1 rti & developing world presentation by shri a.n. tiwari, central information commissioner

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RTI & Developing World

Presentation by Shri A.N. Tiwari, Central Information Commissioner

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Limitations:

• RTI is a relatively recent-phenomenon.

• Not enough research material on RTI in Developing Countries.

• Developing Countries are extremely diverse in several respects socio-economic condition, constitutional status and political systems, culture, history and state of law and order, etc. This makes any generalization difficult.

• Approach to RTI has not been uniform in countries that have RTI. (Eg. Reasons for adopting RTI are widely varied)

• Evolution of RTI in these countries since adoption of the Act has been varied.

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What are Developing Countries?

• Variously described

– Global South– Emerging Markets– Middle and Least Developed Countries, etc.

• Also known as Third World Countries

• While “Developed Countries” is essentially an economic phenomenon, “Developing Countries” is a Political description.

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What are Developing Countries? (Contd.)

• Political Culture and social and economic conditions in these countries are varied.

Approach to democracy is varied. Quite a few of these are democratic in a formal sense only.

There is covert authoritarianism in quite a few of them.

• Comprise 4/5 of world’s over 6.79 Billion population. Mostly poor and struggling.

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What are Developing Countries? (Contd. 2)

• People in many of these countries are mal-governed.

Most have a colonial past and several have retained colonial administration after independence.

There is pronounced reflex towards secrecy in administration in most Developing Countries.

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Continent Total No. of States

No. of Developing Countries

No. of Developing Countries with RTI / FOI

Laws

Asia 42 36 14

Africa 53 53 8

South America 12 12 6

North America 19 17 2

Europe 39 15 11

Australia & Pacific 13 11 1

Total 178 144 42

RTI as adopted by Developing Countries

Courtesy : World Bank & IMF Reports

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Continent Total No. of LDCs

Total Population

Total No. of LDCs with RTI / FOI

Asia 10 306.17 million 1

(Bangladesh)

Africa 34 470.10 million 3

(Lesotho, Uganda & Mozambique)

Australia & Pacific 5 1.02 million Nil

Caribbean 1 8.9 million Nil

Total 50 786.19 million 4

Least Developed Countries & RTI

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Total number of UN Member Countries 192

Total no. of Democracies among UN Members 186

Total no. of Developing Countries among UN Members 137

Total no. of Democracies among Developing Countries 134

Total no. of Democracies among Least Developed Countries 49

Total No. of Democracies among Developing Countries with RTI / FOI

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Democracy in Developing Countries:

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RTI & Developing WorldDemocracy in Developing Countries (Contd.)

• A majority of Developing Countries which have RTI are Democracies.

• Approach to RTI as a rights-driven instrument differs from democracies to single party ruled States, authoritarian States and covert authoritarian States.

• Evolution of RTI regimes in democratic countries and not-so-democratic countries is markedly different.

• Even when Countries are signatories to human rights charter, those with single party rule or authoritarian regimes look upon RTI more as Transparency in governance than as right. RTI, for them, is more “access to information” than “right to information”.

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Progress of RTI in Developing Countries:

• In 1990, only 12 countries had RTI Mostly in the Developed World.

• So far, over 80 countries have enacted RTI Laws.

• From 1990 till now, 68 countries have joined the list of countries with RTI. Of which, 55 were Developing Countries.

• Only 1/5th of World’s population generally has positive conditions for RTI. The principal worry of these vast number of people in Least Developed Countries (LDCs), is a way to live access to food and potable water.

• 1990 was a watershed in world history marked by collapse of Soviet Union and bringing down of Berlin Wall, when democracy was said to “break out”.

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Progress of RTI in Developing Countries:

• Since 1990s, the right to information has acquired a vital importance in those countries that have suffered dictatorships and severe human rights violation.

• An example is South Africa’s Access to Information Law, which became critical to the country’s transition from the apartheid regime to the post apartheid Democratic set–up. South Africa’s experience demonstrated that the presence of right to information law reinforces the policy of healing touch followed by post authoritarian governments.

