The Daily Star: Bangladesh: Saturday, September 15, 2018.
A
positive outcome of the contemporary trend towards authoritarian rule by
democratically elected governments around the world is that it is providing a
welcome boost to the limping Right to Information (RTI) or Freedom of
Information (FOI) movements globally. Faced with shrinking democratic spaces,
citizens' groups and RTI/FOI enthusiasts are coming together to form national,
regional and international watchdog bodies to share their strengths,
identifying ways to counter the trend. The need for citizens to use RTI to
question public authorities on why and how they do what they do has perhaps
never been so important.
RTI
law allows citizens to seek information from government and public bodies on
matters relating to their functions. The idea is to make them more transparent
in their work and accountable to the people, the two basic requirements for
democracy. If nothing else, citizens' queries can at least cause consternation
for concerned authorities. The hope is, over time, this will lead to better
governance.
RTI
groups are discovering the value of sharing and discussing experiences in
different countries and devising strategies based on good practices. The
immense reach of the internet and social media is playing a stellar role in
this regard.
Though
many governments have adopted RTI/FOI laws only recently, most of them
increasingly feel uneasy about them. As they face sensitive RTI requests from
citizens, they begin to worry about the impact on their hitherto unbridled
exercise of power and authority. Hence, they quickly develop a negative stance
about the law. International RTI/FOI groups see this happening all over the
world.
Governments
are also discovering that while it is easier to disregard or abuse many other
laws of the land, this is not true for RTI/FOI. The law contains specific
sanctions against non-compliant public officials, who may be summoned,
reprimanded or fined by the Information Commissions. Many in the government,
therefore, wish to water it down through amendments. This is motivating RTI/FOI
watchdog groups around the world to come together and fight this trend through
collective wisdom.
Resistance
to RTI/FOI instruments comes not only from governments but also from
politicians and their parties. The latter take the view that political parties
are not “public authorities” and, therefore, not susceptible to RTI queries
from citizens. RTI activists take the view that as political parties ostensibly
seek to promote public wellbeing and owe their existence to public support,
they must be accountable to the people—political parties challenge the legal
validity of this position.
This
explains why only seven out of over 115 countries that have adopted RTI/FOI
Acts have specifically included political parties as falling within the
definition of “public authorities”. As the Acts are normally adopted by
national parliaments, most of whose members belong to political parties, the
latter have managed to keep themselves formally outside the fold of the law in
most countries.
Their
position has, of course, been challenged by citizens at National Information
Commissions and/or in the court of law. In a landmark case, the Central
Information Commission (CIC) of India ruled that political parties are indeed
covered by the Indian RTI Act 2005. But the political parties have so far
refused to abide by the ruling. It has provided a rare occasion for them to
unite. Government efforts to undo the CIC decision by amending the RTI Act
failed in 2013 due to dogged resistance by Indian RTI groups. But similar efforts
continue.
In
a more positive development, the South African Constitutional Court has
recently held that the right to access information and the entitlement to
exercise an informed right to vote, implicitly demands that information on the
private funding of political parties and independent candidates be made
reasonably accessible to the public. The case was precipitated by an RTI
request for information from certain political parties about their private
funding.
The
Constitutional Court highlighted the centrality of information to the electoral
process and warned against political candidates being able to pick and choose
what information should be made available to voters. It also indicated that
access to information on private funding could deter corruption and avoid the
appearance of corruption in politics. In Bangladesh, the question of whether
political parties come within the ambit of the RTI Act has not been directly
contested yet. But, it indirectly featured in a judgement of the High Court
(HC) in connection with a writ petition filed by Shujon, a civil society
organisation, against a decision of the Information Commission of Bangladesh.
The
decision related to a request by Shujon to the Election Commission (EC), asking
for copies of audited annual statement of accounts of political parties, which
the latter regularly file with the EC. The EC declined, claiming it was “secret
information” for which permission must be sought first from the parties
concerned. When Shujon challenged this position to the Information Commission,
the latter sided with the EC, whereupon Shujon filed the writ petition. The HC
judgement declared Information Commission's decision to “have been passed
without lawful authority and is of no legal effect”.
The
judgement firmly stated that: “Ignoring the people's right to know, keeping
them in dark and playing hide-and-seek with them in a democratic country like
us where all powers belong to the people and their mandate is necessary for
ruling the country, no registered political party can be allowed to take the
stand that the audited statements submitted to the Election Commission were
'secret information'.”
It
went on to add that: “In modern democratic countries, citizens have a right to
information in order to be able to know about the affairs of each political
party which, if elected by them, seeks to formulate policies of good
governance. This right to information is a basic right which the citizens of a
democratic country aspire in the broader horizon of their right to live. This
right has reached a new dimension and urgency which puts better responsibility
upon those political parties towards their conduct, maintenance of transparency
and accountability to the public whom they aspire to represent in the
parliament.”
The
above exposition of our High Court's view on the role of political parties in a
democracy, should encourage RTI enthusiasts in Bangladesh to test the waters by
sending RTI requests directly to the political parties. If they claim not to be
covered by the RTI Act, the judgement would be useful to challenge it both at
complaint and writ stage.
More
generally, the time is also right for citizens groups to seek, in the context
of the forthcoming general elections, a clear commitment from the political
parties to accept their inclusion under the RTI Act and to take the law forward
by removing all barriers to its proper utilisation by citizens. This should
feature clearly in their election manifestos. The government should also use
the occasion to restate its full commitment to the RTI Act 2009.
And
in the larger context, let the international Right to Know Day on the 28th of
this month be the occasion for members of the RTI Forum of Bangladesh to join
forces with the global RTI/FOI movement to turn the law into an effective tool
for good governance worldwide. In the face of shrinking multilateralism in
inter-governmental affairs today, let the people-to-people cooperation
contribute to making governments everywhere more transparent and accountable to
their population.
(Shamsul
Bari and Ruhi Naz are Chairman and Project Coordinator (RTI section)
respectively of Research Initiatives, Bangladesh (RIB).)