How RTI regimes are faring in South Asia

The Covid-19 pandemic will be remembered for the colossal chaos it caused to governments as they grappled—and continue to do—with its catastrophic onslaught affecting lives and livelihoods across the globe. And as governments bristled at public outcry against their inept handling and clamped down on critics, the gap widened between those who govern and those who are governed.

The crisis has shown that public distrust of governments is less pronounced in countries where a Right to Information (RTI) Act facilitates easy sharing of information. The situation is reversed where this is not the case.

With this in mind, we decided to take a fresh look at the situation of RTI regimes in South Asia in more recent times. We wanted to observe the trend in public use of the law, the response of the authorities and the role of the Information Commissions in resolving conflicts between the two sides.

Pakistan was the first country in South Asia to adopt an RTI law in the form of an ordinance by a military ruler in 2002. Since it lacked the basic elements and safeguards of an effective transparency regime, it was replaced by a more balanced Right of Access to Information Act in 2017. It appears to have generated renewed hope. 

In the example from Pakistan (Appeal No 060-06/19), an RTI application, submitted in April 2019, sought from the Registrar of the Supreme Court some basic information relating to staff members of the apex body, such as the number of sanctioned posts, number of vacancies, number of women and disabled persons among them, the pay scale and service rules. 

As the Registrar failed to respond, the applicant appealed to the Information Commission of Pakistan. The latter's prodding led the Registrar to act; but instead of providing the requested information, he simply forwarded a letter he had sent earlier to the Ministry of Law and Justice on a matter relating to the National Assembly, with a copy of a Supreme Court judgment regarding separation of the judiciary from the executive. He thereby inferred that the Supreme Court did not fall under the RTI Act and was, therefore, not required to provide the requested information.

The Commission, however, stated quite unequivocally that "the judiciary's independence and separation from [the] executive is certainly ensured by the Constitution but it doesn't and shouldn't be construed to mean that [the] judiciary is not accountable and responsive to citizens of the country, who have created all state institutions through legislation enacted by their elected representatives and who are to exercise authority as a sacred trust, as provided in the Preamble to the Constitution of Pakistan." The appeal was allowed, and the Registrar ordered to share the requested information.

In the Sri Lankan example (RTIC/22/2017), a citizen submitted a request to the Presidential Secretariat in February 2017 seeking a copy of the report of a commission of inquiry into the death of the founder and former leader of the Sri Lanka Muslim Congress, M.H.M. Ashraff, who had been killed in a helicopter accident in 2000. When the secretariat rejected the request on grounds that the relevant file had been sent to the National Archives from where it was lost, the applicant appealed to the Information Commission.

After considering submissions from both sides, the Commission concluded that "the RTI Act prevails over and above the clauses relating to confidentiality in the National Archives Law and related Regulations. It is a pertinent factor that the absence of the Report of the Commission of Inquiry in regard to this matter is of considerable public interest."

The Commission further underlined that the "Department of the National Archives is the custodian of 'all records'of Commissions of Inquiry under the Act… Hence the Department may properly call upon the depositing body or individual… to ensure that the Report of the Commission or Committee is sent to the Department in accordance with the law."

Meanwhile, the example from India related to an RTI application submitted in early 2019 to the Union Ministry of Social Justice and Empowerment, seeking disclosure of the cabinet note and all relevant correspondence and annexure about an amendment to the Constitution by the Indian parliament relating to ten percent reservation for the economically weaker section (EWS) of the society. The applicant had relied on an earlier order of the Central Information Commission (CIC) directing the government to make public all cabinet notes relating to proposals for new bills that are to be tabled in parliament and also to display them on the website of the department within seven days.

As the ministry declined to disclose the information requested, citing a specific exemption under the Indian RTI Act, the applicant appealed to the CIC. Commissioner Saroj Punhani accepted the appeal and directed the Public Information Officer to provide all the documents on a working Google Drive link to the applicant. She chided him for not providing justification for his denial and "non-application of mind in dealing with matters under the RTI Act." She called his action "grossly inappropriate" and "severely admonished [him] for the inappropriate denial of the information to the Appellant". She also "warned [him] to ensure that due diligence is exercised while dealing with the RTI applications in future."

Now for the Bangladesh example (complaint number 17/2019). In September 2018, an applicant submitted an RTI request to the Designated Officer (DO) of the Ministry of Power, Energy and Mineral Resources, seeking copies of some documents relating to the construction of a fuel depot by Bangladesh Petroleum Corporation (BPC) on 192 acres of forest land in the Maheshkhali Hill Area of Cox's Bazar district. The documents included applications by BPC for permission to build the depot and to cut down trees on promise of replanting five times the number; project approval letter for "Installation of Single-Point Mooring with Double Pipeline"; Environmental Impact Assessment (EIA) of the project; approval, if any, by the cabinet for tree-chopping; workplan for replanting new trees and the varieties of new trees to be planted.

The DO provided the applicant all the items requested, except the EIA. He argued that the latter document, provided by the Environment Directorate, was an important government document which could be abused if it fell into wrong hands. The applicant appealed to the Secretary of the ministry, who upheld the DO's decision. The appellant then submitted a complaint to the Information Commission.

At complaint hearings, additional arguments were made against disclosure of the environmental assessment. It was claimed that the government had attached great importance to the project and appointed a foreign consultant, namely ILF Consulting Engineers, Germany, to prepare the environmental assessment report. The latter contained important technical and scientific knowledge that the consultants had acquired through serious research. This knowledge could be considered to be their intellectual property, which falls under an exemption clause of the Bangladesh RTI Act 2009. The Information Commission concurred with the submissions and decided in favour of non-disclosure.

The examples above will hopefully spur readers to reflect on the prospects and promises of the RTI Act. We conclude by underlining its intrinsic value to facilitate citizen-government interaction on matters of governance, thereby contributing to strengthening participatory democracy. 

Shamsul Bari and Ruhi Naz are Chairman and RTI Coordinator respectively of Research Initiatives, Bangladesh (RIB). Email: rib@citech-bd.com