Right to Informationand Its Practices in Nepal LL.B THIRD YEAR PROJECT WORK- 2068 (Purposal) Submitted By: Mira Lamichhane LL.B Third Year Submitted To: Tribhuvan University Faculty of Law Nepal Law Campus Exhibition Road, Kathmandu
1. IntroductionInformation is power and the spirit of democracy. The right to information isconsidered as a fundamental human right. Right to Information is also known asthe freedom of information or the right to know. In a modern democracy, goodgovernance is essential. Among the chief characteristics of good governance aretransparency and accountability, elements that can be best ensured only wheninformation is available abundantly and as speedily as possible. (Right toInformation: P Kharel 2001, The Rising Nepal)Right to information (RTI) empowers public for questioning governmentagencies about the process, status and result of different activities thereof. Thequest of procedural and financial transparency by applying right to informationis quite essential, that helps in paving the way for public to participate indecision-making process and governance system.For the first time in 1946, United Nations General Assembly Resolutionrecognized it and highlighted the importance of the right to information ascrucial rights for promoting overall human rights. It states, “Freedom ofinformation is a fundamental human right the touchstone of all the freedoms towhich the United Nations is consecrated.” United Nation Declaration of HumanRights (UDHR) recognized right to information under Article 19. Under theprovision, right to seek, receive and impart information without interference andregardless of frontiers is protected. Similarly Article 19 of International Covenanton Civil and Political Rights (ICCPR) has guaranteed right to information inArticle 19. It states, "Everyone shall have the right to freedom of expression; thisright shall include freedom to seek, receive and impart information and ideas ofall kinds, regardless of frontiers, either orally, in writing or in print, in the form ofart, or through any other media of his choice" Both documents protected right toinformation as integral part of freedom of expression. The trend on regionalmechanism is similar. Article 10 of the European Convention on Human Rights,Article 13 of the American Convention on Human Rights and Article 9 of AfricanCharter on Human and Peoples Rights also recognize right to information as apart of freedom of expression.Sweden was the first country to recognize the right to information in 1766,followed by Colombia in 1888, whose Code of Political and MunicipalOrganization allowed individuals to request documents held by governmentagencies or in government archives.
It took about a century to count third country having legal provision on RTI. In1953 Finland adopted right to information law, followed by the United States in1966, and Norway passed a law on right to information in 1970. Similarly,Canada, Australia and New Zealand passed on 1982 and Italy in 1990. Till thedate 89 countries have legally endorsed RTI, after Nigeria passed, ‘Access toInformation Act’ in March last year.(http://www.freedominfo.org/2011/03/nigerian‐senate‐passes‐modified‐foi‐legislation)Nepal time and often was under the rule of family autocracy be it the Ranaregime that came to an end in 1950 or the party less Panchayat system for next 30years. Freedom was curtailed it was subject of ruler mercy. In that context, therewas no room for the RTI and seeking the information held in public bodies wasbeyond the imagination. There for Nepali people had to wait for 1990’smovement to get the constitutional guarantee of the right. The People’sMovement of 1990 has stood as one of the major historical turning points in thepolitical history of Nepal. It was important from the point of view of a paradigmshift in the political system that recognized people’s fundamental rights andaccepted people’s participation in governanceThe Constitution has very explicitly recognized right to information asfundamental right under Article 16. By this constitutional guarantee, Nepalbecame the first country in south Asia having the Right to Information Asiafundamental right. Right to Information Bill was first tabled in the parliament in 1993 but wasrejected by the parliamentary committee as the stakeholders including mediaopposed that draft. The Bill was finally tabled in the parliament in 2001. At thesame time, the judiciary played a very significant role in the interpretation of thefundamental right to information and the development of RTI jurisprudence inNepal.After the restoration of democracy followed by the popular people’s movementthe new constitution, Interim Constitution of Nepal 2007 was promulgated. As in1990 constitution, the Interim constitution also ensured Right to Informationunder the Article 27 as a fundamental right. The article states: Every citizen shallhave the right to demand and receive information on any matter of publicimportance: Provided that nothing in this Article shall compel any person toprovide information on any matter about which secrecy is to be maintained bylaw.
