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Rti s asia-20111

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Rti s asia-20111

  1. 1. Final Sharing Workshop on ICT Facilitated Access to Information (A2I) Innovation BRAC Centre Inn, Dhaka 14 June, 2011 Commonwealth Human Rights Initiative organised by: WBI, ANSA-SAR, OWFI, YPSA The Right to Information in South Asia presented by: Venkatesh Nayak
  2. 2. Right to know and the French Revolution (Art. 14 & 15, 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 their representatives, as to the necessity of the public contribution; to grant this freely… to know to what uses it is put …” “ Society has the right to ask a public official for an accounting of his administration.”
  3. 3. (Art. 14 & 15, Declaration of the Rights of Woman and the Female Citizen, 1789) “ Female and male citizens have the right to verify , either by themselves or through their representatives, the necessity of the public contribution… The collectivity of women, joined for tax purposes to the aggregate of men, has the right to demand an accounting of his administration from any public agent. ” Olympe de gouges Right to know and the French Revolution
  4. 4. Access to information is a human right Right to information – inextricably connected with the right to freedom of opinion, speech & expression Everyone has the right to freedom of opinion and expression; this right includes freedom … to seek, receive and impart information Universal Declaration of Human Rights, 1948 (Art. 19) International Covenant on Civil and Political Rights, 1966 (1976) (Art. 19)
  5. 5. Right to information & Eco-Soc Rights Right to Water Accessibility to water includes information accessibility i.e., right to seek receive and impart information concerning water issues ICESCR General Comment #15, 2002 [Art. (9)(c)(3)] Individuals and groups should be given full and equal access to information concerning water, water services and the environment, held by public authorities or third parties ICESCR General Comment #15, 2002 [Art.45] ICESCR General Comment #12, 1999 [Art. 23] States have an obligation to formulate and implement national strategies for the right to food in full compliance with the principles of accountability, transparency, people’s participation … Right to Adequate Food
  6. 6. Right to information & Eco-Soc Rights Right to Health Accessibility to the highest attainable standard of health includes information accessibility i.e., right to seek receive and impart information concerning health issues subject to confidentiality of information about personal health ICESCR General Comment #14, 2002 [Art. (12)(b)(4)] ICESCR General Comment #14, 2002 [Art. 14] Right to maternal child and reproductive health includes access to information (on these issues) State Parties have a duty to ensure that third parties do not limit people’s access to health related information and services ICESCR General Comment #14, 2002 [Art. 35] State Parties have an obligation to provide education and access to information concerning the main health problems in the community including methods of preventing and controlling them ICESCR General Comment #14, 2002 [Art. (44)(d)]
  7. 7. Right to information & Eco-Soc Rights Right to Adequate Housing In the case of evictions appropriate procedural protection and due process of law includes information on the proposed eviction and the alternative purpose for which that land or housing is to be used ICESCR General Comment #7, 1997 [Art. 15] Right to Education State Parties have an obligation to maintain a transparent and effective system which monitors whether or not education is directed to the educational objectives set out (in the Covenant) ICESCR General Comment #13, 1999 [Art.49, 54 & 59] State Parties have an obligation to maintain a transparent and effective system to monitor educational standards in educational institutions . Non-adherence to this duty is violation of rt. to education
  8. 8. Right to information in CEDAW State Parties must guarantee all women on a non-discriminatory basis - <ul><li>Access to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning. [Art. 10 (h)] </li></ul><ul><li>For rural women in particular, ensure the right to have access to adequate health care facilities, including information , counselling and services in family planning [Art. 14 (b)] </li></ul><ul><li>Eliminate discrimination against women in matters relating to marriage and family relations and ensure the right to decide freely and responsibly on the number and spacing of their children and to have access to the information , education and means to enable them to exercise these rights [Art. 16 (1)(e)] </li></ul>
  9. 9. RTI & Child Rights Charter <ul><li>The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information 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 child's choice. [Art. 13 (1)] </li></ul><ul><li>State Parties have a duty to make educational and vocational information and guidance available and accessible to all children on a non-discriminatory basis [Art. 28 (1)(d)] </li></ul>Overarching right of access - Children with disabilities - <ul><li>State Parties have a duty to cooperate with the UN and other 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 child in order to obtain information necessary for reunification with his or her family . [Art. 22 (2)] </li></ul>In the case of a refugee child -
  10. 10. Right to information in other instruments <ul><li>Migrant workers and their families shall have the right to freedom of expression; this right shall include the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any media of their choice. </li></ul>Rights of migrant workers– [International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, Art. 13(2)]
  11. 11. Right to information in other instruments Duty of the State to eradicate corruption <ul><li>Each State Party shall take appropriate measures… to promote the active participation of individuals and groups outside the public sector, such as civil society, NGOs and CBOs, in the prevention and the fight against corruption and to raise public awareness regarding the existence, causes and gravity of the threat posed by corruption. </li></ul>This participation should be strengthened by such measures as: <ul><li>Enhancing the transparency of and promoting the contribution of the public to decision-making processes ; </li></ul><ul><li>Ensuring that the public has effective access to information … </li></ul>[United Nations Convention Against Corruption, 2003]
  12. 12. Access to information is a human right So why should South Asia be bothered?
