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Nova Scotia: Still Waiting for Promised Right to Information Reform

Four years ago, the Centre for Law and Democracy (CLD) wrote to the three major political parties in Nova Scotia, calling on them to promise that, if elected, they would enact much needed improvements to Nova Scotia’s outdated Freedom of Information and Protection of Privacy Act (FOIPOP). The Liberal and Progressive Conservative parties both formally promised to introduce these reforms, while the New Democratic Party refused to do so.

In the four years since then, major reforms have been passed in Newfoundland and Labrador, transforming the province’s Access to Information and Protection of Privacy Act into the best in the country and indeed one of the best in the world. The federal government has also introduced some improvements to the Access to Information Act, and committed to major reforms by end 2018, albeit a delay from earlier promises to introduce reforms by winter 2017.

In contrast, despite a personal campaign promise from Stephen McNeil and his subsequent commitment to make Nova Scotia “the most open and transparent province in Canada”, nothing has been done. Indeed, since his election, Premier McNeil has made troubling statements suggesting hostility to openness, most notably his unapologetic admission, in September 2016, that he deliberately uses phones to avoid accountability under FOIPOP. We also note that the Progressive Conservative party has done little to promote FOIPOP reform despite its promises and the NDP party has done even less.

Enough is enough. The reforms that Stephen McNeil promised in 2013 – namely to grant Nova Scotia’s Information and Privacy Commissioner order-making power, to create binding time limits for responding to information requests and to limit claims of solicitor-client confidentiality by government lawyers – were hardly revolutionary or groundbreaking. On the contrary, they merely reflect the existing state of affairs in progressive systems around the world. Information and Privacy Commissioners already have order making power in six provinces, and most countries have clear and binding timelines for responding to requests, including many emerging democracies which lack the resources and information management capacity that Canada has.

We are deeply disappointed that Stephen McNeil failed to fulfil a core campaign promise that he made to the people of Nova Scotia in 2013. However, we still hold out hope that the next government will embrace this vital democratic right. We call on the leaders of all three major political parties to make a firm commitment to begin a robust review of the FOIPOP within one year of the election and to reform and modernise the law in line with international standards. The people of Nova Scotia deserve an accountable and open government. We hope that this election might include honest promises from the competing parties to deliver this to us.

For further information, please contact:

Michael Karanicolas
Senior Legal Officer
Centre for Law and Democracy
email: michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
Twitter: @law_democracy

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UNESCO, National Library and CLD host networking event for Jordanian information officers

Information officers from government ministries and public bodies in Jordan met today at the National Library in a networking event to foster debate around creating a “community of practice” for these officers. Under the patronage of HE Dr. Mohammed Al Momani, Minister of State for Media Affairs and government spokesperson, the networking event was a follow-up to the successful trainings on the implementation of the Access to Information (ATI) Law organised by UNESCO Amman Office, Centre for Law and Democracy (CLD) and Department of the National Library as part of the EU funded and UNESCO implemented “Support to Media in Jordan” Project.

Click here for the Arabic version of this Press Release
Click here for a Background Document on Professional Networks

The networking event was meant to serve as a forum for discussion and information sharing among information officers. Mr. Mohammed Abbadi, Information Commissioner and Director General of the Department of the National Library, reiterated that the Department was very happy to cooperate with UNESCO Amman Office and CLD in increasing awareness around the Access to Information Law, and to facilitate the event.

“Access to information is central to the 2030 Agenda and the promotion of the Sustainable Development Goals,” said Ms. Costanza Farina, Representative of UNESCO in Jordan at the event. “The right to access to information is intrinsically linked to democracy, the rule of law and good governance and therefore development, peace and stability. This is the reason why UNESCO is committed to support initiatives, like today’s networking event, that empower public bodies to implement the Access to Information Law properly and in full,” she added.

In a statement to UNESCO, HE Dr. Mohammad Momani confirmed the strong commitment of the government to provide a proper environment that enables the implementation of the ATI Law. This comes as part of the government’s work to advance freedoms in the country, and protect the rights of citizens and society inline with international examples and models.

“Freedom of expression and access to information are essential foundations of the European Union. In Jordan, we believe that effective implementation of the Access to Information Law will allow citizens to participate in key decisions that affect their lives. We are pleased to be supporting this initiative, and the Support to Media in Jordan project, to assist Jordanian information officials to share experiences and improve the flow of information in Jordan,” said Mr. Andrea Fontana, EU Ambassador to Jordan, in a statement to UNESCO.

The series of trainings on ATI implementation, which took place between January and March 2017, successfully reached out to all 60 information officials in every government Ministry and other public bodies in Jordan, as well as several journalists and local trainers from non-governmental organisations and other bodies who will be able to carry on future training. As part of the same project, UNESCO and CLD developed an ATI Training Manual, which is available in Arabic and English. On 17 May, UNESCO also organised a refresher training session for trainers to further elaborate on specific issues such as handling exceptions in the Law and dealing with information requests.

A team of international experts and local trainers ran the training workshops, during which the idea of establishing a network among trained information officers emerged.

“A professional network for information officers can provide a range of important benefits, including boosting common standards for implementation, providing opportunities for professional development and raising the profile of the right to information,” said Michael Karanicolas, Senior Legal Officer of CLD. “We are pleased that our programme in Jordan provided an opportunity to bring these specialists together, and look forward to working with them to continue to boost this important human right.”

Today’s event was part of UNESCO’s “Support to Media in Jordan” project, a comprehensive project aimed at supporting Jordan’s efforts in advancing the Jordanian media to further increase its freedom, independence and professionalism. The three-year project (2014 – 2017) is generously funded by the European Union and implemented by the UNESCO Amman office in close collaboration with the Minister of State for Media Affairs and the media community in Jordan.

For more information, please contact:

Michael Karanicolas
Senior Legal Officer
Centre for Law and Democracy
michael@law-democracy.org
Tel.: +1 902-448-5290
@Law_Democracy

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Canada: Civil Society Calls for Access to Information Law Reform

Today, over 50 Canadian civil society organisations and citizens sent a letter to Prime Minister Justin Trudeau asking him to renew the commitment of his government to reform Canada’s woefully outdated Access to Information Act. Notwithstanding strong pledges to amend the Act during the election campaign and afterwards, including in its 2016-2018 Open Government Partnership (OGP) action plan, the government announced two weeks ago that it was delaying the promised reforms.

