouded in the veil of secrecy without any public accountability. But if there is an open government with means of information available to public, there would be greater exposure of the functioning of the government and it would help to assure the people a better and more efficient administration. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration. It has been truly said that an open government is a clean government and a powerful safeguard against political and administrative aberration and inefficiency.”

The right to information is also premised on the idea that public participation cannot be confined to voting at periodical elections. There should be a free flow of information reaching the electorate so that it could exercise its right to vote effectively at pre-determined but reasonable intervals.
Jean Rousseau’s theory of popular sovereignty suggests that a ruler cannot rule without the consent of the ruled. In that sense, the consent is never real consent unless it is informed consent. Rousseau’s idea of popular sovereignty casts it as a collective one rather than an individual right although it is often sought to be exercised by individuals.

Various international and regional bodies have also endeavoured to adopt resolutions and treaties incorporating the right as a basic human right. States by becoming parties to those treaties voluntarily undertake the obligation to guarantee the right to the people within their respective territories.

Author Gehan Gunathilleke presenting a copy of his book to Sunday Island Editor Manik de Silva at Monday’s launch at the BMICH. Pix by Indika Handuwela

Thus, Article 19 of the UDHR declares that:

Everyone has the right to…seek, receive and impart information and ideas through any media and regardless of frontiers.

The UDHR further states in Article 21(3) that:

The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or equivalent free voting procedures.

It is submitted that this provision is more important than the previous one since it is in this provision that the very foundation of democracy is laid down. To express their free will, people need the free flow of information. Democracy is only for those informed citizens. Here, as stated above, the relevant information is not what is supplied to the people but what is sought and received by them. This makes democracy vibrant and responsive.

Article 19 (2) of the International Covenant on Civil and Political Rights of 1966 (ICCPR), a legally binding human rights instrument which has around 170 State parties at present, states:

Everyone 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…

Article 25 of the ICCPR also speaks about the right to participate in public life which demands periodic and, free and fair elections. Again, such participation cannot be of any use if the participants are not informed individuals but are merely ‘receivers of the limited supply’.

Strictly speaking, then, all those 170 States are legally bound to guarantee the right to information enabling the people to receive the necessary information either from public or private sources. However, as of today, only 85 States have provided for constitutional protection of the right to information or taken legislative measures to that effect. Some of them provide express guarantee to the right to information or the right to know, while a few of them provide implied recognition to the right.

Legal framework and the scope of the right

State parties by way of performing the obligations that they have undertaken proceeded to take legislative measures to give effect to those provisions in the respective instruments. At least, in not less than 60 States, the right to information enjoys the status of constitutional guarantee. In addition, another 25 States have afforded legislative protection to the right.

It is not surprising to see that, as in the case of many universally guaranteed rights, the right to information also is subject to a good number of exemptions. There may be many valid reasons for which the right can be restricted and access to information could be denied. Apart from the quintessential nature of some of these excuses, the needs for such limitations have their own merits. However, it is also not surprising to see that these exemptions remain as the most contentious subjects for rights advocates.

A common feature that cuts across many of these national legislations seems to be the absolute exemption given to certain information from being disclosed. They belong to a particular class where protection from disclosure is beyond any question. For others, exemption depends on the harmful consequences the disclosure might bring in. Since exemption imposes restrictions on the right of access to information, from a rights perspective, these clauses should be defined as narrowly as possible keeping in line with the international obligations undertaken by the respective States.

Who can seek and receive?

The core value of the right of access to information is evident in opening up the standing of the applicant for information. In fact, there cannot be a question of standing of the seeker or receiver of information. It is being interpreted the other way around, i.e., whether the application is made to the correct authority. No one has to prove any direct interest or stake in the matter relating to which the information is sought by her/him. For example, Section 1 (1) of the British Right to Information Act of 2000 confers the general right of access to information upon ‘any person’. The identity of the applicant is immaterial. The overarching application of the provision tends to leave room for even people residing abroad to seek and receive such information from public authorities.

Similarly, Section 11 of the Commonwealth of Australia Freedom of Information Act, 1982 provides that ‘every person has a legally enforceable right to obtain access …’

The US Federal Freedom of Information Act of 1966, lastly amended in 2007, provides extensive rights to the public to get involved with public documents. The access is made possible to anyone without any restriction as to nationality or any other status. The restrictive approach adopted during the George Bush (Jr.) regime has been relaxed and now, a more pro-disclosure approach is adopted by Obama’s administration.
Both the Indian Right to Information Act, 2005 and the Pakistani Freedom of Information Ordinance, 2002 confine the right only to their respective citizens.