  13. 13. International HR treaties – status in South Asia Country ICCPR ICESCR Bangladesh 2000(a) 1998(a) Bhutan X X India 1979(a) 1979(a) The Maldives 2006(a) 2006(a) Pakistan 2010(a) 2008(a) Sri Lanka 1980(a) 1980(a) (Source: OHCHR, June 2011) Afghanistan 1983(a) 1983(a) Nepal 1991(a) 1991(a)
  14. 14. International HR treaties – status in South Asia Country ICEDAW ICRC Bangladesh 1984(a) 1990 Bhutan X 1990 India 1993 1992(a) The Maldives 1993(a) 1991 Pakistan 1996(a) 1990 Sri Lanka 1981 1991 (Source: OHCHR, June 2011) Afghanistan 2003 1994 Nepal 1991 1990
  15. 15. International HR treaties – status in South Asia Country ICRMW UNCAC Bangladesh 1998(s) 2007 Bhutan X 2005(s) India X 2011 The Maldives X 2007(a) Pakistan X 2007 Sri Lanka 1996(a) 2006 (Source: OHCHR, June 2011) Afghanistan X 2008 Nepal X 2011
  16. 16. HR Obligations of States <ul><li>Promote </li></ul>Ratifying a HR treaty places on States the duty to- <ul><li>Protect </li></ul><ul><li>Fulfill </li></ul>all human rights including RTI Constitutional protection – as a fundamental right Domestic legislation – lay down access procedures
  17. 17. RTI Status in S. Asia until the 21 st century Right to seek certified copies under Evidence Laws of 1890s but right to inspect must be established by law – reasons needed for seeking information <ul><li>Bangladesh </li></ul><ul><li>India </li></ul><ul><li>Pakistan </li></ul>Official Secrets and Public Security laws prevented disclosure of information Governments gave out information on a ‘ need to know ’ basis
  18. 18. Status of RTI in S. Asia in the 21 st century <ul><li>4 countries have national level laws – </li></ul>Pakistan, India, Nepal & Bangladesh <ul><li>5 countries guarantee RTI as a fundamental right – </li></ul>Nepal, Bhutan, the Maldives, Afghanistan & Pakistan <ul><li>in 3 countries RTI is an implied fundamental right– </li></ul>India, Sri Lanka & Bangladesh <ul><li>RTI Bill is pending in the Parliament of the Maldives </li></ul><ul><li>No live RTI Bill in Sri Lanka, Afghanistan & Bhutan </li></ul>
  19. 19. Status of RTI in Pakistan <ul><li>Supreme Court recognised RTI in 1993 </li></ul><ul><li>Freedom of Information Ordinance (FOIO) in 2002 signed under donor pressure </li></ul><ul><li>FOIO applies only to federal government </li></ul><ul><li>Sindh and Balochistan also have their own FOI laws </li></ul><ul><li>18 th Constitutional amendment introduces RTI as a fundamental right in 2010 </li></ul><ul><li>Draft RTI Bill pending in Punjab province </li></ul><ul><li>Weak implementation and usage of FOI laws </li></ul><ul><li>Only a handful of NGOs working on RTI </li></ul>
  20. 20. Status of RTI in India <ul><li>Supreme Court recognised RTI as implied fundamental right in 1975 </li></ul><ul><li>First state RTI law in Tamil Nadu due to donor pressure </li></ul><ul><li>9 States had RTI laws by 2004 </li></ul><ul><li>FOI Act 2002 passed by Parliament remained a dead letter </li></ul><ul><li>Major national level campaign for strong RTI law involving a range of NGOs and people’s movements since 1990s </li></ul><ul><li>RTI Act passed in 2005 to cover whole country </li></ul><ul><li>Very popular law: 500,000–600,000 applications in a year </li></ul><ul><li>Citizens and NGOs using RTI to seek accountability and unearth maladadministration & corruption </li></ul>
  21. 21. Status of RTI in Nepal <ul><li>RTI included as fundamental right in the Constitution in 1990 </li></ul><ul><li>RTI included in the Interim Constitution after abolition of the monarchy in 2007 </li></ul><ul><li>Supreme Court ordered disclosure of details of development projects (dams and hydropower projects) in 1990s thanks to civil society litigation </li></ul><ul><li>RTI Act passed in 2007 due to pressure from civil society movement led by lawyers and journalists </li></ul><ul><li>Rare law as it covers political parties and foreign funded NGOs </li></ul><ul><li>Poor implementation due to preoccupation with constitution-drafting process & political apathy </li></ul>