Click here for the Letter

“The need for reform of the Act is clear and there have been broad debates and consultations about this for years”, said Toby Mendel, Executive Director of CLD. “It is now time to move forward decisively with concrete changes to the Act rather than making vague claims about needing more time.”

Canada languishes at 49th place out of 111 countries on the RTI Rating, the leading global methodology for assessing the strength of access to information or right to information laws. For decades, successive Information Commissioners, Parliamentary committees, civil society actors and independent experts have been calling for reform of the Act, while governments have refused to move forward on this important democratic issue. The commitment of the Trudeau government to reform the Act was, as a result, warmly welcomed by many across the country.

The letter calls on the government to make a clear and formal commitment to move forward with the reform process and to pass amendments at the very latest by the end of 2018.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431-3688
www.law-democracy.org
twitter: @law_democracy

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Mongolia: Draft Broadcasting Law Analysed

After many years of debate and numerous versions, the government of Mongolia has finally placed a draft Broadcasting Law before parliament. The Centre for Law and Democracy (CLD) welcomes this much needed initiative which provides an opportunity to set clear rules for the licensing of broadcasters, to create an independent regulatory body, to promote diversity in the airwaves and to establish a fair complaints system. While the draft Law achieves some of these goals, an Analysis released today by CLD shows that major revisions are still needed.

“Having worked on broadcast law reform in Mongolia for many years, I have to say that I am disappointed that the draft Broadcasting Law does not do more to address the needs”, said Toby Mendel, Executive Director of CLD. “It completely fails to transform the regulator into an independent body and does not mention community broadcasting even once.”

Click here for Analysis of the Draft Broadcasting Law
Click here for the Mongolian Draft Law

In addition to these problems, the Analysis highlights the following needs:
• A robustly independent body should be tasked with running the Development Fund for National Broadcasting, which will be used to promote diverse, quality content.
• Far more detailed rules on the licensing process, which should be required to be fair, transparent and participatory, should be included in the law.
• Instead of providing directly for content rules linked to harsh sanctions, the law should establish a proper complaints system, which includes the development of a code of conduct and rules for processing complaints.
• The whole system of sanctions should be revised and replaced with a set of graduated measures that allow for proportionate responses to breaches.

CLD calls on the government and parliament of Mongolia to take the necessary steps to revise the draft Law substantially to bring it into line with international standards.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431-3688
www.law-democracy.org
twitter: @law_democracy

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Gulf Between Civil-Common Law Countries on Openness of Court Decisions

There is a huge gulf between civil and common law countries on openness around court decisions, according to research conducted recently by the Centre for Law and Democracy (CLD). Working with its partner, the Institute for Development of Freedom of Information (IDFI), based in the country of Georgia, CLD has noted that while civil law jurisdictions often refuse to provide the names of parties to cases, on the grounds that this is a breach of their privacy, in common law countries the practice is normally the reverse.

“The European Court of Human Rights has never tackled this issue properly”, said Toby Mendel, Executive Director of CLD. “It thus remains an area of lack of clarity for many countries, especially those which are trying to bring themselves into line with European standards.”

CLD has prepared a paper on this issue, highlighting the contradictions and analysing the issue from a human rights perspective. The paper, which is cast as an initial foray into this complex issue, notes the overriding need to resolve the conflict between privacy and freedom of expression (and the included right to information) in this area. It also highlights the apparent contradiction between the strongly established principle of open justice and the idea of excluding names from cases, although it recognises that special considerations may be needed to take into account online distribution of cases. At a minimum, some sort of public interest balancing should be used to determine whether names remain on cases as they are distributed publicly.

Click here for the full paper. CLD welcomes comments and feedback on its paper.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431-3688
www.law-democracy.org
twitter: @law_democracy

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2017 Joint Declaration by Special Rapporteurs on “Fake News”

Today, in Vienna, the four specialised mandates tasked with promoting and protecting freedom of expression at the UN, OAS, OSCE and African Commission launched their 19th annual statement, the Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda. The Joint Declaration, which was drafted with the assistance of the Centre for Law and Democracy (CLD), addresses the difficult issue of how best to respond to the growing threat of disinformation, whether coming from governments, officials, the legacy media or social media.

Click here for Joint Declaration in Russian
Click here for Joint Declaration in English
Click here for Joint Declaration in Arabic
Click here for Joint Declaration in French

“The Joint Declaration clearly notes that it is illegitimate for State actors to disseminate information which they know to be false”, said Toby Mendel, Executive Director of CLD. “But blanket rules making it a crime for anyone to make a false statement are also not the answer.”

Instead of criminal prohibitions or other control-oriented measures, such as blocking websites or jamming broadcasting signals, the Joint Declaration calls on States to respond to disinformation and propaganda in the following ways:
• Promoting diverse and credible sources of news through both the legacy media and social media.
• Protecting intermediaries from liability for third party content.
• Promoting media and digital literacy.
• Disseminating reliable, trustworthy information themselves about matters of public interest.

The Joint Declaration also calls on intermediaries to limit any policies on content restrictions that go beyond what is legally required to measures that are based on “objectively justifiable criteria”, to ensure that any such policies are fully transparent in nature, and to apply those policies in a manner that respects basic due process guarantees. Finally, The Joint Declaration calls on the media to promote accuracy in the news through effective systems of self-regulation.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431-3688
www.law-democracy.org
twitter: @law_democracy

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Myanmar: Workshop on Key Freedom of Expression Issues

On 14 February 2017, UNESCO and the Centre for Law and Democracy (CLD) held a full-day workshop in the capital of Myanmar, Nay Pyi Taw, for officials from the Government, military and both upper and lower houses of Parliament (Pyithu Hluttaw and Amyotha Hluttaw), as well as the Parliamentary support body, the Commission for the Assessment of Legal Affairs and Special Issues. The focus of the workshop was on international standards relating to the right to information and broadcasting.

