BREAKING THE CULTURE OF 'SECRECY': Judiciary stands for right to information

Despite being a people's republic, democracy in Bangladesh is yet to flourish and be a value-laden model for others. Since our independence, political parties have been enjoying an unfettered cream of the culture of not disclosing everything to the countrymen. On the eve of each national election, most of the political parties promise many good things which remain very often less-realised as the time of next election approaches. Nonetheless, the political parties are considered to be an integral part of our national polity.

Having signified the existence of political parties for democracy, the narrative would remain unfinished if we overlook their limitations and mal-practices. Very recently, the High Court Division (HCD) of the Supreme Court of Bangladesh has dealt with one such mal-practice, i.e. the practice of 'secrecy' concerning political parties' financial information. The issue came up in a Public Interest Litigation (PIL) in the case of Badiul Alam Majumdar and others v Information Commission, Bangladesh and another 8 SCOB (2016) HCD 110. The brief account of the litigation is that one Mr. Badiul Alam Majumdar on behalf of SHUJAN (Shushashoner Jonno Nagorik), a civil society movement which works to establish and promote democracy and good governance in Bangladesh, sought to the Election Commission for some information relating to the audited annual statements of accounts filed by the registered political parties to the Election Commission. The Commission refused to entertain the request of SHUJAN on the ground that such information is exclusively of the political parties themselves. Subsequently, however, on the basis of an application filed by SHUJAN, the Information Commission decided that information concerning financial issues of the political parties is not 'public information' and would be disclosed only after taking their consent under section 9(8) of the Right to Information Act 2009. Against this decision of the Information Commission, the PIL was filed in the HCD which identified two important questions judicially to be disposed of.

First question concerned as to whether the Information Commission can issue any direction favouring the culture of 'secrecy' and curtailing citizen's right to information. And second question related to the issue of distinguishing which information falls under 'public information' or 'private information' as far as the political parties and their activities are concerned.

While dealing with the first question, the HCD observed that the direction of the Information Commission seeking political parties' consent/opinion in respect of providing information was erroneous and unwarranted under law. The Court grounded its observation on the belief that “[…] political parties, which operate in the public sphere[,] have constitutional and statutory obligations for accountability and transparency” (at p. 131). As the Court also opined, a negative opinion of the political parties in providing information would undoubtedly violate citizen's right to information guaranteed under the Right to Information Act 2009 and damage the spirit of ensuring and guaranteeing transparency and accountability in national life.

As to the second question, the Court has observed that as soon as the registered political parties submit their audited statements of accounts to the Election Commission, such statements fall under the category of 'information' as defined in the Right to Information Act. According to the Court, such statements are 'public documents' under section 74(2) of the Evidence Act 1872 and, therefore, the Election Commission is not allowed to keep such information in disguise of 'secrecy' or 'confidentiality'. In other words, peoples have right to know such public information.

The Court has very lucidly commented: “In modern democratic countries, citizens have 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.” (at p. 130).

Despite positive observations made by the Court, it however could not recognise political parties as 'constitutionally recognised public organisations' with reference to article 152 of the Constitution which defines a “political party” as “a group or combination of persons who operate within or outside Parliament under a distinctive name and who hold themselves out for the purpose of propagating a political opinion or engaging in any other political activity.” Article 152 clarifies that political parties are one of the necessary institutions in the government structure for a democratic State. This constitutional provision also clarifies that 'propagating political opinion' or 'political parties' engagement in political activity' means that there should always be people's participation and involvement. And when there is a question of people's involvement or engagement, there cannot exist any culture of practising secrecy and confidentiality. Because keeping information of political parties secret to the people is equivalent to keeping the very same people unaware about politics. Political awareness is built upon a culture of openness and inclusiveness. The best way to include people in a healthy governance system (or say establish 'good governance coupled with the rule of law') is to share information with the people without any interruption. This is what is missing in the growth of our political history.

The writer is Lecturer in Law, University of Asia Pacific.