Rti s asia-20111

Final Sharing Workshop on ICT Final Sharing Workshop on ICT Facilitated Access to Information (A2I) Facilitated Access to Information (A2I)

InnovationInnovation

BRAC Centre Inn, Dhaka BRAC Centre Inn, Dhaka 14 June, 201114 June, 2011

Commonwealth Human Rights InitiativeCommonwealth Human Rights Initiative

organised by: organised by: WBI, ANSA-SAR, OWFI, WBI, ANSA-SAR, OWFI, YPSAYPSA

The Right to Information in South AsiaThe Right to Information in South Asia

presented by:presented by: Venkatesh NayakVenkatesh Nayak

Right to know and the French RevolutionRight to know and the French Revolution

(Art. 14 & 15,(Art. 14 & 15, Declaration of the Rights of Man and of the Citizen, 26 August, 1789)Declaration of the Rights of Man and of the Citizen, 26 August, 1789)

“All the citizens have a right to decide, either personally or by All the citizens have a right to decide, either personally or by their representatives, as to the necessity of the public their representatives, as to the necessity of the public contribution; to grant this freely…contribution; to grant this freely… to know to what uses it is to know to what uses it is putput…”…” ““Society has the Society has the right to ask a public official for an accountingright to ask a public official for an accounting of of his administration.” his administration.”

(Art. 14 & 15,(Art. 14 & 15, Declaration of the Rights of Woman and the Female Citizen, 1789)Declaration of the Rights of Woman and the Female Citizen, 1789)

“Female and male citizens have the Female and male citizens have the right to verifyright to verify, either by , either by themselves or through their representatives, the necessity of the themselves or through their representatives, the necessity of the public contribution…public contribution…

The collectivity of women, joined for tax purposes to the The collectivity of women, joined for tax purposes to the aggregate of men, has the aggregate of men, has the right to demand an accounting right to demand an accounting of his of his administration from any public agent.administration from any public agent.”

Olympe de Olympe de gougesgouges

Right to know and the French RevolutionRight to know and the French Revolution

Access to information is a human right


Right to information – inextricably connected Right to information – inextricably connected with the right to freedom of opinion, speech & with the right to freedom of opinion, speech & expressionexpression

Everyone has the Everyone has the right to freedom of right to freedom of opinion and opinion and expression; expression; this right includes this right includes freedom … freedom … to seek, to seek, receive and impart receive and impart informationinformation

Universal Universal Declaration of Declaration of Human Rights, 1948Human Rights, 1948 (Art. 19)

International International Covenant on Civil Covenant on Civil and Political Rights, and Political Rights, 1966 (1976)1966 (1976) (Art. 19)

Right to information & Eco-Soc RightsRight to information & Eco-Soc RightsRight to WaterRight to Water

Accessibility to water includes Accessibility to water includes information accessibility i.e., right information accessibility i.e., right to seek receive and impart information concerning water issuesto seek receive and impart information concerning water issues

ICESCR General Comment #15, 2002 [Art. (9)(c)(3)]ICESCR General Comment #15, 2002 [Art. (9)(c)(3)]

Individuals and groups should be given full and equal Individuals and groups should be given full and equal access to access to information information concerning water, water services and the concerning water, water services and the environment, held by public authorities or third partiesenvironment, held by public authorities or third parties

ICESCR General Comment #15, 2002 [Art.45]ICESCR General Comment #15, 2002 [Art.45]

ICESCR General Comment #12, 1999 [Art. 23]ICESCR General Comment #12, 1999 [Art. 23]

States have an obligation to formulate and implement national States have an obligation to formulate and implement national strategies for the right to food in full compliance with the strategies for the right to food in full compliance with the principles of principles of accountability, transparency, people’s participationaccountability, transparency, people’s participation… …

Right to Adequate FoodRight to Adequate Food

Right to information & Eco-Soc RightsRight to information & Eco-Soc RightsRight to HealthRight to HealthAccessibility to the highest attainable standard of health includes Accessibility to the highest attainable standard of health includes information accessibility i.e., right to seek receive and impart information accessibility i.e., right to seek receive and impart information concerning health issuesinformation concerning health issues subject to confidentiality of subject to confidentiality of information about personal healthinformation about personal healthICESCR General Comment #14, 2002 [Art. (12)(b)(4)]ICESCR General Comment #14, 2002 [Art. (12)(b)(4)]