“It is important that key official stakeholders, and especially parliamentary bodies, have a good understanding of human rights standards in these areas”, said Toby Mendel, Executive Director of CLD. “We are hopeful that amendments to the Broadcasting Law and a draft right to information law will come before Parliament soon.”

“UNESCO has been working on these issues with a range of local stakeholders since 2012”, said Min Jeong Kim, Head of Office, UNESCO Myanmar. “Raising awareness about international standards in these areas is a core area of engagement for UNESCO, and we hope to be doing more of this in future.”

Discussions about a right to information law have been ongoing in Myanmar for some time now, including a debate on the matter before the Commission for the Assessment of Legal Affairs and Special Issues which also took place on 14 February, and which Mendel also attended. A strong Broadcasting Law was adopted in August 2105 but implementation has been stymied by the fact that the National Broadcasting Council, the main regulatory body, was not appointed within the six months envisaged in the Law, in part due to the change of government. Technical amendments to the Law are now needed to extend the six months and allow for the appointment of the Council.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431-3688
www.law-democracy.org
twitter: @law_democracy

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Sri Lanka Jumps to Third Place Globally on the RTI Rating

On 3 February 2017, just on the deadline for this, the government of Sri Lanka published a set of Regulations and Rules under the Right to Information Act in the Official Gazette. The combined effect of the Regulations (adopted by the Minister of Parliament Reforms and Mass Media) and the Rules (adopted by the oversight body, the Right to Information Commission) was to add a full ten points to Sri Lanka’s already strong score of 121 points out of a possible total of 150 on the RTI Rating. With its new score of 131 points, Sri Lanka boasts the third strongest legal framework for RTI in the world and the strongest in South Asia.

Click here to read Sri Lanka’s new RTI Regulations
Click here to read Sri Lanka’s RTI Law

“Countries often go up a few points on the RTI Rating when they adopt rules and regulations”, said Toby Mendel, Executive Director of CLD. “But this is a impressive jump up for a country which already had a very strong score so both the Minister and the Commission deserve to be congratulated for their good work.”

Some of the key improvements, from the RTI Rating perspective, introduced by the Regulations and Rules are as follows:
• Public authorities are required to transfer requests to other authorities where they do not hold requested information.
• The rules on fees have been clarified and are, for the most part, progressive.
• Clear rules on open reuse of information have been introduced.
• The power of the Commission to order public authorities to take structural measures to improve their general responses to requests has been clarified.
• Public authorities are obliged to provide training to their information officers.

Sri Lanka now faces the challenging task of implementing its strong legal framework for the right to information. CLD calls on the Ministry, public authorities and the Commission to ensure that this happens, and notes that it remains willing to provide support for this process.

The country scores on the RTI Rating are available at: http://www.rti-rating.org/country-data/.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431-3688
www.law-democracy.org
twitter: @law_democracy

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Malawi: Information Bill Aids Mining Communities

Malawi’s recently passed information bill could help communities affected by the extractive industries get information about related environmental, health, and safety risks, Human Rights Watch, Malawi’s Natural Resources Justice Network, and the Centre for Law and Democracy said today.

Malawi’s parliament adopted the bill with amendments on December 14, 2016. It was sent to President Peter Mutharika the week of January 16, 2017. It will enter into force once signed by the president and published in the official Gazette. The Malawian Natural Resources Justice Network has been advocating for more than a decade for access to information that helps communities make informed decisions and hold duty-bearers accountable in the extractive industries.

“The new law means that people in Malawi’s mining communities should be able to get vital information they need to protect their lives and livelihoods,” said Katharina Rall, researcher at Human Rights Watch. “The president should sign the law, and the government should act quickly to put it into effect.”

In a 2016 report, Human Rights Watch documented that families living near coal and uranium mining operations face serious problems with water, food, and housing, and that the families in the area have been left in the dark about health and other risks from nearby mining operations. Human Rights Watch found that Malawi lacks adequate safeguards to ensure that development efforts are always consistent with protecting the rights of local communities, and that weak government oversight and a lack of information leave local communities unprotected.

Residents in mining communities and non-governmental organizations in Malawi said that they could not get sufficient information about planned mining operations and any associated risks, fueling concerns about serious respiratory diseases, and other health and environmental impacts. The government told Human Rights Watch that it monitors the impact of mining but that it does not release the results to affected communities.

“Mining communities we work with applaud parliamentarians for passing the Access to Information Bill, which could also help push the government to release information about the oil and gas exploration around Lake Malawi,” said Kossam Munthali, Chair of the Natural Resources Justice Network. “Without information on the government’s position, civil society groups are unable to assess the potential risk that oil exploration poses to the lake and land or to engage on this issue.”

Since 2011, the government has awarded six petroleum exploration licenses, three of which cover the lake. Attorney General Kalekeni Kaphale expressed concerns over irregularities in the licensing and contracting process. Malawian non-governmental organizations have repeatedly asked the government for information about the status of the exploration and contracts but have not received a response.

In November, the Natural Resources Justice Network and Publish What You Pay Malawi, which represent the overwhelming majority of civil society organizations working on the extractives in Malawi, wrote to the UNESCO World Heritage Committee asking it to press the Malawi government to provide information to the public about the planned oil exploration in Lake Malawi National Park. The World Heritage Committee notified the Malawi government that it should comply with its obligation to submit its overdue progress report to UNESCO, that should include this information, by February 1, 2017.

The provisions of the new information bill, if adequately implemented, could ensure that Malawians would be able to request and obtain the information they need from all government authorities as guaranteed by the Constitution. An analysis by the Centre for Law and Democracy from February 2016 using the RTI Rating, a comparative tool for assessing the strength of right to information legislation, found that if passed, the law would be the 15th strongest in the world.

The bill states that the information law will prevail in cases of conflict with other legislation, preventing the government from citing other laws that prohibit disclosure of information, such as any current or future mining-related legislation. The bill also addresses concerns raised by Malawian non-governmental groups about previous drafts. The bill says that the Malawi Human Rights Commission, the national human rights institution, will handle the oversight and appeals function of the law. The bill tasks the commission with disseminating information about how citizens can claim their right to know and with carrying out monitoring and evaluation procedures.