Following the immense pressure of and recommendation made by the peoplesfrom the various walks of life a commission was made to look after the matter.The government in September 2007 formed a taskforce to draft a Bill on right toinformation in. The seven-member taskforce headed by former secretary of theJudicial Council Kashi Raj Dahal made a draft which was endorsed by theparliament with the amendments in July 18, 2007 and the Act came in force fromAugust 19, 2007. (http://www.ccrinepal.org/legal-provision/rti-act-2007)As envisioned in the Act, National Information commission was established onJune 4, 2008 and Right to information Regulation was adopted in consultationwith National Information Commission on February 9, 2008.(www.nic.gov.com.np) 2. Statement of the ProblemNepal is among 50 countries of the world to guarantee RTI constitutionally aswell as has a separate and specific legislation on right to information. In addition,Nepal has international obligation for protection of the right to information sinceit has ratified ICCPR without any reservation.Four years have passed since the endorsement of RTI Act in Nepal. In thiscontext, it is very essential to know the status of its implementation. More overthe new constitution is being drafted; the key features of RTI Act and itsdrawback should be analyzed to ensure RTI under fundamental right. In thissituation, the study focuses on analyzing the current implementation status of theRTI Act. 3. Objective of the studyThe general objective of this research is to examine the implementation status ofthe RTI Act in Nepal.The specific objectives of this research are: a. To find out the key features and drawback of RTI Act 2007 b. To find out the implementation status of the Act
4. Literature ReviewThe Interim constitution 2007 ensured Right to Information under the Article 27as a fundamental right. The article states, "Every citizen shall have the right todemand and receive information on any matter of public importance: Providedthat nothing in this Article shall compel any person to provide information onany matter about which secrecy is to be maintained by law."Four years have passed since the endorsement of RTI Act in Nepal, however, afew literature have been published analyzing the implementation status of theact.In international practice RTI Acts guarantee right to every individual however,the Act access to information only to a Nepali citizen and not to an individual.This provision limits the access of other people who are not citizens but have areal concern about the information being sought. This limitation is against thestandards set by ICCPR. In addition, part of the scope of the application of thelaw remains unclear and this may need to be better worded for clarity. Thedefinition section of the Act does not specifically make clear whether the RTI Actapplies to the legislative and judicial branches of government, as well as to theexecutive. ("An analysis of Right to Information Act 2007”, Freedom Forum). Thisliterature identifies the need of implementation of RTI with the conscience ofinternational conventions and practice.Similarly The Annual Report of National Information Commission 2065- 2066states that once the RTI law is enacted, State has the obligation to make RTI lawscompatible with legal arrangement. This equally applies in the context of Nepaltoo. However, still many legal provisions are not friendly with RTI Act.Moreover, such provisions are promoting the secrecy of the official document.Along with that, the culture of secrecy among the civil servants is being a barrierto implement the RTI Act in Nepal.Implementation of right to information is obligation of government. Governmenthas to mobilize different state organs to make necessary arrangement. In Nepal,National Information Commission is there as an oversight body Protection,promotion and implementation obligation is assigned to NIC. Ministry ofInformation and Communications is considered as line ministry to contact togovernment by the NIC. Neither there is any specific legal provision on creatinga implementing agency taking responsibility of implementing RTI nor hasgovernment taken any initiatives to create nodal agency within the government.
(Long Way to Go -Towards effective Implementation of the Right to InformationLaws in Nepal, CCRI- 2010.)These literature gave the outline of the implementation status of RTI Act. Andidentified draw back and limitation off the act. 5. MethodologyThe secondary data collection method will be used to generate necessaryinformation for the study. The case study and analytical method will be used toanalyze and interpret the data. The cases will be selected randomly on the basisof appeals have been made in National Information Commission. Not more thanthree cases will undergo the analysis process. 6. Organization of the studyThe whole study will be divided into five major chapters. The first chapter,Introduction, includes, Statement of the Problem, Objective of the Study,Literature Review, Methodology, Limitations of the Study and Organization ofthe Study. Second chapter will be focused on the history and importance of RTI.Similarly, the third chapter consists off the key features of the RTI Act 2007. Infourth chapter, implementation status of RTI Act will be analyzed on the basis ofthe selected cases. Finally, the last chapter consists of the conclusion part and RTIin new constitution. 7. Limitation of the studyThe study is limited only in the single fundamental right that is, Right toInformation and related act and laws. The required data will be collected fromthe secondary sources. The analysis and interpretation will be based on the caseanalysis methods. The selected cases will be the appeals that have been made inNational Information Commission.
Bibliography1. An analysis of "Right to Information Act 2007”, Freedom Forum2. Annual Report of National Information Commission 2065-20663. Information Laws in Nepal, CCRI- 20104. Interim Constitution of Nepal 20075. Long Way to Go -Towards effective Implementation of the Right to Information6. Memorandum on the Right to Information Act of the State of Nepal 20087. Right to Information Act, 20078. Right to Information, Legal Prospective: Tanka Aryal, Right to Information Conference March 28 and 29 Kathmandu9. Right to Information: P Kharel 2001, The Rising Nepal10. Tara Nath Dahal: Towards More Open and Transparent Governance in South Asia New Delhi, 27-29 April 201011. Tanka Aryal: Citizen Campaign for Right to Information12. www.ccrinepal.org13. www.freedominfo.org14. www.nic.gov.com.np)