Right to maternal child and reproductive health includes Right to maternal child and reproductive health includes access to access to information information (on these issues)(on these issues)

State Parties have a duty to ensure that third parties do not limit State Parties have a duty to ensure that third parties do not limit people’s people’s access to health related informationaccess to health related information and services and services


State Parties have an obligation to provide education and State Parties have an obligation to provide education and access access to informationto information concerning the main health problems in the concerning the main health problems in the community including methods of preventing and controlling themcommunity including methods of preventing and controlling them

ICESCR General Comment #14, 2002 [Art. (44)(d)]ICESCR General Comment #14, 2002 [Art. (44)(d)]

Right to information & Eco-Soc RightsRight to information & Eco-Soc RightsRight to Adequate Right to Adequate HousingHousingIn the case of evictions appropriate procedural protection and In the case of evictions appropriate procedural protection and due process of law includes due process of law includes information on the proposed eviction information on the proposed eviction and the alternative purpose for which that land or housing is to be and the alternative purpose for which that land or housing is to be usedused ICESCR General Comment #7, 1997 [Art. 15]ICESCR General Comment #7, 1997 [Art. 15]

Right to EducationRight to Education

State Parties have an obligation to maintain a State Parties have an obligation to maintain a transparent and transparent and effective system which monitors whether or not education is effective system which monitors whether or not education is directed to the educational objectives set outdirected to the educational objectives set out (in the Covenant) (in the Covenant)

ICESCR General Comment #13, 1999 [Art.49, 54 & 59]ICESCR General Comment #13, 1999 [Art.49, 54 & 59]

State Parties have an obligation to maintain a State Parties have an obligation to maintain a transparent and transparent and effective system to monitor educational standards in educational effective system to monitor educational standards in educational institutionsinstitutions. Non-adherence to this duty is violation of rt. to . Non-adherence to this duty is violation of rt. to educationeducation

Right to information in CEDAWRight to information in CEDAW

State Parties must guarantee all State Parties must guarantee all women on a non-discriminatory women on a non-discriminatory basis -basis -

Access to specific educational information to help to ensure the Access to specific educational information to help to ensure the health and well-being of families, includinghealth and well-being of families, including informationinformation and advice and advice on family planning.on family planning. [Art. 10 (h)][Art. 10 (h)]

For rural women in particular, ensure the right to have access to For rural women in particular, ensure the right to have access to adequate health care facilities, includingadequate health care facilities, including informationinformation, counselling , counselling and services in family planning and services in family planning [Art. 14 [Art. 14 (b)](b)]

Eliminate discrimination against women in matters relating to Eliminate discrimination against women in matters relating to marriage and family relations and ensure the right to decide freely marriage and family relations and ensure the right to decide freely and responsibly on the number and spacing of their children and to and responsibly on the number and spacing of their children and to have have access to the informationaccess to the information, education and means to enable , education and means to enable them to exercise these rights them to exercise these rights [Art. 16 (1)[Art. 16 (1)(e)](e)]

RTI & Child Rights CharterRTI & Child Rights Charter

The child shall have the right to freedom of expression; this right The child shall have the right to freedom of expression; this right shall include shall include freedom to seek, receive and impart informationfreedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the or in print, in the form of art, or through any other media of the child's choice.child's choice. [Art. 13 (1)][Art. 13 (1)]

State Parties have a duty to make State Parties have a duty to make educational and vocationaleducational and vocational informationinformation and guidance available and accessible to all children and guidance available and accessible to all children on a non-discriminatory basis on a non-discriminatory basis [Art. 28 (1)[Art. 28 (1)(d)](d)]

Overarching right of access -Overarching right of access -

Children with disabilities -Children with disabilities -

State Parties have a duty to cooperate with the UN and other State Parties have a duty to cooperate with the UN and other competent IGOs and NGOs to protect and assist a refugee child and competent IGOs and NGOs to protect and assist a refugee child and to trace the parents or other members of the family of any refugee to trace the parents or other members of the family of any refugee child in order to child in order to obtain informationobtain information necessary for reunification necessary for reunification with his or her familywith his or her family. . [Art. 22 [Art. 22 (2)](2)]

In the case of a refugee child -In the case of a refugee child -

Right to information in other instruments


Migrant workers and their families shall have the right to Migrant workers and their families shall have the right to freedom of expression; this right shall include the freedom of expression; this right shall include the freedom to seek, receive and impart informationfreedom to seek, receive and impart information and and ideas of all kinds, regardless of frontiers, either orally, in ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any writing or in print, in the form of art or through any media of their choice.media of their choice.