“Among the most important components in a successful right to information system is effective and independent oversight,” said Michael Karanicolas, senior legal officer at the Centre for Law and Democracy. “Having allocated these crucial responsibilities to the Human Rights Commission, Malawi’s government should also make sure that the commission has additional resources and capacity, as required, to perform this role.”

Click here for CLD’s Analysis, from February 2016, of how the draft Access to Information Bill compares to similar legislation around the world

For more information, please contact:

In Lilongwe, Natural Resources Justice Network Secretariat: info@cfjmalawi.org.
In Karonga, Kossam Munthali (English, Chichewa, Chitumbuka): +265 888 51 02 59 (mobile); or kmunthali@focusmw.org.
In New York, Katharina Rall (English, German, French): +1-646-247-3503 (mobile); or rallk@hrw.org. Twitter: @katha_nina
In Halifax, Michael Karanicolas (English, Spanish): +1-902-448-5290 (mobile); michael@law-democracy.org. Twitter: @M_Karanicolas

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UNESCO, National Library and CLD launch series of trainings on implementation of ATI Law

Last week the first of several trainings on the implementation of the Access to Information (ATI) Law was held at the National Library in Amman. The first 3-day training session is one of five sessions being organized jointly by UNESCO Amman Office, Centre for Law and Democracy (CLD) and Department of the National Library as part of the EU funded and UNESCO implemented “Support to Media in Jordan” Project.

The trainings, taking place between January and March 2017, are targeting all 60 information officials in every government Ministry and other public bodies in Jordan, as well as several journalists and local trainers from non-governmental organizations and other bodies who will be able to carry on future training.

“UNESCO is pleased to be once again partnering with the National Library as well as the Centre for Law and Democracy on the ATI training. We hope that this training will help in mainstreaming the right to information in the Jordanian public service, and in turn improving the overall freedom of expression environment for not only media but all citizens in the country,” said Ms. Hanadi Gharaibeh, Associate Project Officer at UNESCO.

The trainings will cover topics such as the importance of the right to information, global trends, legal foundations including international law and the Jordanian legal framework, as well as issues such as proactive disclosure, how to process information requests and appeals, and how to interpret exceptions in the Law. The full UNESCO-CLD ATI Training Manual is available in Arabic and English on the Project website.

“For the first time in over 10 years, all of the information officials in Jordan will receive this sort of training. It is a huge step forward. But we also know that for a culture of disclosure to flourish, there needs to be a system of ongoing training for other public servants at each public body,” added Mr. Toby Mendel, Executive Director, CLD.

“The training is part of a joint cooperation with UNESCO to raise awareness of the law and it implementation among government officials responsible for providing the information [to the pubic] and liaisons officers in particular. This will lead to more transparency, and it is a tool for anti-corruption,” added Mr Mohammed Yonis Abbadi, Information Commissioner and Director General of Department of the National Library. He noted that most ministries and public bodies have assigned an information officer to liaise with the Information Council, and that information request forms are now available at most government bodies and on their websites.

“The training was very useful. At the Ministry of Health, we are glad to be part of this training and learn more about how to handle information requests,” noted Mr. Hatem Azrui, the spokesperson and information officer at the Ministry of Health.

For a photo gallery of the first training session, see here.

Background information:
UNESCO is known as the ”intellectual” agency of the United Nations. At a time when the world is looking for new ways to build peace and sustainable development, people must rely on the power of intelligence to innovate, expand their horizons and sustain the hope of a new humanism. UNESCO exists to bring this creative intelligence to life; for it is in the minds of men and women that the defences of peace and the conditions for sustainable development must be built. UNESCO’s mission in Jordan is to work with the government of Jordan and other stakeholders to provide effective high quality educational, scientific, cultural and communication programmes.

Centre for Law and Democracy (CLD) is a non-governmental organization based in Halifax, Canada that works to promote, protect and develop human rights which serve as the foundation for or underpin democracy, including the rights to freedom of expression, to vote and participate in governance, to access information and to freedom of assembly and association.

The Department of the National Library was established in 1977 as one of the departments of the Ministry of Culture. The department and the Center for Documents were merged into the National Library in 1994. Its main tasks include: keeping, organizing and introducing to the public the national intellectual product issued both inside and outside Jordan, collecting and keeping books, manuscripts, periodicals, photographs, recordings, videotapes, and other materials relevant to Jordanian heritage in particular, to the Arab world and to Arabic and Islamic civilization as well as to human heritage in general, as well as collecting government documents from ministries and public departments and institutions. The National Library provides logistical and administrative services to the Information Council and the Commissioner. According to the Access to Information Law, the Director of the National Library is the Information Commissioner and deputy of the President.

For more information, please contact:

Lidija Sabados (English)
Associate Project Officer, Support to Media in Jordan
UNESCO Amman Office
l.sabados@unesco.org
Tel.: +962 (6) 5929621 Ext 328
Mob.: +962 (7) 96830012

Dina Baslan (Arabic and English)
Coordinator, Centre for Law and Democracy
dina.baslan@gmail.com
Mob.: +962 (7) 77300069

Click here for the press release in Arabic

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Myanmar’s Digital Content Restrictions Violate Freedom of Expression

A workshop hosted by the Myanmar Media Lawyers’ Network (MMLN) and the Centre for Law and Democracy (CLD) on 21 January provided the setting for lawyers from across the country to agree that the Electronic Transactions Law and Telecommunications Law requires immediate reform. The discussion focused on the need to repeal the criminal defamation standards in the two laws (in sections 34(d) and 66(d), respectively), both of which have been used to imprison government critics.

Click here for a Background Paper on Digital Content Restrictions
Click here to read the Background Paper in Burmese

“Democracy is not just about holding elections, but is also about having a system which respects the fundamental rights of people, including to criticise their leaders,” said Michael Karanicolas, Senior Legal Officer, CLD. “These laws have no place in a democratic system, and should be scrapped to allow freedom of expression to take root.”

