Freedom
of Information and the Media
Justice
Mohammad Gholam Rabbani
A
free press is a check to government power. There is no doubt about it.
But without freedom of information the press depends on leaks, which
may either be official or unofficial. Official leaks are press hand-outs
which are dressed up to suit the government's interest while unofficial
leaks are risky in view of the laws of libel, contempt and official
secrets.
Canada
was legislated 'Access to Information Act' in 1982 while USA has had
such legislation since 1966. Its Freedom of Information Act applies
to all parts of the federal government unless an exemption applies and
the exempted categories include information concerning defence, law
enforcement and foreign policy. Many other countries have freedom of
information legislation wherein the usefulness of the information is
determined by the person who seeks it rather than by ministers or civil
servants, that is usefulness is not an objective quality, but depends
on the purposes of the person who seeks the information.
Sub-article
2 of article 39 in Part III (Fundamental Rights) of our Constitution
runs as follows: "(2) 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 (a) the
right of every citizen to freedom of speech and expression; and (b)
freedom of the press, are guaranteed".
In
those countries the exemptions can be challenged in court and the onus
of proof is on he agency withholding the information to prove that the
disclosure can bring that harm the exemption in the Act was intended
to prevent. Our Supreme Court is yet to give decision on the issue of
freedom of information and the press guaranteed in our constitution.
Justice
Mohammad Gholam Rabbani, Retired Judge, Appellate Division, Supreme
Court.