Rights of migrant workers–Rights of migrant workers–

[International Convention on the Protection of the Rights of All Migrant [International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, Art. 13(2)]Workers and Members of their Families, Art. 13(2)]



Duty of the State to eradicate corruptionDuty of the State to eradicate corruption

Each State Party shall take appropriate measures… to promote Each State Party shall take appropriate measures… to promote the active participation of individuals and groups outside the the active participation of individuals and groups outside the public sector, such as civil society, NGOs and CBOs, in the public sector, such as civil society, NGOs and CBOs, in the prevention and the fight against corruption and to raise public prevention and the fight against corruption and to raise public awareness regarding the existence, causes and gravity of the awareness regarding the existence, causes and gravity of the threat posed by corruption.threat posed by corruption.

This participation should be strengthened by such This participation should be strengthened by such measures as:measures as:

Enhancing the Enhancing the transparency of and promoting the contribution transparency of and promoting the contribution of the public to decision-making processesof the public to decision-making processes;;

Ensuring that the Ensuring that the public has effective access to informationpublic has effective access to information……

[United Nations Convention Against Corruption, 2003][United Nations Convention Against Corruption, 2003]



So So

whywhy shouldshould South Asia South Asia

bebe bothered?bothered?

International HR treaties – status in South Asia


CountryCountry ICCPRICCPR ICESCR ICESCR

BangladeshBangladesh 2000(a)2000(a)1998(a)1998(a)BhutanBhutan XX XX

IndiaIndia 1979(a)1979(a) 1979(a)1979(a)

The MaldivesThe Maldives 2006(a)2006(a) 2006(a)2006(a)

PakistanPakistan 2010(a)2010(a) 2008(a)2008(a)

Sri LankaSri Lanka 1980(a)1980(a) 1980(a)1980(a)

(Source: OHCHR, June 2011)

AfghanistanAfghanistan 1983(a) 1983(a) 1983(a)1983(a)

NepalNepal 1991(a)1991(a)1991(a)1991(a)



CountryCountry ICEDAWICEDAW ICRC ICRC

BangladeshBangladesh 1984(a)1984(a)19901990BhutanBhutan XX 19901990

IndiaIndia 19931993 1992(a)1992(a)The MaldivesThe Maldives 1993(a)1993(a) 19911991

PakistanPakistan 1996(a)1996(a) 19901990

Sri LankaSri Lanka 19811981 19911991


AfghanistanAfghanistan 2003 200319941994

NepalNepal 1991199119901990



CountryCountry ICRMW UNCACICRMW UNCAC

BangladeshBangladesh 1998(s)1998(s)20072007BhutanBhutan XX 2005(s)2005(s)

IndiaIndia XX 20112011

The MaldivesThe Maldives XX 2007(a)2007(a)

PakistanPakistan XX 20072007

Sri LankaSri Lanka 1996(a)1996(a) 20062006


AfghanistanAfghanistan XX 20082008

NepalNepal XX20112011

HR Obligations of StatesHR Obligations of States

PromotePromote

Ratifying a HR treaty places on States the duty to-Ratifying a HR treaty places on States the duty to-

ProtectProtect

FulfillFulfill

all human rights including RTIall human rights including RTI

Constitutional protection – Constitutional protection – as a fundamental as a fundamental rightright

Domestic legislation – Domestic legislation – lay down access lay down access proceduresprocedures

RTI Status in S. Asia until the 21st century

RTI Status in S. Asia until the 21st century

Right to seek certified copies under Evidence Laws of Right to seek certified copies under Evidence Laws of 1890s1890s

but right to inspect must be established but right to inspect must be established by law – reasons needed for seeking by law – reasons needed for seeking informationinformation

BangladeshBangladesh

IndiaIndia

PakistanPakistan

Official Secrets and Public Security laws prevented Official Secrets and Public Security laws prevented disclosure of informationdisclosure of information

Governments gave out information on a ‘Governments gave out information on a ‘need to knowneed to know’ ’ basisbasis

