The Daily Star: Bangladesh: Sunday, August 13, 2017.
Pakistani
Prime Minister Nawaz Sharif's removal from office was the subject of much
attention in Bangladesh and elsewhere. But buried within the story about
political turmoil and the future of civilian rule in Pakistan was a story about
leaked information and disclosure of assets.
The leaked
information belonged to a list of 11.5 million files that were obtained by a
German newspaper from the database of a law firm of Panama, which specialised
in setting up offshore corporations and accounts for its clients. Based on
them, the International Consortium of Investigative Journalists (ICIJ) had
released the so-called Panama Papers in early 2016. It followed a year-long
investigation which revealed how world leaders, politicians and businesses hide
and launder money, evade taxes and finance arms and drug deals.
The Panama
Papers had also named 32 Bangladeshi nationals and two Bangladeshi companies.
But while the Pakistani public undertook a vigorous campaign to have the
Pakistani links investigated, resulting in the downfall of their prime
minister, nothing like that happened in Bangladesh. After some initial noise,
the matter was left to the Anti-Corruption Commission, which formed a
three-member committee to probe the allegations. It has remained with them
since then.
This is
somewhat uncharacteristic of Bangladeshi civil society. This is the community
which fought Pakistani injustice and misrule for 23 years and played a key role
in the liberation of Bangladesh in 1971. Since then, our civil society provided
support to civilian politics to topple military-led governments and
re-establish democratic rule in 1991.
However, it
appears to have lost its sting over the years. What is happening in Bangladesh
today is, of course, not unique; it is a global trend. There is growing
recognition worldwide that the efficacy of street agitations is waning as
governments learn new, innovative and more repressive ways to control them.
Citizens must, therefore, consider other means, combining individual and
collective efforts, to compel governments to fulfil their obligations to the
people. And a foremost obligation is to provide good governance through
transparent and accountable mechanisms.
It is this
realisation that gave rise to a contemporary global trend to promote adoption
of legal instruments aimed at open and accountable governments. The specific
goal is to remove the veil of secrecy that has traditionally shrouded the work
of governments, through “disclosure” of hitherto classified information to the
public. This would help citizens to monitor the work of public officials and
check abuse of power and plunder of resources.
The above may
appear utopian given today's realities. But international experience has shown
that over time transparency laws have forced governments to make changes—if an
alert citizenry uses those laws.
The primary
objective of “disclosure laws”, as they are popularly known, is to fight
corruption and promote good governance. Fighting corruption requires a
multidisciplinary approach which includes fighting bribery of public officials,
elimination of corrupt candidates from contesting elections, combating
corruption in fiscal policy, public and private sector governance, etc.
A key
mechanism, at the government level, is to set up anti-corruption bodies such as
the Anti-Corruption Commission (ACC) of Bangladesh and the Central Bureau of
Investigation (CBI) of India. At the non-governmental level, there are
institutions like Transparency International Bangladesh (TIB), which is the
Bangladeshi branch of Transparency International, dedicated to fighting
corruption globally. Disclosure laws complement this process. Some of them
specifically empower citizens to play a role.
Laws relating
to asset declarations by public officials and members of the government are
among the most prominent disclosure laws. These are aimed at preventing
conflict of interests or identifying illicit enrichment. Laws for Foreign
Exchange Control keep politicians or public officials from holding overseas
bank accounts, largely to prevent money laundering. There are similar laws to
combat other types of corruption.
In
Bangladesh, persons seeking to contest parliamentary elections must declare,
under Article 12 of Representation of the People Order (RPO) 1972, their assets
and other pertinent particulars when registering their candidature. However,
once elected, there is no legal requirement for continuing disclosure.
Similarly, Rules 13-17 of Government Servants (Conduct) Rules 1979 require most
civil servants to disclose their assets and financial involvements, including
those of their spouses and children, at the time of entry into service and
annually thereafter. Under the Money Laundering Prevention Act 2009, overseas
account holders are barred from transferring any amount of money to that
foreign account from his/her earnings in Bangladesh. Such transfer is
considered money laundering.
However,
while these laws require disclosure only to a public agency and not to the
public directly, the Right to Information Act 2009, foremost among disclosure
laws, fills the gap. It empowers citizens to seek disclosure of almost all
information, except a few categories, held by public authorities. Citizens who wish
to play a role in promoting transparency in government work and fight public
corruption, could not have a better tool. Use of disclosure laws could be one
of the most effective means to strengthen democracy and promote good
governance.
It may be
argued that some of the information provided under disclosure laws may belong
to the “exempt” category under the RTI Act. But this has not been proven yet.
The scope and extent of the exemption clauses under Section 7 of the RTI Act is
still waiting to be legally tested. For example, if asset and other
declarations by government servants or election candidates are claimed to be
“exempt information” under the RTI Act on the grounds that they are “private
confidential information”, it may be challenged effectively. One argument would
be that any information provided by citizens to public authorities under any
legal mechanism to promote public interest should be considered public
information, and no longer private, and hence disclosable.
A constant
endeavour of citizens should, therefore, be to stretch the scope of disclosure
laws, through their use, to ensure transparency. If a public authority,
including the Information Commission, interprets a legal provision
restrictively, the intervention of the judiciary could be sought by arguing the
objective test.
Greater civil
society attention to such matters would be helpful also to supplement
individual efforts. Imagine the likely impact on political parties if a
substantial number of citizens start using RTI to seek information disclosed by
candidates to the Election Commission under RPO and expose false or untrue
claims. Hopefully, more care would be taken not to put up candidates whose
honesty and integrity could be questioned.
As the
country moves towards general elections next year and the civil society gears
up its efforts towards more participatory democracy and open government, they
must go for specific commitments from political parties to include in their
election manifestos effective measures to strengthen disclosure laws. More
particularly, they should insist that the relevant particulars of their
candidates in the elections are disclosed in good time for public scrutiny.
Citizens should not have to depend upon Panama Paper-type leaks to learn about
the wrongdoings of their elected representatives or public servants.
At the same
time, civil society leaders and social activists must promote greater public
awareness of disclosure laws and the importance of their use by citizens in
large numbers. Collective efforts by citizens to exercise their watch-dog role
on the government, as foreseen in the RTI Act, may alone be more productive in
the long run than street agitations
(Shamsul Bari
and Ruhi Naz are Chairman, Research Initiatives, Bangladesh (RIB) and Project
Coordinator (RTI section), RIB, respectively.)
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