• Push for RTI in States gained steam with democracy’s world-wide acceptance as the principal mode of governance. Developing Countries were slow to switch over.

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RTI & Developing WorldProgress of RTI in Developing Countries: (Contd.)

• Further steam was gained by the RTI movement by multilateral and bilateral funding institutions actively promoting its cause.

• International rating agencies gave high ratings to countries with RTI Laws in their transparency, integrity and governance indices.

• Civil Society institutions and advocacy groups played a role in nudging Governments towards RTI Laws.

• Countries which didn’t have democratic forms of Governments Single Party ruled or covertly authoritarian also adopted Transparency Laws.

• In spite of this push, a majority of the countries in Africa & Asia are still without RTI Laws. Some of these countries like those in North Africa, are major States and international players.

• In Asia, 18 out of countries (42%) have RTI Laws; while their number for Africa is 8 out of 61 countries (15%) and 10 out of 14 (71%) for Latin America.

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RTI & Developing WorldWhy Developing World is slow to adopt or promote RTI?

• Slow democratization.

• Covert authoritarianism or authoritarian regimes usually backed by Armed Forces.

• Limited participation in globalization process.

• Low Literacy Rates especially in Least Developed Countries Out of 50 LDCs which are UN Members, only 3 have RTI Laws.

• Absence of Civil Society or Civil Society Movements.

• Inadequate or absent administrative culture exploitative regimes. Several African States have endured long civil strife and internecine warfare.

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• Most Developing Countries practice democracy in some form or the other, but most have not adopted RTI Legislation. Latin America is an exception though.

• In many Developing Countries, the Executive enjoys vast discretionary powers, frequently backed by Armed Forces. There is apprehension that RTI Laws would dilute those powers or lead to irksome exposes.

• Developing Countries figure low on global integrity and corruption indices. Executive authority there are not too keen on transparency for obvious reasons.

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• Most such countries do not face, or are immune to, international pressure for internal reforms. Are saddled with exploitative regimes frequently supported by powerful external forces keen on exploiting primary produces minerals, etc. of such countries at cheap rates.

• Poor international mechanism to enforce commitments accepted by States through accession to covenants on human rights including Right to Information.

• Poor countries consider RTI expensive. Processing cost of an RTI-petition is around 20 to 40 US dollars, which is considered high and even unaffordable.

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• Transparency guarantees linkage to the charter of freedoms, paradoxically, stymied spread of Transparency Culture in Developing Countries.

• China’s economic success has engendered a debate regarding whether democracy is necessary to promote welfare.

• Democracy is essential, but not a necessary condition for information access laws.

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Digital Divide:

• There is pronounced “Digital Divide” between Developed and Developing World including LDCs.

• Access to electronic information radio, television or internet is still poor in Developing Countries, especially in Least Developed Countries.

• By end-2004, 14% of world population was using Internet. Over half the population in Developed Countries had access to internet, compared to 7% in Developing Countries, and less than 1% in 50 or so LDCs.

• The Millennium Development Goals (2006) highlighted that Digital Divide was working against spread of RTI in Developing Countries and its strengthening in those countries that already had it.

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RTI & Developing WorldDigital Divide (Contd.):

• Ministerial declaration of ECOSOC also emphasized the need for bridging the Digital Divide to strengthen transparency guarantees.

• Developing Countries are frequently fearful of free information especially about trans-border information, which is considered destabilizing. Their mind-set translates into tightfisted approach to domestic information as well.

• It is a throwback on the 70s when guided by what was called the New Information Order, developing countries enacted laws to monopolise information and make its dissemination or disclosure extremely difficult. Official Secrets Act became pervasive.

• These laws prevented Developing Countries from taking full advantage of Digital Revolution.

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What can be done ?

• Transparency in governance needs to be promoted as a virtue in itself a symptom of contemporaneousness of government — rather than a by-product of basic human rights.