In addition to problematical criminal defamation rules, participants noted several technical problems with the laws, according to which individuals could be held liable for forwarding an email without the consent of its original author. The event feeds into a broader advocacy movement, including a major protest against the Telecommunications Law that took place on 22 January in Yangon.

“Myanmar’s legal community has an important role to play by pushing for reform of problematical laws, such as the Electronic Transactions Law and the Telecommunications Law,” said Than Zaw, Secretary of the Myanmar Media Lawyers’ Network.

For further information, please contact:

Michael Karanicolas
Senior Legal Officer
Centre for Law and Democracy
Email: michael@law-democracy.org
+1 902 448 5290
www.law-democracy.org
twitter: @law_democracy

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Joint Letter Regarding UNESCO’s Access to Information Policy

Irina Bokova
Director General
UNESCO

21 December 2016

Via email: i.bokova@unesco.org

CC:
Getachew Engida, Deputy Director General (g.engida@unesco.org)
Eric Falt, Assistant Director General for External Relations (e.falt@unesco.org)
Frank la Rue, Assistant Director General for Communication and Information (f.la-rue@unesco.org)

Dear Irina Bokova,

We are writing to you as organisations and individuals working on the right to information, i.e. the right to access information held by public bodies. This has been clearly recognised as a human right under international law, as well as in all three regional systems for human rights in Africa, the Americas and Europe.

We believe that, just as States need to adopt laws to give effect to this right, inter-governmental organisations (IGOs) also need to adopt right to information policies. This flows from the obligation of IGOs to respect human rights guarantees, as well as the benefits that flow from transparency, including building public trust, combating corruption and mismanagement, and fostering democratic engagement and accountability. We are, therefore, pleased to hear that UNESCO is currently developing an access to information policy. This follows developments at a number of other IGOs and is clearly better practice.

We would, at the same time, like to highlight the cardinal importance of engaging in genuine consultations with external stakeholders as part of the process of developing a policy in this area. Such consultations are important for a number of reasons, including to ensure that the final policy reflects the concerns of those for whose benefit it has been developed and to take advantage of the considerable expertise that exists globally on this issue. For such a consultation to be genuine, it must take place early enough in the policy development cycle for the comments received during the consultation to be reflected in the final policy.

We therefore urge UNESCO to release a draft version of its access to information policy as soon as possible rather than trying to reach consensus internally before releasing it, at which point the document would be unduly ‘fixed’ or final for the consultation to be genuine. We, in turn, commit to engaging fulsomely during the consultation process with a view to ensuring that the final policy is as robust as possible.

Yours sincerely,

Organisations

1. Access Info Europe, Spain
2. Access Now, United States
3. Access to Information Programme, Bulgaria
4. Advocacy Academy of Timisoara, Romania
5. Advocacy and Policy Institute, Cambodia
6. Africa Freedom of Information Centre, Uganda
7. AfroLeadership, Cameroon
8. Alianza Regional por la Libre Expresión e Información, the Americas
9. ARTICLE 19, United Kingdom
10. Asociación Nacional de la Prensa, ANP, Bolivia
11. Asociación por los Derechos Civiles, ADC, Argentina
12. Cainfo, Uruguay
13. Cameroon FOIA Coalition Voice
14. Campaign for Freedom of Information, United Kingdom
15. Carter Center, United States
16. Center for Independent Journalism, Romania
17. Centre for Democracy and Rule of Law, Ukraine
18. Centre for Law and Democracy, Canada
19. Centre for Media Freedom, Morocco
20. Centre for Peace and Development Initiatives, Pakistan
21. Citizens’ Campaign for Right to Information, Nepal
22. Code for Croatia
23. COLLECITF 24, Democratic Republic of Congo
24. Commonwealth Human Rights Initiative, India
25. DATA Uruguay
26. Directorio Legislativo, Argentina
27. Diritto Di Sapere, Italy
28. Espacio Público, Venezuela
29. Forum Informationsfreiheit, Austria
30. Foundation Open Society – Macedonia
31. Freedom Forum, Nepal
32. Freedom of Information Center, Armenia
33. Fundación Democracia sin Fronteras, Honduras
34. Fundación Violeta Barrios de Chamorro, Nicaragua
35. Fundamedios, Ecuador
36. Fundar, Mexico
37. Fusades, El Salvador
38. Global Forum for Media Development, Belgium
39. GONG, Croatia
40. Hungarian Civil Liberties Union/Társaság a Szabadságjogokért
41. Info House Slovenia
42. Institute for Research, Advocacy and Development, Pakistan
43. Instituto de Derecho y Economía Ambiental, IDEA, Paraguay
44. Integrity Action, United Kingdom
45. International Federation of Journalists
46. Lex Enterpreneur, Nigeria
47. Life Line to Citizen, India
48. Moroccan Access to Information Network
49. n-ost, Germany
50. National Campaign for People’s Right to Information, India
51. Open Knowledge Foundation Germany
52. Open Society Foundation, Serbia
53. Palestinian Center For Development & Media Freedoms, MADA, Palestine
54. Privacy and Access Council of Canada — Conseil du Canada de l’Accès et la vie Privée
55. PRO MEDIA, Macedonia
56. Research Initiatives, Bangladesh
57. Rocky Mountain Civil Liberties Association, Canada
58. Satark Nagrik Sangathan, India
59. Transparencia por Colombia, Colombia
60. Transparency International

