Ref: New Age (Tuesday, 05 July, 2011)
IN A country where a large majority of the population live below the poverty line, corruption is keeping the Bangladesh economy from improving at all levels. The Right to Information is referred to in various ways across the world. Some talk of ‘freedom of information,’ others talk of ‘access to information’ or ‘the right to know,’ but all these terms have the same meaning – people have a human right to seek and receive government held information. Over 88 countries, from all regions of the world, have either enacted Right to Information laws or put in place systems to provide access to government–held information. The RTI Act was notified in the Bangladesh Gazette on Monday, April 6, 2009. The civil society hailed the passing of the act as the groundbreaking decision of the government. The rationale of this Act is; since all powers of the Republic belong to the people, it is necessary to ensure right to information for their empowerment. Similarly, ACCA (Anti –Corruption Commission Act), 2004, aims to prevent corruption and other corrupt practices in the country and to conduct inquiry and investigation for specific offences. The RTI is a major legislative step in the Bangladeshi anti-corruption and transparency movement. The sprit of democracy and the right to information is considered as a fundamental human right everywhere in the world.
Access to information has the potential to empower people to engage themselves meaningfully in the democratic process with a view to increasing transparency and accountability in the mechanisms of governance, reducing corruption, and, more generally, achieving development goals. Although the constitution of the People’s Republic of Bangladesh does not make a clear reference on right to information, several articles such as 7, 32 and 39 lays the foundation of recognising it as a right. In particular, Article 39 (2) guarantees the ‘right of every citizen of freedom of speech and expression and b) freedom of the press.’ However, it states that this is subject to any reasonable restrictions imposed by law in the interests of the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence (The constitution of The People’s Republic of Bangladesh).
The RTI Act has 8 chapters and 37 articles. The Article 7 under Section 2 provides the list of exemptions in regard to releasing information and which is mostly in line with the Article 39 (2) of the constitution of Bangladesh. The aim of RTI Act is that it would ensure the transparency and accountability of all pubic, autonomous and statutory organizations and of their private institutions as well corruption of these organisations will be reduced. It is against this context that this feature explores in what manner RTI Act 2009, in collaboration with ACCA 2004, can establish transparency and fight corruption.
The RTI Act 2009 of Bangladesh adopted in the parliament marks culmination of a process that can be traced from 1983 Press Commission recommended adoption of an RTI Act, through the Law Commission‘s working paper of 2002 and the civil society demand for an Act that intensified by 2004. Nearly 40 organisations led and supported by the Manusher Jonno Foundation, a non-government organisation, drafted the Act and lobbied with the government. A range of cross-sectoral stakeholders, including legal experts, national and local NGO representatives, international development partners, media representatives, academics and public officials explored challenges and strategies for effective implementation of the RTI Law. The caretaker government passed the RTI ordinance 2008 leaving it for ratification by the elected government. Meanwhile RTI occupied a central position in pubic discourse as reflected in media and eventually in the manifestos of the major political parties. Through the adoption of the ACCA 2004 Bangladesh has already entrusted wide ranging powers to the Anti-Corruption Commission. The government of the People’s Republic of Bangladesh acceded to the United Nations Convention against Corruption in February 2007. Shortly after accession, between October 2007 and January 2008, a comprehensive analysis of existing national laws, institutions and procedures were undertaken to identify gaps in the country’s compliance with the Convention. In April 2007 an Inter-Ministerial Committee was formed to conduct UNCAC through Bangladesh Compliance and Gap Analysis. BCGA found that existing laws of Bangladesh are largely in compliance with the UNCAC requirements on criminalisation. Further, in 2008, significant changes have occurred nationally with regard to anti-corruption efforts. The most notable outcomes are the Money Laundering Prevention Act, 2009; Anti Terrorism Act, 2009; Representation of the People (Amendment) Act, 2009; Right to Information Act, 2009. To strengthen the institutions and laws particularly responsible for reducing corruption, the government developed an action plan for compliance to provide operational guidance on the implementation of the UNCAC provisions. The Action Plan aims to establish good governance by reducing corruption in different segments of Bangladeshi society. Nevertheless, corruption persists in Bangladesh.