• If we accept that a full democracy is a pre-condition for the right to information, it can be also said that Developing Countries do not have the chance to use the right to information wholly yet.

• Mere adherence to transparency through extensive voluntary disclosure by administration is sufficient to lead to substantial improvements in governance.

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RTI & Developing WorldWhat can be done (Contd.)?

• Transparency will promote Trust and Social Capital by lowering if not eliminating the barriers between the government and the governed.

• It will prevent rent-seeking and myriad forms of government corruption that impair optimal utilization of resources to promote welfare.

• Transparency is imperative because accurate and reliable information held by Government regarding such matters as ecology and environment, natural resources and their use, poverty and related data, can play crucial role in devising correct strategies for poverty alleviation and sustainable development.

• Transparency enables Developing States democratic or not to appeal attractive to private investment capital seeking world-wide investment avenues for “impact finance” in areas such as poverty alleviation, literacy and education, healthcare, infant mortality, nutrition, environment and so on.

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What can be done ? (Contd.)

• Countries may be enthused to commit themselves to progressively higher levels of transparency in administration, if they are not required to simultaneously prove their democratic credentials, which is a larger and, a lot more complex issue.

• It may be necessary to create a frame-work of minimum transparency through a global covenant for all States to commit to (on the lines of the Millennium Goals) over a defined time-frame.

• Multilateral and, even bilateral aid, should be tied to States adhering to the normative goals irrespective of the type of regimes they have.

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RTI & Developing WorldWhat can be done ? (Contd.)

• Strategically, it may help if transparency guarantees are located within domestic arrangement for free flow of all manner of information radio, television, press and so on.

• Selective approach to information as a right may lead to enactment of hollow laws, with no more than mere symbolic value, and no real impact. Cause of transparency will suffer. Governments should come out with General National Information Access Policies.

• It is also time for examining if private and voluntary sectors be or can they be kept out of citizens’ transparency rights.

• It has assumed urgency as progressive privatization is ceding large areas of action earlier with Governments to private players. PPPs are the new trend.

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What can be done ? (Contd.)

• A phenomenon which has manifested in Developed Country and is now manifesting in Developing Countries is Asymmetric information.

• The few those have the wherewithal to access information outpace those not so well endowed.

This needs policy-attention!!

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RTI & Developing WorldCertain RTI Regimes in Developing Countries:

Definition of Information:

India Any material in any form, including records, documents, memos, e-mails, opinions, advices, etc. and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.

Pakistan “Record” means record in any form, whether printed or in writing and includes any map, diagram, photography, film, microfilm, which is used for official purpose by the public body which holds the record.

China “Government information” means information made or obtained by administrative agencies in the course of exercising their responsibilities and recorded and stored in a given form.

Azerbaijan Any facts, opinions, knowledge, news or other sort of information produced or acquired as a result of any activities, irrespective of the date of producing, presentation form and classification

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Definition of Information:

South Africa ‘‘record’’ of, or in relation to, a public or private body, means any recorded information—

(a) regardless of form or medium;

(b) in the possession or under the control of that public or private body, respectively; and

(c) whether or not it was created by that public or private body, respectively.

Mexico “Documents” means files, reports, studies, acts, rulings, official letters, etc. and any other record that documents the exercise of functions or activity of the subjects and public servants compelled by the Law. The documents may be in any form: written, printed, sound, visual, electronic, computer data or holographic.

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Time-limit for Disclosure:

India • Within 30 days of the receipt of the request.• Life or Liberty: within 48 hours of the receipt of the request.

Pakistan • Within 21 days of the receipt of the request.

China • Open Government information : On-the-Spot to the extant possible.• If On-the-Spot was not possible, then within 15 days of the request.• Maximum extension of time : 15 days.

Azerbaijan • Within 7 working days of the receipt of the request.• Threat to Life, Health or Freedom: within 48 hours (except for holidays and weekends) of the receipt of the request.

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Time Period for Disclosure:

South Africa • Within 30 days of the receipt of the request.