Status of RTI in S. Asia in the 21st century

Status of RTI in S. Asia in the 21st century

4 countries have national level laws – 4 countries have national level laws –

Pakistan, India, Nepal & BangladeshPakistan, India, Nepal & Bangladesh

5 countries guarantee RTI as a fundamental right – 5 countries guarantee RTI as a fundamental right –

Nepal, Bhutan, the Maldives, Afghanistan & PakistanNepal, Bhutan, the Maldives, Afghanistan & Pakistan

in 3 countries RTI is an implied fundamental right– in 3 countries RTI is an implied fundamental right–

India, Sri Lanka & BangladeshIndia, Sri Lanka & Bangladesh

RTI Bill is pending in the Parliament of the MaldivesRTI Bill is pending in the Parliament of the Maldives

No live RTI Bill in Sri Lanka, Afghanistan & BhutanNo live RTI Bill in Sri Lanka, Afghanistan & Bhutan

Status of RTI in PakistanStatus of RTI in Pakistan

Supreme Court recognised RTI in 1993 Supreme Court recognised RTI in 1993

Freedom of Information Ordinance (FOIO) in 2002 signed Freedom of Information Ordinance (FOIO) in 2002 signed under donor pressureunder donor pressure

FOIO applies only to federal governmentFOIO applies only to federal government

Sindh and Balochistan also have their own FOI lawsSindh and Balochistan also have their own FOI laws

1818thth Constitutional amendment introduces RTI as a Constitutional amendment introduces RTI as a fundamental right in 2010fundamental right in 2010

Draft RTI Bill pending in Punjab provinceDraft RTI Bill pending in Punjab province

Weak implementation and usage of FOI lawsWeak implementation and usage of FOI laws

Only a handful of NGOs working on RTI Only a handful of NGOs working on RTI

Status of RTI in IndiaStatus of RTI in India

Supreme Court recognised RTI as implied fundamental Supreme Court recognised RTI as implied fundamental right in 1975 right in 1975

First state RTI law in Tamil Nadu due to donor pressureFirst state RTI law in Tamil Nadu due to donor pressure

9 States had RTI laws by 20049 States had RTI laws by 2004

FOI Act 2002 passed by Parliament remained a dead letterFOI Act 2002 passed by Parliament remained a dead letter

Major national level campaign for strong RTI law involving Major national level campaign for strong RTI law involving a range of NGOs and people’s movements since 1990sa range of NGOs and people’s movements since 1990s

RTI Act passed in 2005 to cover whole countryRTI Act passed in 2005 to cover whole country

Very popular law: 500,000–600,000 applications in a yearVery popular law: 500,000–600,000 applications in a year

Citizens and NGOs using RTI to seek accountability and Citizens and NGOs using RTI to seek accountability and unearth maladadministration & corruptionunearth maladadministration & corruption

Status of RTI in NepalStatus of RTI in Nepal

RTI included as fundamental right in the Constitution in RTI included as fundamental right in the Constitution in 19901990

RTI included in the Interim Constitution after abolition of RTI included in the Interim Constitution after abolition of the monarchy in 2007the monarchy in 2007

Supreme Court ordered disclosure of details of Supreme Court ordered disclosure of details of development projects (dams and hydropower projects) in development projects (dams and hydropower projects) in 1990s thanks to civil society litigation1990s thanks to civil society litigation

RTI Act passed in 2007 due to pressure from civil society RTI Act passed in 2007 due to pressure from civil society movement led by lawyers and journalistsmovement led by lawyers and journalists

Rare law as it covers political parties and foreign funded Rare law as it covers political parties and foreign funded NGOsNGOs

Poor implementation due to preoccupation with Poor implementation due to preoccupation with constitution-drafting process & political apathyconstitution-drafting process & political apathy

Status of RTI in BangladeshStatus of RTI in Bangladesh

High Court of Bangladesh recognised voter’s right to know High Court of Bangladesh recognised voter’s right to know the background of electoral candidatesthe background of electoral candidates

Law Commission circulates a working paper on FOI law in Law Commission circulates a working paper on FOI law in 20022002

Civil society campaign for strong RTI law takes shape in Civil society campaign for strong RTI law takes shape in 2005-06 led by Manusher Jonno network with media 2005-06 led by Manusher Jonno network with media support – draft Bill presented to Caretaker Govt.support – draft Bill presented to Caretaker Govt.