Linking the Right to Information with the fight against corruption
RTI and ACCA, in conjunction, could be used to increase transparency and accountability, reducing corruption. Both the Acts are empowered with the power to inquire, investigate offences placed by the people. Both commissions are partially independent and non-constitutional. In regard to power and functions Information Commission can inquire and dispose of complaints including non-appointment of an officer-in-charge by authority; refusal to accept a request for information; information left unattended within the time-limit specified under this Act [See Article 9(1-2);demand of an unreasonable fee; delivery of incomplete, misleading and false information; inquiry upon a complaint raised under this Act (See chapter 7 Article 24). In a similar manner ACA’s power and functions are: inquiry and investigation of offences set out in the schedule; file and conduct cases; inquire into allegations of corruption on own initiative or an application filed by an aggrieved person or by any person on his/her behalf; duty by anti-corruption laws; review measures for preventing corruption and submit recommendations to the president.
General function of IC is to organise seminars, symposiums and workshops in raising awareness on RTI; advise and provide support to GOs and NGOs for preservation and implementation of RTI; provide technical and other support to the authorities to ensure RTI; establishment of a web-portal; oversee any other law on RTI. ACA’s responsibilities include research on the prevention of corruption, promote the values of honesty and integrity; arrange seminars, workshops to identify the sources of corruption, inquire, investigate, file cases and determine the processes of approval by the commission, perform works necessary for preventing corruption.
In regard to appeals and complaints filed under RTI Act, Code of Civil Procedure 1908 will be applicable; IC or Chief Information Commissioner may exercise powers of Civil Court in respect of following matters, namely, summon and enforce attendance of persons, compel to give oral or written evidence on oath, examine and inspect information, receive evidence on affidavit, requisite information from any office, issue summons for witnesses or documents (See Section 28).
To address complaints under ACC the code of criminal procedure is being followed, namely: summon witnesses, ensure their appearance and interrogate them under oath; discover and present any document; take evidence under oath; call for public records or its certified copies from any court office; issue warrants; any other matter required for realising and fulfilling the aims and objectives of this law [See Article ACCA 19(1)]. While the IC or CIC have the power to examine on spot any information kept in custody with any authority; the ACC can empower a subordinate officer to investigate corruption against anyone or to investigate any offence. Under RTI, if deciding on a complaints against Designated Officials they will be responsible to provide information and will be liable for fine of Tk 50 per day up to maximum of Tk 5000 (See Section 27). On the contrary, ACC is empowered to arrest that person in case of justifiable reasons that the person is the owner or in possession of moveable property not compatible with known and declared sources of his/her income (See ACCA Article 21). RTI has the freedom to override any existing law creating impediments in providing information and such laws shall be superseded by the provisions of this Act if they become conflicting with the provisions of this Act (See Section 3).
Earlier in Bangladesh, the government did not have any specific ordinance that related to directly to people’s right to know. Rather were prohibited by certain clauses. These clauses are Official Secret Act 1923, Evidence Act 1872, Rules of Business 1996, Government Service (Conduct) Rules 1979, and the oath (affirmation) of secrecy under the constitution act as an impediment and barrier to getting access to information. The clause 5 of the official Secrets Act has been designed to protect military and strategic secrets on many occasions, it has been the most popular excuse of the government officials to deny information. Section 5 also states ‘If any person having in his possession or control any secret ... (means information) ...(a) wilfully communicates ...(b) uses the information ...(C) retains the information...(d) fails to take reasonable care of ...he shall be guilty of an offence under this section. The recent Rules of Business specifically bars government officials from disclosing information to members of press. Certainly, government servants are still bound by both their oath and service rules to refrain from disclosing information. However, through the RTI Act section (3) while citizens would seek information all these restrictions can be overridden, except in regard to exemptions listed in (Section 2 Article 7) of the RTI ACT.
Likewise, ACC may call for any information from the government or any authority under government; if not received within the time provided, then the commission may inquire into and investigate the allegations; the government or the concerned authority or organisation under the government shall cooperate with the commission in the manner determined by ordinary or special orders of the commission (See ACCA Article 23).