• For information which are voluminous or involving consultation process, etc., a one-time extension of 30 days.

Mexico • Within 10 days from the time the request is presented.

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System of Filing Petition and Appeal:

India • Petition for information can be filed in writing or through electronic means, accompanying such fee as may be prescribed, to the Central / State Public Information Officer.• First Appeal before Appellate Authority an officer senior in rank to the CPIO / SPIO in the public authority.• Second Appeal before the Central / State Information Commission.• Complaint before the Central / State Information Commission.

Pakistan • Petition for information can be filed before the Designated Officer of a Public Body along with such fee as may be prescribed.• Complaint before the Head of the Revenue Division, its subordinate departments and agencies with Mohtasib / Federal Tax Ombudsman.

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China • Petition for government information can be filed in written form or orally (in case of difficulty) by citizens, legal persons or other organizations, with government agencies.• Complaint against an administrative agency, which has failed to fulfill its obligations in respect of open government information, can be filed before higher level administrative agency, the supervisions agency or the department in charge of

open government information (The General Office of the State Council).

Azerbaijan • Petition for information can be filed in written or oral form before an “information owner” (viz. State authorities, municipalities and legal entities irrespective of the ownership type)• Complaint before a Court or the “Authorized Agency on Information Matters”.

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South Africa • Petition for information must be made in prescribed form (or orally in case of illiteracy or disability of the requester) to the Information Officer of the Public Body.• Internal Appeal within 60 days before the Relevant Authority (viz. the Minister responsible for the Public Body / the person designated by the Premiere or the Mayor / the Speaker in case of Municipality)• Application to Court against the decision on Internal Appeal.

Mexico • Petition for access to information by writing or using the forms approved by the Federal Institute of Access to Information, can be filed before the Liaison Section.• Appeal before the Institute within 15 days of the communication from the Liaison Officer.

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Penalty provisions in the Statute:

India • Penalty @Rs.250/- per day (subject to a maximum of Rs.25,000) shall be levied on the CPIO, as the case may be, if the Commission is of the opinion that the CPIO has, without reasonable cause,

refused to receive an information-request.

not furnished the information within the stipulated time.

mala-fide denied the request for information.

knowingly given incorrect, incomplete or misleading information.

destroyed the information or obstructed in furnishing information.• If, in the opinion of the Commission, the CPIO has persisted with any of the above default, it shall recommend for disciplinary action against the CPIO under the Service Rules applicable to him.

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Pakistan • Any person who destroys a record, which at the time it was destroyed, was the subject of a request, or of a complaint with the intention of preventing its disclosure, commits an offence punishable with imprisonment for, a term not exceeding 2 years,

or with fine, or with both.• However, no penalty for delay or non-disclosure.• In case a complaint filed before the Mohtasib is found to be malicious, frivolous or vexatious, the complaint may be dismissed and fine upto a maximum of Rs.10,000/- may be imposed on the complainant.

China • In case of violation of provisions of Open Government Information Regulation by administrative agency and if the circumstances are serious, then administrative penalty shall be imposed on person(s) directly in-charge / responsible for the administrative agency.

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Azerbaijan • No penalty for delay or non-provision.

South Africa •A person who with intent to deny a right of access in terms of this Act—

(a) destroys, damages or alters a record;

(b) conceals a record; or

(c) falsifies a record or makes a false record,

commits an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding two years.•However, no penalty for delay.

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Mexico • Public servants will be administratively liable for failure to comply with the obligations established in the Access to Public Information Law, in the even they commit, inter- alia, the following acts:

Using, removing, destroying, concealing, disclosing, or unduly altering the information in their custody.

Acting negligently, fraudulently in handling requests for information.

Intentionally denying information that is not confidential or categorized as classified.

Delivering information considered classified.

Intentionally providing incomplete information.• Repeated default will be considered serious for purposes of administrative sanction.

1 rti & developing world presentation by shri a.n. tiwari, central information commissioner

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