Right to Information: Nepal

Taranath DahalChairperson

‘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; Appeal 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)

Implementation of RTIThe level of implementation is poor and after two-and-half years, the Act does not live up to people’s aspiration. “The government feels its responsibility is over after the promulgation of the Act and has not taken concrete steps to make its massive publicity and reach it to the people’s level which resulted in the non-implementation of the Act”, says RTI researcher Yek Raj Pathak.

Implementation and Enforcement Mechanism Implementation Lack of coordinating body No clear which ministry is responsible for the

implementation of the Act No unit established by the executive branch No clear

responsibilities allotted within executive branch.Contd…

Ministers, concerned public and non-governmental entities and political parties are reluctant and most are unaware of their responsibilities regarding implementing RTI. Government officials still behave as if

information generated in their offices is their private property not public.

Enforcement and Oversight: No noteworthy progress on part of NIC Disappointing situation-no public awareness,

no government mechanism for enforcement NIC-decision on 12 appeals, commitment

workshop in Kathmandu, five regional conference

Publication of Booklet, RTI implementation guideline for heads of public agencies; translation of law and regulation into English; development and airing of PSA etc Number of appeals registered in the NIC are

minimal; so far 12 appeals are registered.

Information Officers: The primary obligation of appointing Ios has

not been fully fulfilled. Central level public bodies have appointed Ios

but situation is disappointing at district level No courts in districts comply with this

provision of RTI

Record Management System No proper record management sysytem in place

causing problem to the supply side to provide information The documents in most of the offices are packed

in sacks. The case of Biratnagar sub-metropolis (Income

Tax and DAO curfew order information) as reported in Drishti Weekly reflects ignorance towards this

Proactive Disclosure It is not found widely prevailing in practice in

Nepal; Home Ministry website little information The Act is not clear whether proactive disclosure is

the obligation of the Head of the Public Agency or of the IO

Training of Officials The Act’s provision of imparting periodic training for

Ios to make information dissemination systematic has yet to be brought to actions

Promoting openness could only be materialized only when requester could information on time and format

Public Education/Awareness Campaign No massive public awareness on the essence and

significance of RTI so is its use No substantial campiagns to educate people Smaller number of information request indicates lack

of awareness on demand side Limited intervention from NIC due to lack of adequate

competent human resources FF launched initiatives to aware public but nominal

Part--Three(Opportunities in Utilization of RTI Act)

Opportunities in Utilization of RTI Act Utilization by Civil Society Assumes considerable importance in the governance

process and as a bridge between community and public agency

Role in monitoring public service delivery through public participation; creating critical mass

Case study of Koshi flood victims (RTI used as a tool to check wrongdoings) and LGCDP

Utilization by Media Media has not exercised this right to flow accurate,

balanced and credibe infromation Journalists have not used this a tool to promote

investigative journalism, case of Ramkji Dahal

Utilization by Business Sector Facilitates effective business practices Commercial requesters are one of the important user

groups of this law But the practice has not been initiated Its use is significant to strengthen third party

monitoring of public expenditure

Utilization by general public Citizens have not been able to grasp the full power of

this legal instrument Frequent follow-up visits, non-friendly attitude of the

officials of the concerned agency and difficulty to enter Singha Durbar in course of purposive works are experienced to be the discouraging factors to seek and receive information

Part--Four(Challenges in Implementation of RTI)

Challenges in Implementation of RTI Political Transition Lack of Political Commitment Lack of Monitoring Mechanism Deep-rooted Culture of Secrecy in Civil

Service/Bureacracy Limited Civil Society Campaign

Part--Five(RTI:Tasks Ahead)

State/Parliament Take initiatives for constitutional reforms on RTI Take initiative to make RTI enshrined in the constitution

as per international standards. Every person regardless of nationality, residence and

other status should enjoy the right to information. The Act should be amended to make it clear that it

covers all three branches of the government, and private bodies rendering public services.

All records should fall within the scope of the definition of information regardless of whatever they relate to ‘functions, proceedings or decisions of public importance’

The Act should add public interest override guaranteeing that information will be released where this is in the overall public interest

The Act should not provide for a system for classifying system. Decision on disclosure of information should be made on a case-by-case basis rather than on classification status

The fee structure should make it clear that the applications may only be charged the costs involved in duplicating and delivering the requested information

The culture of providing information only on demand should be put to an end by adopting measures to promote openness

Whistleblowers protection should apply broadly to all disclosures of information which reveal the existence of serious threat to public interest such as public health, environment protection and so on.

Government: Establishing unit either under PM’s Office or MoIC to

coordinate implementation and monitoring of the RTI Act.

Taking overall leadership of RTI with high political commitment.

All Central Public Agencies should comply with provisions of RTI law at the secretariat, regional, district and line agency level, outlining various tasks that need to be undertaken

Record management system and practices should be improved in public agencies, including local government so that it could facilitate quicker access to information.

Government should develop a model agency to demonstrate exemplary practices on RTI so that other public agency could replicate it.

Developing internal communication mechanism in public agencies by harnessing modern information technologies.

Annulling classification of information carried out under the leadership of Chief Secretary

Including civic education on RTI in curriculum in secondary and higher secondary level.

The government or concerned ministry should immediately dispatch copies of the RTI Act to public agencies

Making general public aware on the use of RTI and strengthening demand side to promote RTI culture.

Supporting NIC independent status by reducing its entire dependency on the government

Providing necessary training to representatives of public agency across the country to facilitate the recruitment of IOs in consultation with civil society organizations, commission and consultants

Imparting training to employees of Public bodies and arranging regular interaction between IOs and media persons in order to promote the culture of openness and proactive disclosure of information

Commission: The coverage of the Commission should be expanded

nationwide and strengthen its capacity. The Commission should sensitize stakeholders, including

demand and supply side in an effort to promote the use of RTI

The commission should enhance the collaboration and cooperation with Civil Society

The Commission should consult selected public agencies and develop and circulate schemes containing minimum content and templates for the purpose of proactive disclosure required under the Act

The Commission should develop the easy process to handle the complaints and set up the monitoring mechanisms to execute its own decisions

Civil society and non-government organizations:

CSOs and FOI advocates should constantly put forth advocacy to ensure progressive RTI in the upcoming constitution.

Providing pro bono litigation support to information seeker; RTI clinic and free hotline service should be introduced nationwide.

RTI guideline focusing on different stakeholders (demand and supply sides) such as civil society, media, should be prepared and disseminated

Comprehensive study on the assessment of implementation status of RTI in different perspective should be carried out.

Information, Education and Communication (IEC) materials should be prepared and reached out to general public through different media as per the convenience of people.

Media: Along with civil society, launching campaign to make

people aware on RTI law and its usage by producing news and articles so that people belonging to different walks of life could explore its utilization

Media as a watchdog should use it as a tool to carry out investigative reporting

Media should constantly flare up the issues of reforms felt essential regarding RTI laws since it could create high sound and put ample pressure for necessary reforms

Journalists should maximize the use of RTI to enhance public credibility on own product and explore the issue of public interest.

Donors and development agencies: Financial, technical and policy support from

donors is essential for the government, NIC and civil society organizations engaged in promotional and capacity building activities.

Support from donors and development agencies should also be focused on the infrastructure development across the country so that it would be helpful in the implementation.

Donors an development agencies should comply with RTI for working as model agency.

The End

Thank You !!

Taranath Dahal

Emails:tndahal@yahoo.com

freedomforum@enet.com.npwebsites:

www.freedomforum.org.npwww.nepalpressfreedom.org