Both the Acts have been both welcomed and criticised as it happens with all the laws, particularly with the list of exemptions in RTI. The major opportunity is that RTI Act could most effectively be a catalyst for institutionalising democracy, promotion of good governance and control of corruption. It is about empowerment of citizens and building responsiveness of the state and its organs, the political parties and leaderships, administration and other institutions to the citizens. The RTI Act (Section 4) says that ‘every citizen has a right to Information from the Authority and the Authority shall on demand from a citizen be bound to provide information.’ Thus it creates the opportunity for those in power to devolve it through sharing of information. In regard to the RTI information means any material in any form including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in forces [Sec 2(f)]. It is to be noted that information does not include office note sheets or photocopies of note sheets.
An access to Information Act is not only a tool to uncover corruption; it can also prevent it by highlighting poor administration regarding how public funds are spent. Further, research depicts strong causal link between corruption and poverty. For example, in terms of Corruption perceptions Index, those countries who have adopted and enforced RTI law, especially Nordic countries, Finland in particular, has been perceived to be lowest. However, for example, there are exceptions without RTI countries like Singapore is least corrupt which makes a conclusive correlation between CPI and RTI difficult. Indeed RTI and CPI cannot be specifically related because it is only in conjunction with other legal, institutional and overall political context that influence of such instruments can be measured.
However, we can not deny that public corruption is a worldwide phenomenon; particularly in developing countries which have been making transitions from years of foreign occupations. Corruption is defined by the World Bank and Transparency International as ‘the misuse of public office for private gain.’ It also has a moral and legal dimension since it involves undocumented and illegitimate appropriation of public wealth by various actors like public officials, politicians and business elites whose positions create opportunities for the diversion of state funds and public assets from government to themselves and their accomplices. This process of pervasive corruption reduces the efficiency and effectiveness of the government, private investments and finally alienates the citizens from their government.
In Bangladesh after the recent scam in the share market the inquiry committee has identified around 100 persons, many of them labelled as ‘powerful’ people, who seem to have been involved in the stock market manipulation. The Committee blamed some institutions, companies and individuals for their involvement in the manipulation. The concerned public became more confused when it was publicized in the media that the report would be made public deleting the names of those manipulators. Many social activists and eminent personalities are advised to use RTI to get access to the report and thereby establish transparency of the report and to explore in what manner the corruption in the share market took place by exploiting approximately 33 lakh share holders (BO holders: Beneficiary Account).
Deleting the names established through the probe committee’s inquiry is bound to protect the speculators and naturally, the veracity of the findings is being questioned. For the sake of stability and efficient management and functioning of the stock market, transparent handling of the report and quick implementation of its recommendations are needed. Many analysts on corruption claim that the contributing factors to this type of corruption in developing countries is usually because of lack of ‘Commitments and the Will’ of the governments, greed, policies, failing institutions, income disparities and lack of accountability. In addition, as pointed out by Professor Abul Barkat (The Daily Star, April 22), the players in share scam are far more intelligent than our policymakers. It is because the fiscal and financial policymakers are less uncoordinated than the scam stars who did not seem to be as uncoordinated as the policy makers. Nevertheless, the government has started taking some steps to address this scam. For instance, National Board of Revenue sought the information to scrutinise the bank account of 15 people which appeared in the report one way or another. In addition, on recommendations of the inquiry report the whole administration of Securities and Exchange Commission including the chief has been recently replaced. The chief had mentioned to the media that SEC would work to restore investors’ confidence and establish a transparent, vibrant and investor friendly market. In this context, RTI Act, 2009 will give people more opportunity to participate in public affairs and hold duty bearers accountable for their action. It will also promote transparency openness and create opportunities for dialogue and discussions on critical issues between the general people and policy making authorities. As mentioned earlier, the RTI Act has the power to override any existing law (Sec 3).
Traditionally, participation in political and economic processes and making informed choices are restricted to small bureaucratic elites in developing countries. Consultation on important policy matters, even when they directly concern the people is rarely the practice. Usually, the consultative processes are severely undermined and devoid of participation of those people who are going to be most affected by such policies and programmes. However, it should be kept in mind that government information is a national resource. Neither the particular government of the day, nor public officials, creates information for their own benefit. The greater the access of the citizen to information, the greater would be the responsiveness of government to community needs. Alternatively, the greater the restrictions on ‘access’, the greater the feelings of ‘powerlessness’ and alienation. Without information, people cannot adequately exercise their right and responsibilities as citizens or make informed choices. The government information is generated for the purpose related to the legitimate discharge of their duties of office and for the service of public for whose well-being the institutions exists, and who ultimately fund the institutions of government and the salaries of officials. Thus the government and officials are ‘trustees’ of the information of the people For example transparency in budget is associated with good governance. Opening of budget processes to people/civil society can promote improvements in budget accountability and the effectiveness of pro-poor expenditure. A study of budget focused organisations in six countries: Brazil, Croatia, India, Mexico, South Africa and Uganda has reflected that civil society involvement has direct impact on improving the quality of the budget system, pro poor allocations, and the quality of expenditures.