Individuals

1. Muhammad Aftab Alam, Legal Expert, Media Law and RTI, Pakistan
2. Mukhtar Ahmad Ali, Information Commissioner Punjab, Pakistan
3. Linda Austere, RTI Activist
4. Staffan Dahllöf, Freelance Journalist, Denmark
5. Dr. Fatima Diallo, Academic, Senegal
6. Shushan Doydoyan, RTI Expert, Armenia
7. Said Essoulami, RTI Activist, Morocco
8. Francesca Fanucci, Lawyer – Consultant on Freedom of Expression, United Kingdom
9. Dr. David Goldberg, Director Project Forsskal, United Kingdom
10. Dwight Hines, Ph.D., United States
11. Thant Lwin Htoo, RTI Activist, Myanmar
12. Gabriela Edith Morales Martínez, Specialist on Access to Information and Accountability, Mexico
13. Lourdes Morales, Accountability Network, Mexico
14. Venkatesh Nayak, RTI Activist, India
15. Sharon Polsky MAPP, Privacy & Access-to-Information Advocate, Canada
16. Dr. Jeannine Relly, The University of Arizona, United States
17. Dr. Andrew Scott, Associate Professor, LSE, London
18. Yahia Shukkeir, Media Expert and RTI Activist, Jordan
19. Santosh Sigdel, RTI Activist, Nepal
20. Peter Timmins, Lawyer, Open and Shut, Australia
21. Professor Kalim Ullah, Khyber Pakhtunkhwa Right to Information Commission, Pakistan
22. Roger Vleugels, Legal Advisor and FOI Lecturer, the Netherlands
23. Dirk Voorhoof, Human Rights Centre, Ghent University, Belgium
24. Dr. Mark Weiler, Librarian, Wilfrid Laurier University, Canada

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Canada: Charity Rules Violate Freedom of Expression

Canada’s legal framework for charities is both outdated and unduly restrictive, a fact which became apparent when the regulator, the Canada Revenue Agency (CRA), launched a spate of charity audits a few years ago. The current Canadian government has signalled an intention to revise the rules in this area and, as part of that, the CRA is holding a consultation on the rules. CLD has provided a detailed Submission to that process, calling for extensive reforms.

Click here to read CLD’s Submission

“We very much welcome the fact that the government is committed to reviewing the rules governing charities”, said Toby Mendel, Executive Director of CLD. “As incredible as it might seem, the definition of a charity is based on an early 17th Century British law and charities are largely precluded from engaging in public policy debates.”

CLD’s key recommendations for reform include the following:
• A list of categories of charitable purposes, which is the main way of defining a charity, should be set out in legislation, following a public consultation, while the courts should retain the power to add additional categories.
• The absolute ban on direct support for political parties and candidates should be retained, but the ban on indirect support should be replaced by a more general requirement to be politically balanced and impartial.
• The strict limits on charities engaging in advocacy for a change in the law or policy, or a government decision should abolished. Instead, charities should only be required to devote most of their resources to activities which support their charitable purposes.

CLD calls on the relevant Canadian authorities to conduct a broad consultation on the rules governing charities and then to move to amend the rules in line with our recommendations above.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431-3688
www.law-democracy.org
twitter: @law_democracy

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Asian Infrastructure Bank: Access to Information Policy Weak

screen-shot-2016-12-05-at-9-09-38-amThe Centre for Law and Democracy (CLD) and the Bank Information Center (BIC) have jointly prepared Comments on the Public Information Interim Policy of the Asian Infrastructure Investment Bank (AIIB) in preparation for the first annual review of the Policy, due in January 2017. The analysis shows that the AIIB is lagging behind other international financial institutions (IFIs) when it comes to information disclosure.

Click here to read the Comments
Click here to read the AIIB’s Public Information Interim Policy

“It is positive that the AIIB adopted an Interim Policy on information soon after it was created”, said Toby Mendel, Executive Director of CLD. “But as we approach the first anniversary of that Policy it is time for the AIIB to significantly upgrade its commitments in this area.”

Some of the key problems with the Interim Policy, as outlined in the Comments, are:
• The scope of proactive publication commitments lags far behind better practice IFIs.
• The regime of exceptions is vastly overbroad, including many open-ended exceptions, lacking harm tests in many cases and failing to provide for any public interest override.
• The failure of the AIIB to adopt guidelines on implementation means that the Interim Policy lacks almost any procedural rules governing the processing of requests.
• Unlike many IFIs, there is no provision for an appeal to an independent oversight body.
• As a matter of practice, the AIIB has on at least some occasions failed to process requests for information.

CLD calls on AIIB to undertake a wide-ranging consultation on the Interim Policy as part of its first annual review and then to introduce major changes so as to bring the rules more into line with the practice of other IFIs.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431-3688
www.law-democracy.org
twitter: @law_democracy

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Myanmar: Workshops on Media Freedom and the Right to Information

imagesOver the past few days, the Centre for Law and Democracy (CLD), with support from International Media Support and FOJO Media Institute, hosted a series of workshops with its partners, the Myanmar Media Lawyers’ Network (MMLN), Pyi Gyi Khin (PGK), the Civil Society RTI Technical Working Group and the Myanmar Press Council (MPC). The workshops focused on the right to information and content restrictions in various Myanmar laws. The latter was particularly timely as senior representatives of the Eleven Media Group were taken into custody on allegations of having breached the defamation provisions in the 2013 Telecommunications Law while a CLD sponsored workshop on this was taking place.

“Myanmar has made significant progress in reforming its media laws,” said Toby Mendel, Executive Director of CLD. “But there is still an urgent need to reform the content restrictions in other laws and to adopt a right to information law.”

The workshops provided opportunities for legal experts, senior journalists, leading civil society organisations and members of the MPC to discuss the need for further law reform efforts. Article 66(d) of the 2013 Telecommunications Law, which criminalises not only defamation but also a range of other often vague types of statements disseminated via a “telecommunications network”, was a particular focus due not only to the current arrests but also because of the number of other cases which have been launched in recent months.

An ever increasing number of civil society groups are also embracing the idea that Myanmar needs to adopt a strong right to information law giving individuals a right to access information held by public bodies and generally making government more transparent. There has been little official action on this front since the Ministry of Information released a draft Right to Information Act in February 2016 and held a consultation on it the following month.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
toby@law-democracy.org
+1 902 431-3688
www.law-democracy.org
twitter: @law_democracy

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Recommendations for Improving the OGP Draft Co-creation Guidelines

8000097421_d3ae06e358_bThe Centre for Law and Democracy (CLD) has prepared a Note on the draft co-creation guidelines prepared by the Open Government Partnership (OGP). The draft guidelines aim to strengthen the OGP’s current consultation requirements. The Note recognises the importance of this objective and the contribution the draft guidelines make to achieving it, while also putting forward a number of recommendations to further strengthen the guidelines.