In South Africa, since the Constitution itself guarantees the right of access to information, in order to facilitate the exercise of the right in a meaningful manner, the legislature passed the Promotion of Access to Information Act in 2000. Another novel feature of the South African law is the extension of the guarantee of the right against the private sector as well.

What is available?

Liberty means that a personis free to do whatever he/she wants to do. Similarly, in the case of access to information, it is argued that a person should have the right to seek and receive whatever the information he/she wants, unless it is exempted from being disclosed by law. Further, all the exemption clauses should be narrowly interpreted for the sake of maximising the chances of making information available to people. As such, the focus is shifted not to what is available but to why it is not available. As stated earlier, this is one of the reasons for the exemption clauses becoming more contentious. The emerging jurisprudence in this respect is encouraging and influential.

Matters may be relating to national security, foreign relations, environmental risks, financial markets, or official secrets, but it is for the government to adduce convincing reasons for denying access to such information.

Since the other side of the coin of seeking information is the freedom to receive information, it prohibits a government from blocking a person from receiving information that is forthcoming. If a government stops one of its citizens from receiving a magazine to which he/she has subscribed, that in itself violates the freedom.

European jurisprudence suggests that the right can even be extended to receiving information relating to criminal investigations that are in progress. The operation of the presumption of innocence does not prevent the State authorities from informing the public about criminal investigations that are in progress. However, it requires that proper care should be exercised in ensuring that the presumption of innocence is respected.

Another interesting phenomenon in this domain is the use of the doctrine of public interest by both those who seek information and those who deny its disclosure. As a general rule, many rights are subject to limitations imposed by laws which quite often invoke public interest as a ground for limiting the exercise of those rights. However, when it comes to freedom of information, the trend seems to be using the tool of public interest in favour of those who seek information. It is in the public interest that information should be furnished and not the other way around.

As the rationale for guaranteeing the right of access to information is based on public interest, and it can be claimed by anyone for whatever reason, invoking public interest in defence of denial of disclosure is not only illogical but also negates the very conceptual foundation of the right.
What do we need?

The Freedom of Information Act (FOIA) which is needed for Sri Lanka can be modelled on the Commonwealth model FOI Bill. It was prepared by the Commonwealth Secretariat in 2002 subsequent to the Commonwealth Heads of Government Meeting in 1999.

In 2003, Paragraph 7 of the Aso Rock Declaration issued at the Commonwealth Heads of Government Meeting at Abuja, Nigeria in 2003 states that:

“We commit ourselves to make democracy work better for pro-poor development by implementing sustainable development programmes and enhancing democratic institutions and processes in all human endeavours. We recognise that building democracy is a constantly evolving process. It must also be uncomplicated and take into account national circumstances. Among the objectives we seek to promote are… the right to information (emphasis added)”.

Among the South Asian members of the Commonwealth, Sri Lanka lags behind Pakistan, India and Bangladesh. Although in Fernando v. SLBC, the Supreme Court recognised the right via freedom of expression (as one of the implied guarantees) no duty is imposed on any public authority to furnish information. On the other hand, legislation like the Official Secrets Act of 1955 guards against such release of information to the public. This is where the need is strongly felt to have an enforceable right of access to information.

Finally, what is more perplexing in the Sri Lankan context is the apathy shown in many quarters. Article 121 (1) of the Constitution provides for challenging Bills by citizens within a short period of seven days. It is the right of the public and is not limited to any category of people. The implication is that citizens can make use of this facility based on available knowledge/information on the relevant matter. Of course, it is for the citizen to seek the information but if there is no information readily available and no one is under any obligation to provide any information so needed, on what basis can a citizen challenge the Bill? Can it be presumed that this provision entails the availability of necessary information?Otherwise, it is a case of someone getting up from his bed in the morning and rushing to the Supreme Court to challenge the Bill knowing nothing about the relevant information. Is it a prudent conclusion one can arrive at? Does it go along with Article 3 of the Constitution?

An Argentinean case gives the answer. The Supreme Court of Justice has ruled that a republican form of government gives rise to an obligation of transparency because a republic requires that government actions be available to the public.
(The writer is the Dean, Faculty of Law, University of Colombo)

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