Through the practice of RTI in Bangladesh transparency of government institutions have began which aims at reducing corruption at various sectors. As mentioned earlier in regard to article 9(2) the designated officials are required to provide the applicants information in a timely manner; if applicants are not given information or get rejected and aggrieved by the decision of the appeal units then under section 24, complaints for not receiving information can be filed to the IC. This provision of RTI is one of the major steps towards establishing transparency, accountability and to address corruption in Bangladesh. The first petitioner to IC was Bangladesh Environmental Lawyers Association who sought information from Rajuk regarding the construction of Bangladesh Garments Manufacture Association building and its approval of the building plan. Later BELA received the required information. To date, the IC received 40 complaints, out of which 31 cases were disposed. Most petitioners came from disadvantaged people who failed to get information on old age allowance, special safety net programme, free distribution of medicines by the community hospitals, rules and regulations to obtain Agricultural Cards, information about the location of khas land, allegations against cooperative officer, information in regard to the rules of medical practitioners and so forth. In addition an Adivasi activist sought information on the quota provided for the Adivasi students by various public universities and other educational institutions. IC disposed the cases by providing the information through the designated officials who previously had not attended or rejected the complainers’ prayers.
The other issue is the proposed amendment of the ACC bill to require prior permission from the government before filing cases against judges, magistrates and government employees. The Anti-Corruption Commission pointed out that these amendments would ‘weaken the commission’ and make it ‘anti-people’ and ‘ineffective’. The chair of the commission mentioned in an interview that if the amendments to the ACC laws are finally passed by the parliament the corrupt officials will feel encouraged to indulge in more wrongdoings. On the other hand the argument provided by those (derived from author’s personal interviews with the government officials) who are in favour of the amendment opines since the head of the government is elected his/her consent to punish any government officials in regard to corruption charges would be regarded as upholding the interest of the people. Nevertheless, it is expected that the parliament would not make any amendments backtracking from the election pledges by the political party which formed the government as that would weaken the Anti-Corruption Commission.
The voluntary disclosure of information needs to be encouraged to particularly address corruption. No authority shall conceal any information or limit its easy access (except 8 security and intelligence agencies mentioned in Article 32 of RTI exempted as in other countries including India). However, people can seek information from them if they commit human rights violation and corruption. It should be kept in mind that majority of the people do not have access to internet; thus information should be disclosed in such manner (e.g. through publications, bill boards, citizen charter, etc) where people living in remote areas could learn about it. To achieve this, part of the challenge for civil society campaigns is to promote the right to information and the creation of a culture of the right to information. Such a transparent culture has two sides to it: the willingness of public officials to release information and the readiness of the public to file requests. However, in regard to disclosing information there needs to be coordination between Freedom of Information and Protection of Individual privacy (provided by RTI Article 7).
Finally, the RTI Act and ACC Act can be viewed as key legal instruments to support, protect and facilitate democracy in Bangladesh. It gives the citizen the right to ask for information from the government, non-government and other organisations while it also creates opportunity for those which make a conclusive correlation on difficult issues to achieve. In addition, the financial, administrative and legal independence of both the Commissions (IC and ACC) is of crucial importance to ensure its autonomy. The budget should be built into the national budget and be passed by the parliament. Constitutional recognition of these commissions would empower and strengthen them to serve the people of the nation more effectively. Therefore, we would like to see the setting up of Information Commission in Bangladesh within the specified time, as a strong and independent commission to which all necessary support is provided so that they are able to play an effective role to protect people’s right to information. As pointed out by the prime minister of Bangladesh, Sheikh Hasina, in one state function, the RTI would ensure the development of poor, marginalised and disadvantaged peoples’ development.’
Sadeka Halim is a professor of sociology at the University of Dhaka and information commissioner, Information Commission, Bangladesh