Click here to read the Note
Click here to read the draft co-creation guidelines

“We very much welcome this important initiative”, said Toby Mendel, Executive Director of CLD. “Consultation on the OGP national action plans remains far too weak in many OGP Participating Countries and further guidance from the OGP as to what is expected will be very useful. CLD has prepared this Note to try to help ensure that the final guidelines are as robust as possible.”

Some of the key recommendations in the CLD Note are as follows:
• The guidelines should be more inclusive in terms of key stakeholders and, in particular, not focus exclusively on civil society.
• Consideration should be given to using the three chronological phases of the national action plans (NAPs) as the primary organisational structure for the guidelines, because this is how activities are actually undertaken. Consideration should also be given to using ‘development’, ‘implementation/monitoring’ and ‘assessment/reporting’ as those three phases (rather than ‘development’, ‘implementation’ and ‘monitoring’).
• More attention is needed throughout the guidelines on the obligation of governments to engage a wide range of stakeholders in these processes.
• More thought needs to be given to the key question of the composition and role of the multi-stakeholder forum, in particular its role as a decision maker for NAPs.

CLD calls on the OGP to continue to improve the draft guidelines in accordance with these recommendations.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
toby@law-democracy.org
+1 902 431-3688
www.law-democracy.org
twitter: @law_democracy

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Intergovernmental Organisations and the Right to Information

mass emails logoThe Centre for Law and Democracy (CLD) has prepared a Submission on the applicability of the right to information to intergovernmental organisations (IGOs) in response to a call for input from the UN Special Rapporteur on the Right to Freedom of Opinion and Expression. The Submission argues that IGOs are bound to respect human rights, including RTI. Currently, relatively few IGOs outside of the international financial institutions have adopted policies on RTI, but they are coming under increasing pressure to do so.

Click here for the Submission

“IGOs are created and usually funded by States collectively, so they are bound to respect the right to information in the same way as bodies created and funded by individual States”, said Michael Karanicolas, Senior Legal Officer, CLD. “Furthermore, a strong right to information system also brings important benefits to these institutions, such as combating corruption and enhancing public trust.”

In addition to claims that IGOs are bound by RTI, the Submission provides an overview of some of the policies that have been implemented by international financial institutions and UN agencies. Based on existing practice and broadly recognised principles governing RTI, the Submission makes a number of recommendations for IGO policies, including:
• To establish clear and simple procedures for making and responding to requests.
• To define clear and specific exceptions to the right of access.
• To create effective oversight mechanisms, including independent appeals bodies.
• To put in place appropriate promotional measures, including a commitment to review the policy regularly.

For further information, please contact:

Michael Karanicolas
Senior Legal Officer
Centre for Law and Democracy
Email: michael@law-democracy.org
Tel: +1 902 448-5290
www.law-democracy.org
Twitter: @law_democracy

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Some legal reflections on Sri Lanka’s new Right to Information Act

(this piece originally ran in the Sunday Times)

On August 4, 2016, the Government of Sri Lanka passed the Right to Information (RTI) Act, No. 12 of 2016, bringing to fruition over 20 years of campaigning by journalists, civil society, legal professionals and others. The Act means that Sri Lanka has now joined the community of 112 countries globally which have adopted RTI laws. It also addresses the anomaly whereby Sri Lanka was the only major country in South Asia which did not have such a law (Bhutan still does not have one).

Sri Lanka did not just pass an RTI law; it passed a good one! According to the highly respected RTI Rating (www.rti-rating.org), the Act scores 121 points out of a possible total of 150, coming in ninth position globally out of the 111 countries which are assessed on the rating. It comes in second place in South Asia, behind India, a major success story in this area, with 128 points and in fourth place globally.

Congratulations are due to the Government, to the Parliament and especially to the many campaigners who fought tirelessly, especially in the final stretches, to make this happen. Now, the far more complicated task of implementing the law begins. Hopefully the same parties will contribute to that process to ensure that this process is also successful.

Some explanation as to how the RTI Rating works may be useful here. The rating is broken down into seven main thematic categories and then 61 individual indicators. The Sri Lankan law does best in terms of Scope of the Act (where it scores 90% of total possible points), due to its admirably broad coverage of information and public authorities;

It also scores high on Promotional Measures (88%), due to the obligations laid by the Act on public authorities to appoint information officers, maintain their records in good condition and report annually on implementation. Appeals score fairly well (87%), due to the creation of an independent and empowered oversight body in the form of the Information Commission. Right of Access garners an appreciable rating (83%), due to the constitutional guarantee of RTI adopted last year and a clear statement of the right in the Act itself. It may be noted that the Supreme Court of Sri Lanka specifically approved the composition of the commission in its determination relating to the Right to Information Bill.(S.C. (S.D.) No 22/2016).

The Act falters a bit, however, when it comes to Exceptions (77%). This is due in part to a few overbroad exceptions, specifically those in favour of communications between professionals, the privileges of Parliament and trade agreements.

Another problem is that a few exceptions – namely those in favour of information provided by a third party, contempt of court and cabinet memos – do not incorporate a harm test, i.e. they apply regardless of whether or not disclosure of the information would pose a risk of harm to a protected interest.

Some of these exceptions were considered, and upheld, by the Supreme Court in its Determination on the Bill. The court upheld the exception in favour of trade agreements on the basis that this was part of a wider notion of national security. Whatever the merits of this in terms of the Constitution, it must be noted that under international law, it is established that national security should be construed narrowly (absent which it has proven ripe for abuse). Clear standards on this may be found in the Tshwane Principles on National Security and Access to Information. The court also, with very little reasoning, upheld the exception in favour of contempt of court, after expanding it to include a reference to prejudice to the judiciary. The court failed to consider carefully the scope of contempt of court and the fact that it does not in all cases include a harm test.

The provisions in the Act on Requesting Procedures (73%) could also be improved. This is for example by requiring public authorities to transfer requests when another authority holds the information and by eliminating the 14-day period to provide information (on top of the 14 days public authorities are given to assess requests). Further The Act may have clarified what charges may be levied for providing information and recognised a right to reuse freely information which has been provided in response to a request. Finally, a score of only 50% is achieved in the area of Sanctions and Protections, due to the lack of sanctions for public authorities which systematically fail to respect their obligations under the law and the lack of protection for whistleblowers.