RTI Ordinance passed by Caretaker Government in 2008 – RTI Ordinance passed by Caretaker Government in 2008 – drafted by a committee comprising a CSO representativedrafted by a committee comprising a CSO representative

RTI Act passed by Awami League-led Jatiya Sangsad in RTI Act passed by Awami League-led Jatiya Sangsad in 20092009

Civil society and Bangladesh Information Commission are Civil society and Bangladesh Information Commission are hard at work to spread awareness about the lawhard at work to spread awareness about the law

Status of RTI in the MaldivesStatus of RTI in the Maldives

RTI Bill tabled in Parliament in 2007- failed to pass by one RTI Bill tabled in Parliament in 2007- failed to pass by one votevote

Government issued executive orders to implement Government issued executive orders to implement provisions of the Bill in its departmentsprovisions of the Bill in its departments

New Constitution drafted under President Md. Nasheed’s New Constitution drafted under President Md. Nasheed’s Government includes RTI as a fundamental right in 2008Government includes RTI as a fundamental right in 2008

Civil society organisations begin campaign for RTI BillCivil society organisations begin campaign for RTI Bill

Government tables RTI Bill in Parliament in 2009 and Government tables RTI Bill in Parliament in 2009 and invites public consultationinvites public consultation

RTI Bill is being vetted by parliamentary committee amidst RTI Bill is being vetted by parliamentary committee amidst huge legislative reform agendahuge legislative reform agenda

Status of RTI in Sri LankaStatus of RTI in Sri Lanka

Supreme Court recognised RTI as being implied in:Supreme Court recognised RTI as being implied in:

Fundamental right to speech and expressionFundamental right to speech and expression

Supreme Court ordered disclosure of information in Supreme Court ordered disclosure of information in environmental litigationenvironmental litigation

Major laws restrict publication or disclosure of informationMajor laws restrict publication or disclosure of information

Law Commission drafts an Access to Official Information Law Commission drafts an Access to Official Information Bill in 1996 – rejected by CSOs for its weaknessesBill in 1996 – rejected by CSOs for its weaknesses

RTI - on the backburner due to other issues of governanceRTI - on the backburner due to other issues of governance

Fundamental right to thought and opinionFundamental right to thought and opinion

Lawyers & journalists drafted a stronger Bill but could not Lawyers & journalists drafted a stronger Bill but could not be tabled in parliament despite Cabinet approval in 2003be tabled in parliament despite Cabinet approval in 2003

Status of RTI in Afghanistan and Bhutan

Status of RTI in Afghanistan and Bhutan

Both countries have guaranteed RTI as a fundamental Both countries have guaranteed RTI as a fundamental right subject to restrictions imposed by lawright subject to restrictions imposed by law

No civil society push for RTI in either countryNo civil society push for RTI in either country

Government of Bhutan drafted an RTI Bill in 2007 without Government of Bhutan drafted an RTI Bill in 2007 without any public consultation – Bill remains secret till dateany public consultation – Bill remains secret till date

Nascent interest in some Afghan CSOs to draft RTI BillNascent interest in some Afghan CSOs to draft RTI Bill

No RTI Bill in Afghanistan due to preoccupation with No RTI Bill in Afghanistan due to preoccupation with combatting anti-State militant groupscombatting anti-State militant groups

SAARC’s commitment to RTISAARC’s commitment to RTI

SAARC Social Charter, 2004 – SAARC Social Charter, 2004 – (Art. II, Principles, Goals & Objectives)(Art. II, Principles, Goals & Objectives)

New Delhi Declaration of SAARC Ministers for Social New Delhi Declaration of SAARC Ministers for Social Development, 2008 – Development, 2008 –

Underline the importance of Underline the importance of transparent and accountable transparent and accountable conduct of administration in public and private, national and conduct of administration in public and private, national and international institutionsinternational institutions;”;”

““Promote and facilitate through exchange of best practices, Promote and facilitate through exchange of best practices, early adoption in accordance with national priorities, of early adoption in accordance with national priorities, of appropriate legislation, appropriate legislation, conferring right to information for all conferring right to information for all citizens from the governments and public authoritiescitizens from the governments and public authorities, to , to eliminate arbitrariness and corrupt practices & improve eliminate arbitrariness and corrupt practices & improve governance at the regional, national and local levels”governance at the regional, national and local levels”

““State Parties:…State Parties:…

““We … agree to…We … agree to…

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Rti s asia-20111

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