Right to information, or rather the Right to Information Bill due to be tabled for deliberation in the ongoing session of Parliament, has lately become a fiercely debated issue. And understandably so. Right to Information (RTI) Act will have far-reaching financial and human resource implications on all branches of government, including the executive, judiciary, legislature, and the military. It will also have far-reaching implications on the way in which the government machinery archives and disseminates public information and the way in which the public obtain, demand, and make use of information. The question of an RTI Act’s implications deserves a lot of thought and public discourse. We need to start the discourse by trying to understand some fundamentals.
Right to information from which the RTI Bill was born is among the 22 fundamental rights the Constitution of Bhutan guarantees (Article 7, Section 5: A Bhutanese citizen shall have the right to information). And this is the premise. There are some people who argue that there is no ambiguity in the right to information provision enshrined in the Constitution and we do not need to ask for something that is clearly granted. This argument misses on important point – the need for laws, rules, and regulations to give constitutional provisions flesh and blood, to breathe life into them. Laws and rules are tools to make constitutional provisions practicable and implementable. Article 7, Section 6 of the Constitution says, without any ambiguity again, that “A Bhutanese citizen shall have the right to vote.” Would we then say we do not need electoral laws, rules, and regulations because the constitutional provision is clear?
We are a democracy and RTI is an important element of democracy. An international information and media expert once told the Bhutanese press that a democracy without an RTI Act is incomplete. Information, one would interpret his point, is power. Isn’t democracy all about empowerment? Information in the public domain, with the exception of some, belongs to the public, citizens. Therefore, citizens need to be empowered through legislation to claim any information that will enable them to understand how judiciously public resources are used and how public affairs are conducted. This will bring much-needed sense of accountability and transparency to public officials and offices. Considering the great length to which some public officials go to lock away public information to conceal their weaknesses and failures, an RTI Act will come as a big legislative push to open up. In the least, an RTI Act will help our public offices maintain proper records of public information, some of which is lost for want of a professional cataloguing or archival system.
An RTI Act will also help the public gain access to some traditionally shy public offices like the army, police, and judiciary. We hardly know what is happening in these public institutions and some other obscure public offices. An RTI will hopefully bring a good measure of transparency in these institutions and offices.
Understandably, the proposed RTI Bill, which has undergone a series of dissection and rewriting in the last five years of incubation, has faced considerable resistance from different quarters of society. Most of it, originating in the public service, stems from uncertainties about the proposed bill and fear of being rudely shaken by sudden inundation of public demand for information. This is the same reason why the former government kept pushing it aside for a number of reasons. Even after five years of discussion on the bill, on and off, many public servants still think that an RTI Act will allow the media and members of the public to come rummaging through their files and records. And most of our public officials are not used to information being demanded of them as a matter of right. That is why, some members of the former government said that Bhutan was not culturally ready for an RTI law. Some experts tell us some of these fears are valid. Which brings us to possible challenges an RTI law could face.
A bigchallenge that even staunch RTI proponents acknowledge is the huge information management and retrieval system and infrastructure that the law will require. Once the law is enacted, it will demand substantial – some say huge – human resource and infrastructural investments to start and keep running adata cataloguing and indexing system. The system then needs to live up to the demands and expectations of the public who will come a-marching citing the provisions of the law that stipulate time frames for the delivery of requested information. Experts say that failure to deliver the right information on time will lead to a host of complications, including public officials being harassed and sued and the public losing trust in the government and public service system. Next, how much does the average citizen understand RTI and is able to make the best use of the Act? The RTI Bill, unfortunately, does not have any provision on education and awareness. Then there is a concern over elite and business houses demanding information to advance their personal and business interests, which stand against public interest. Can we measure up to the demands and rigours of a situation that an RTI Act will create? Can we deliver? Are we ready? Are we prepared? These are some of the questions that some people, who think that an RTI Act should wait, ask.
Although we need to be mindful of these challenges and be cautious about them, they should not become the reasons for stalling or scraping an important piece of legislation. Cost. Can we afford? Necessary things come with a cost. Think of the cost and democracy comes to mind. Come to think of elections. Are we ready? Some experts tell us any nation that has embraced democracy is ready, or should be ready, for an RTI Act. Are we prepared? Essentially not. But we need to begin somewhere. We were not prepared for democracy and many things that followed. We can start by preparing for the Act or enact the Act and put things in place accordingly. The latter will probably give more reasons to put things in place. Now who will put things in place for the Act? This is a crucial question.
The draft bill says the Ministry of Information and Communications (MoIC) will be the implementing agency of the RTI Act. We can immediately see a conflict of interest here. First, the ministry comprises bureaucrats who identify themselves with the bureaucrats of other government agencies. And government ministries are usually protective of a lot of public information. Second, the MoIC is a government agency that functions directly under an elected government, which itself is answerable to the RTI Act. The custodian of the Act should be an independent office like the Central Information Commission of India, which is under no political or bureaucratic pressures.
In fact, we can see some problems with the draft bill which we hope Parliament will take note of. Section 30, for example, states that “Notwithstanding section 5 of this Act, a public authority may deny or limit a request for official information under this Act, if:(1) compliance with the request would substantially and unreasonably divert the resources of the public authority from its other operations; or(2) compliance with the request would substantially and unreasonably interfere with the performance of the lawful functions of an official of the Government; and(3) the head of public authority has personally attested to this fact. This Article effectively gives a public official enough reasons to deny information if the head of the agency approves of that. What is the measure for “substantial” and “unreasonable” diversion of resources and interference with the performance? Of course, an RTI Act will mean diversion of public resources and “interference” with functions of public officials. This section, we suspect, will become a source of refuge and insulation for public officials.
Besides, under the “Exempt Official Information”, a public authority may refuse to disclose the requested information for at least 10 reasons. These reasons give ample room for public officials to manoeuvre and deny information. For instance, experience tells us that national sovereignty, integrity, and security have been variedly defined by government officials to deny information. If we are not careful, some provisions can kill the law.
If the need is undeniable, we must frame an honest law. Otherwise, it will lead to confusion.