Some of these issues could be addressed through legal instruments adopted under the Act such as regulations adopted by the minister (in consultation with the Commission) or rules adopted directly by the Commission.

Regulations could, for example, clarify that the Act applies to both information and documents (to indicate that requesters might either ask for a type of information – the amount spent on transportation for ministers in a given year – or a document – the 2015 budget – which is not currently clear). They could also indicate that public authorities should transfer requests when this is warranted and that public authorities should provide training to their staff on this new right. Rules on open reuse of information could also be put in place via policy instruments. In many countries, for example, open licences which allow for such reuse are automatically appended to all government documents.

The Commission has the power to adopt rules on fees, which could make it clear that it is free to make requests, that charges may only be imposed for reproducing and sending information to a requester, and that poorer citizens do not have to pay even those fees. These measures alone would earn another three points on the RTI Rating, pushing Sri Lanka into sixth place globally. In setting rules on appeals, the Commission could also make it clear that these are free and do not require a lawyer.

Experience in other countries has shown that successful implementation of RTI laws is closely correlated with effective oversight bodies. It will, therefore, be important for the Commission to set clear rules regarding its own operations. Strong internal rules can be important to maintaining the independence and reputation of the Commission. For example, it would be good practice for the Commission to adopt rules on conflicts of interest for members, so as to avoid both actual conflicts and giving the public the impression that there is a conflict.
Sri Lanka has followed a practice which is common in South Asia, but relatively rare elsewhere in the world, namely of banning members of the Commission from “carrying on any business or pursuing any profession” (section 12(2)(a)(v)). Given the lack of clarity of this rule, despite its importance, it would be useful for the Commission to adopt rules elaborating on what it means.

The adoption of the RTI Act is an extremely exciting opportunity for Sri Lanka. In some countries, these laws have transformed the relationship between the government and the people, providing a platform for public participation, serving as a tool for official accountability and being used to expose and thereby combat corruption. In other countries, RTI laws have foundered against the immovable barriers of bureaucratic resistance, a lack of political will and disinterest on the part of the public.

What happens over the next few years will be crucial in determining the future of RTI in Sri Lanka. For the sake of democracy in the country, we can only hope this will be a transformative experience.

By Toby Mendel

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Pakistan: Federal Access to Information Bill Just ‘Average’

125px-Flag_of_Pakistan.svgThe Centre for Law and Democracy (CLD) has prepared a Note on the draft Right of Access to Information Act, 2016, which was prepared by the Standing Committee of Federal Cabinet for Disposal of Legislative Business of Pakistan. According to an assessment based on the RTI Rating, the draft receives 97 points out of a possible total of 150 points, putting it in 35th place globally out of the 111 laws assessed on the RTI Rating, below any other country in South Asia.

Click here for the Note
Click here for Part 1 of the draft Bill
Click here for Part 2 of the draft Bill
Click here for Part 3 of the draft Bill
Click here for Part 4 of the draft Bill
Click here for Part 5 of the draft Bill
Click here for Part 6 of the draft Bill
Click here for Part 7 of the draft Bill
Click here for Part 8 of the draft Bill
Click here for Part 9 of the draft Bill
Click here for Part 10 of the draft Bill
Click here for Part 11 of the draft Bill
Click here for Part 12 of the draft Bill
Click here for Part 13 of the draft Bill

“The right to information law currently in force in Pakistan is unacceptably weak and so any measure to improve it is somehow welcome”, said Toby Mendel, Executive Director of CLD. “But as the provinces of Khyber Pakhtunkhwa and Punjab have clearly demonstrated, Pakistan can do a lot better than this effort.”

Some of the key problems with the draft Act are:
• It is restricted to citizens and the scope of information covered is very limited.
• The rules fail to make it clear that it is free to make a request and that a certain number of pages of photocopies will be provided for free.
• There are duplicate regimes of exceptions and the one in section 7 is far too broad.
• There is no public interest override and third parties have a veto over the disclosure of information provided by them.
• The independence of the Information Commission could be further enhanced.

CLD calls on the Pakistani authorities to substantially improve the draft Act, to bring into more into line with the laws in force in the provinces of Khyber Pakhtunkhwa and Punjab.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431-3688
www.law-democracy.org
twitter: @law_democracy

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Sindh Province, Pakistan: Right to Information Law Analysed

Photo by King khurram, Wikipedia

Photo by King khurram, Wikipedia

The Centre for Law and Democracy (CLD) is today releasing its analysis of the Sindh province of Pakistan’s draft Transparency and Right to Information Act, 2016 (draft Act), prepared by the government of Sindh. CLD’s Note on the draft Act reveals that it is a reasonable draft, scoring 96 out of a possible 150 points on the RTI Rating, but that much could be done to bring it more fully into line with international standards. The RTI Act currently in force in Sindh is a carbon copy of the 2002 Federal Ordinance, which languishes in the bottom 20 percent of the RTI Rating.

Click here for CLD’s Note on the draft Act
Click here for a copy of the draft Act
Click here for the RTI Rating score

“We very much welcome the fact that the government of Sindh is reviewing its current, unacceptably weak, RTI law”, said Toby Mendel, Executive Director of CLD. “But given the excellent laws that have been adopted in Khyber Pakhtunkhwa and Punjab provinces, we are confident that Sindh can significantly improve this draft.”

Some of the key weaknesses in the draft Act are as follows:
• It has an insufficiently developed set of procedures for receiving and responding to requests.
• It includes a number of exceptions which are not recognised under international law, are too broad or lack harm tests, and the public interest override is not mandatory.
• The guarantees of the independence of the Information Commission could be improved and there is scope to increase its powers.
• There is no protection for whistleblowers.
• There is no obligation on individual public bodies to produce annual reports on what they have done to implement the law.

CLD urges the government of Sindh to introduce amendments to improve the draft Act so that the people of Sindh can benefit from comparable rights to information to those living in Khyber Pakhtunkhwa and Punjab provinces.

The RTI Rating is available at www.RTI-Rating.org.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431-3688
www.law-democracy.org
twitter: @law_democracy

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