Right to Information: Nepal Taranath Dahal Chairperson FREEDOM - PowerPoint PPT Presentation

Right to Information: Nepal Taranath Dahal Chairperson ‘FREEDOM FORUM’ Nepal

Right to Information (RTI):Nepal  Introduction  RTI Legal Framework • Constitutional Provisions • RTI Act-2007 Key Features  Critique of the RTI Act • Positive Aspects • Shortcomings  Opportunities in Utilization of the RTI Act  Challenges in Implementation of RTI Act  Implementation of the RTI (Implementation of Enforcement Mechanism  Future of RTI: Tasks Ahead

Introduction  First time constitutionally guaranteed in the Constitution of 1990, Article 16/ Interim Constitution 2007, Article 27  Given effect in July 2007 with the adoption of the RTI Act-2007  The Peoples Movement-1990 shifted paradigm in political system that recognized people’s fundamental rights and accepted people’s participation in governance.  RTI Act is the outcome of one-and-half decade of the RTI movement led by media community and civil society organizations. Contd….

 First bill was tabled in the parliament in 1993, but the bill was rejected as it had hostile provisions  Judicial Interpretation of the right by the Supreme Court  Civil society/media organizations took initiatives in 1997 to produce a draft bill and presented to government in 1999  After a long gap bill was tabled in 2001 in the parliament  The bill never saw light because of political deadlocks and dissolution of parliament Contd…

 In 2004 Law Reform Commission came up with new draft of the law  A High Level Media Commission, established after the popular movement of 2006, produced a report in September 2006 calling for the adoption of a RTI law to give effect to the constitutionally protected right  Government formed a taskforce to draft a bill in 2007  Number of Civil Movements for RTI; Freedom Forum initiated a national campaign  The Legislature-Parliament passed the RTI Act in 2007 to give effect to the right

Part--One (RTI Legal Framework)

RTI Legal Framework  Constitutional Provisions  Article 27 of the Interim Constitution of Nepal guarantees the RTI, which are identical to 1990 Constitution (Article 16).  Article 16 of the Constitution 1990 provides that “Every citizen shall have the right to demand or obtain information on any matters of his/her own or of public importance. Provided that nothing shall compel any person to provide information on any matter about which secrecy is to be maintained by law.”  RTI is considered part of the right to freedom of expression by the international human rights courts in recent year, is protected by the international instruments to which Nepal is a party. Contd…

 ICCPR protects the right to freedom of expression inter alia right to information under Article 19. Such international instruments are part of the Nepalese legal system according to the Nepal Treaty Act.  Nepal ratified ICCPR on 14 May 1991  Article 9 of the Nepal Treaty Act 1991 states that, “If any provision of the treaty of which His Majesty's Government or the Kingdom of Nepal is party, after such treaty is ratified, acceded or approved, is inconsistent with any law in force, such law to the extent of such inconsistency, shall be void and the provision of the treaty shall come into force as law of Nepal.” Contd…

RTI Act-2007: Key Features  Scope  Includes three dimensions: which bodies have obligation to respond to requests for information, what type of material is under the definition of “information” and who is entitled to exercise right to access information.  Applies to public agencies-constitutional and statutory bodies  Defines information as any written document , material or information and decisions of public importance made by public agency. Contd…

 RTI belongs to ‘every Nepali citizen’ and every Nepali citizen shall have access to information held by public agencies.  Exceptions  Five categories of interest that could justify a refusal to disclose information. The list includes national security, information affecting harmonious relationship among various castes and communities, privacy and others.  A public body may only invoke these exemptions if there is an “appropriate and adequate reason”. Contd…

 Application Process and Appeal  Each public body must appoint an Information Officer (IO) responsible for dealing with information requests.  A Nepali citizen who wishes to obtain information must submit an application to the relevant IO mentioning the reason.  The IO is obliged to provide information immediately or within 15 days or provide notice to the applicant of the reasons for any delay.  An applicant may appeal to the head of the public agency within seven days in case s/he is not provided with the information or partial information.  In case of dissatisfaction over the decision made by the head, the requester may file an appeal to the National Information Commission (NIC) within 15 days. Contd…

 Proactive Disclosure  Public bodies are obliged to classify, update and disclose information on a regular basis.  The Act provides a concrete list of information that is mandatory for public bodies to disclose pro-actively. However it has failed to provide guidelines about the process of making information public.  The concerned provision simply states that the public bodies may use different national languages and mass media while publishing, broadcasting or making information public. Contd…

 National Information Commission (NIC)  A much broader role for the NIC as a promoter and protector of the RTI.  The recognition and execution of this role by the Commission is indispensable for the successful implementation and the fulfillment of the objectives of the RTI Act.  Apart from its major responsibility of adjudication of cases, it may issue orders for the public agencies, provide recommendations and suggestions to the government and other public bodies; prescribe timeframe to the public bodies to provide information. Contd…

 Protection of Whistleblowers  The Act provides protection for whistleblowers affirming the responsibility of employees within public agencies to provide information proactively on any ongoing or probable “corruption or irregularities” or on any deed constituting an offence under prevailing laws.  It is forbidden to cause harm to or punish a whistleblower for such disclosure and whistleblowers may complain to the Commission and demand compensation in cases where they are nevertheless Contd...

 RTI Regulation-2008  The Regulation was adopted pursuant to Article 38 of the RTI Act-2007.  It provides schedule of fees to obtain information, elaborates the list of information to be disclosed by the public agencies proactively, describes the procedures for an appeal to the Commission and gives a template of appeal.  It also sets the time limit for the head of public agencies to respond to the complaint made by an applicant, thereby filling the gap existing in the Act.

 Critique of the RTI  Positive Aspects:  Come into effect after 30 days of validation  No any discretionary power to the government  Broad coverage of public bodies obliged to provide information  Obligation for updating, maintaining and disclosing information; concrete list of information mandatory for public bodies to disclose on a regular basis.  Special timeline of 24 hours for providing information relating to defense of human life and minimum fee  Provision of compensation; A ppeal to the Commission for compensation within 3 months from the date of not acquiring information, acquiring partial or wrong information or destroyed information

 Shortcomings  The provision of access to information only to Nepalese citizen not to an individual limits access of other people and is against standard set by the ICCPR  The definition section of the Act does not specifically make clear whether the RTI Act applies to the legislative and judicial branches of government. as well as to the executive.  Provision of submission of application “mentioning the reason”, a discouraging move  Strict fee provision regardless of the use of information  Exemption regime fails to strike a careful balance between the right of the public to know and the need to protect other important public interests. Contd…

 Inclusion of public interest overriding  Classification process (Committee, classification of document for a maximum 30 years and additional period of confidentiality)  Classification scheme has no conceptual clarity  Judgment on request for access to a document on the basis of the exceptions regime.  A separate law or civil service rule may regulate classification levels, to ensure appropriate management of files within public bodies. This should not, however, affect the question of disclosure under the RTI Act.  No clear overriding effect regarding the enforcement of its provisions of RTI

Part--Two (Implementation of the RTI)