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

2. Good Governance in Bangladesh Limiting Factors – Corruption, Opacity & Lack of Accountability Good Governance in Bangladesh Limiting Factors – Corruption, Opacity & Lack of Accountability (Excerpts from - Preparation of PRSP : A Status Report, Govt. of Bangladesh, July 14, 2004) Requirements of Good Governance – (among others) Transparency and accountability should be ensured Official Secrecy Act Should be modernised   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

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 promoting transparency, accountability and fair administrative and judicial institutions.   They should also foster full public participation in sustainable development policy formulation and implementation. [ Johannesburg Plan of Implementation of Agenda 21 World Summit on Sustainable Development (Rio+10 Summit), 2002 ] Bangladesh is a signatory to this document   All countries should promote public participation, including through measures that provide access to information regarding legislation, regulations, activities, policies and programmes…

6. Bangladesh reacts after WSSD 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. 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 - freedom of information commission “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.” (among others ) “…freedom of information enhances accountability of the government improves decision-making … and provides a powerful aid in the fight against corruption” Communiqué from the Commonwealth Law Ministers’ Meeting, 1999 “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, 1980 Report of the Commonwealth Expert Group on Democracy and Development, 2003 Bangladesh is a member of the Commonwealth Right to Information(RTI) in a Democracy

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 Universal Declaration of Human Rights (Art. 19) International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights (Art. 19) (Bangladesh acceded to the ICCPR in December 2000)

9. Right to information & E-S Rights (Bangladesh acceded to the ICESCR in January 1999) 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] ICESCR General Comment #12, 1999 [Art. 23] 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… Right to Adequate Food

10. Right to information & E-S Rights (Bangladesh acceded to the ICESCR in January 1999) 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)] ICESCR General Comment #14, 2002 [Art. 14] Right to maternal child and reproductive health includes access to information (on these issues) 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)]

11. Right to information & E-S Rights (Bangladesh acceded to the ICESCR in January 1999) 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) ICESCR General Comment #13, 1999 [Art.49, 54 & 59] 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

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 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)] 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)] Overarching right of access - Children with disabilities - 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)] In the case of a refugee child - (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 (UN Special Rapporteur on Freedom of Opinion and Expression – UNSR-FOE, 1997) (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) 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 &

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  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 Sweden – oldest access law (1766) Commonwealth – only 11 countries including Jamaica, Trinidad & Tobago To be replaced by the Right to Information Bill tabled in December 2004 another 30 will have them soon

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

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

19. Scope of ‘Right’ & ‘Information’ Right – to seek and obtain certified copies of records and documents to seek and obtain certified copies of records and documents to seek and obtain compiled information to seek and obtain compiled information to seek and obtain samples of materials to seek and obtain samples of materials to inspect records and documents and take notes to inspect records and documents and take notes to seek information or copies of records maintained electronically or any other retrievable format 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, manuscripts etc.

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 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 Cabinet papers, notes from meetings of Ministers and Secretaries Commercial and trade secrets that might affect competitiveness of firms (public and private) 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 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 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 Personal or private information of individuals that has no bearing on public interest Partial Disclosure in the case of exempt records Provide access to non-exempt portions of records Good Practice –

21. Other exemptions  all kinds of Intelligence agencies  police force  paramilitary forces Excluded – 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 – Case Study – Rajasthan   Pregnant women paid Rs. 300-400 during child birth   In Jawaja village, families living below the poverty line (BPL) always bought medicines from Primary and Community Health Care Centres. The Intervention –   number of patients treated   types of medicines available   audit report of the medical department etc. RTI applications were filed for access to these hospital records -   Lack of proper medical care – frequent complaint

23. Improving Service Delivery Case Study – Rajasthan 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

24. The Public Distribution System (PDS) : Enforcing Accountability The Public Distribution System (PDS) : Enforcing Accountability The Problem –   However, ration dealers divert food to the black market for profit   Govt. provides subsidised ration to poor people   BPL cardholders then have to buy the same food grains in the regular shops at high rates Case Study – Delhi 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

25. The Public Distribution System (PDS) : Enforcing Accountability The Public Distribution System (PDS) : Enforcing Accountability Case Study – Delhi   Between 2003 and 2004, the Food & Civil Supplies Dept. received over 100 applications for information on PDS   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   The Department has now been forced to initiate reforms and monitor the Public Distribution System   Some officials who refused to give information were fined   In most cases applicants were unsatisfied with the Dept.’s answers or just did not get requested records