  22. 22. Status of RTI in Bangladesh <ul><li>High Court of Bangladesh recognised voter’s right to know the background of electoral candidates </li></ul><ul><li>Law Commission circulates a working paper on FOI law in 2002 </li></ul><ul><li>Civil society campaign for strong RTI law takes shape in 2005-06 led by Manusher Jonno network with media support – draft Bill presented to Caretaker Govt. </li></ul><ul><li>RTI Ordinance passed by Caretaker Government in 2008 – drafted by a committee comprising a CSO representative </li></ul><ul><li>RTI Act passed by Awami League-led Jatiya Sangsad in 2009 </li></ul><ul><li>Civil society and Bangladesh Information Commission are hard at work to spread awareness about the law </li></ul>
  23. 23. Status of RTI in the Maldives <ul><li>RTI Bill tabled in Parliament in 2007- failed to pass by one vote </li></ul><ul><li>Government issued executive orders to implement provisions of the Bill in its departments </li></ul><ul><li>New Constitution drafted under President Md. Nasheed’s Government includes RTI as a fundamental right in 2008 </li></ul><ul><li>Civil society organisations begin campaign for RTI Bill </li></ul><ul><li>Government tables RTI Bill in Parliament in 2009 and invites public consultation </li></ul><ul><li>RTI Bill is being vetted by parliamentary committee amidst huge legislative reform agenda </li></ul>
  24. 24. Status of RTI in Sri Lanka <ul><li>Supreme Court recognised RTI as being implied in: </li></ul><ul><li>Fundamental right to speech and expression </li></ul><ul><li>Supreme Court ordered disclosure of information in environmental litigation </li></ul><ul><li>Major laws restrict publication or disclosure of information </li></ul><ul><li>Law Commission drafts an Access to Official Information Bill in 1996 – rejected by CSOs for its weaknesses </li></ul><ul><li>RTI - on the backburner due to other issues of governance </li></ul><ul><li>Fundamental right to thought and opinion </li></ul><ul><li>Lawyers & journalists drafted a stronger Bill but could not be tabled in parliament despite Cabinet approval in 2003 </li></ul>
  25. 25. Status of RTI in Afghanistan and Bhutan <ul><li>Both countries have guaranteed RTI as a fundamental right subject to restrictions imposed by law </li></ul><ul><li>No civil society push for RTI in either country </li></ul><ul><li>Government of Bhutan drafted an RTI Bill in 2007 without any public consultation – Bill remains secret till date </li></ul><ul><li>Nascent interest in some Afghan CSOs to draft RTI Bill </li></ul><ul><li>No RTI Bill in Afghanistan due to preoccupation with combatting anti-State militant groups </li></ul>
  26. 26. SAARC’s commitment to RTI SAARC Social Charter, 2004 – (Art. II, Principles, Goals & Objectives) New Delhi Declaration of SAARC Ministers for Social Development, 2008 – Underline the importance of transparent and accountable conduct of administration in public and private, national and international institutions ;” “ Promote and facilitate through exchange of best practices, early adoption in accordance with national priorities, of appropriate legislation, conferring right to information for all citizens from the governments and public authorities , to eliminate arbitrariness and corrupt practices & improve governance at the regional, national and local levels” “ State Parties:… “ We … agree to…
  27. 27. Email : [email_address] For further information please contact: Tel : +91-11-43180215/ 43180201 Website : www.humanrightsinitiative.org B-117, I Floor Sarvodaya Enclave, New Delhi, India – 110 017 Commonwealth Human Rights Initiative Fax : +91-11-26864688 Thank you

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