The Bhutanese Leading the way.
Bhutanese members of the Transparency Advocacy Group (TAG), a South Asian regional think tank focusing on transparency and Right To Information presented a set of indicators for assessing the state of transparency and RTI in the SAARC region.
As per the latest Transparency International rankings the majority of South Asian Countries have still a lot more to do in fostering more transparency and accountability. In the rankings list of 176 countries for 2012 Afghanistan stands at 174, Bangladesh at 144, Nepal and Pakistan both at 139, India at 94, Sri Lanka at 79 and Bhutan at a relatively better position of 33. Maldives who was not ranked in 2012 due to lack of adequate information stood at 134 in 2011.
In coming up with a set of indicators and benchmarks for Right To Information that can be used uniformly to assess the state of transparency, I believe we should not only focus on the technicalities of the RTI law but also the surrounding environment which ultimately will decide the success of the law.
Therefore my presentation is divided into two sections. In the first section I will highlight six important institutional and democratic indicators that need to be present for the success of RTI. In my second section I will focus on the need for nine uniform indicators and benchmarks that are needed in RTI laws to ensure we have a good RTI Act in any country.
Institutional and Democratic indicators
1. Political Will
This is often the most crucial factor in determining whether a RTI Bill will be introduced at all or even if it is introduced, whether it will be successfully and seriously implemented.
Political Will to a large extent is the difference in why four SAARC countries like India, Pakistan, Nepal and Bangladesh have RTI while others like Afghanistan, Bhutan, Sri Lanka and Maldives do not.
We should also note the qualitative difference in political will in states that do have an RTI. In India where RTI came about due to stronger social and political forces the RTI is a better success in its implementation than Pakistan or Nepal.
The level of political will can be judged if political parties are aware of RTI, if it is in their manifestos or legislative priority and on how seriously it is implemented.
2. Civil Society and civil awareness
RTI in South Asia to a large extent has been championed by Civil Society bringing it to the forefront of political debate and to some extent media coverage.
A key difference in the SAARC countries that do or do not have RTI is civil society. Countries with RTI like India, Pakistan, Nepal and Bangladesh have a relatively more well developed and vocal civil society than in non-RTI countries like Bhutan, Sri Lanka, Maldives and Afghanistan.
As well known from the experience of SAARC countries the presence of a vocal and well organized civil society not only makes the demand for RTI sustainable but also adds to the qualitative output of the Act and its implementation.
Another important factor is in a region where the government cannot or will not reach all areas the civil society plays and important parallel role in creating awareness on issues like RTI.
The presence of Civil Society in large numbers, their quantitative and qualitative role in society, legal provisions to support them and their role in influencing decisions making will provide strong support to demands for transparency legislations like RTI.
3. Media Freedom and support
Apart from the role of government and civil society another important partner in the success of RTI is the media.
The media by default of its own professional interest demands and advocates for transparency laws like RTI. In the SAARC region perhaps the strongest and most visible advocates of RTI is the media. The media in many ways is a force multiplier for RTI advocates bringing both the attention of the government and also ordinary citizens to the need and implementation of RTI.
Therefore, it is important that for there to be successful RTI awareness, legislation and implementation the presence of a strong, vibrant and independent media is a vital pre condition. Again in the four countries that do not have RTI media freedom is restricted in many ways from political interference to media being dependant on government handouts.
4. Resource and Manpower allocation
As for many things in a state a good RTI Act should be accompanied with enough budgetary and Human Resources support.
The lack of either can effectively strangle the effectiveness of RTI or lead to long delays in appeals not very different from the judicial experience.
One key selling point of RTI is that it does not cost much especially for poorer countries and can be included within the current mechanisms. However, there is a danger also of budgetary and Human Resource under allocation leading to implementation problems.
5. Judicial Support and awareness
Judicial awareness and support on RTI is important in both categories of countries that have or don’t have RTI. In countries that have RTI the Central Information Commission enjoys only a quasi-judicial authority with final appeals that can go to the judiciary.
Interpretations on the question of law in RTI can also go to the judiciary.
In countries without RTI, like Bhutan for example the judiciary can play a potentially important role in making the government provide information. In Bhutan we are in a strange situation of where the Constitution provides for Right to Information but the government is yet to bring in a RTI law. Recently some senior member of the Bhutanese judiciary have explained that if any ordinary Bhutanese brings a case against any government institution for not providing public information then the judiciary will have to give directions to the government based on the fact that RTI is a fundamental right.
6. Bureaucratic attitude and accountability
In the SAARC region more than politicians the biggest opponents of RTI legislation and implementation are the bureaucracy. The bureaucracy is already very powerful due to their various legal and executive functions. However, the lack of transparency gives them discretionary powers to engage in acts of corruption and abuse of power or function in an atmosphere of impunity and non accountability to the people they serve.
Therefore RTI affects this category of people the most and at the same time ironically makes them also the implementers of a system that makes then more accountable.
Often one big challenge to transparency laws in laws that govern the bureaucracy like a Civil Service Act, rules or oath of secrecy etc. In Bhutan while the constitution cites Right To Information as a fundamental right which should overrule other legal acts or rules most civil servants happily refuse to share information pointing out secrecy clauses in the civil service acts and clauses.
Also the bureaucracy often tries to sabotage an RTI by exploiting various loopholes in Transparency laws by either assigning people who know little or have little information to be information officers or keeping the cost of information high.
Therefore, bureaucratic awareness, laws, systems, culture and accountability is also important in successfully implementing a strong RTI Act.
I will now focus on specific and Universal indicators that are a must to have a good transparency law. These specific indicators can also be used to asses if the RTI Act and system is one that promotes transparency and accountability in reality or is only paying lip service to it.
1. Legal Supremacy
The RTI Act should ideally be a legally strong Act that has some constitutional basis like a fundamental right or transparency right.
A constitutional basis of the Act will help not only ensure legal supremacy as the constitution trumps over ordinary Acts and laws but it will also prevent unnecessary legal tampering or legal challenges to the status of the Act.
Even in the absence of constitutional guarantees the Act should trump over all past and existing secrecy laws that restrict the flow of information that is in the public interest. The Act should also have a clause to demonstrate its supremacy over future Acts otherwise there could be instances of even a Civil Service rule in the future overriding the RTI.
The Act should be set up and also implemented as a fundamental human right.
To be continued..
