Enhancing rights of citizens: Access to information
— SR BALGOPAL
Recent events have highlighted the need for access to information to be at the forefront of the agenda. The public at large has been exposed to the existence of the Official Secrets Act as well as the oath of secrecy that a Minister swears before assuming office. For the purposes of this article, we shall stay clear of the controversy surrounding the MedPoint Affair but shall refer to section 4 of the Official Secrets Act to illustrate how access to certain information is barred by legislation that dates back to 1972.
Section 4 of the Official Secrets Act reads:
“4 Reports of Cabinet proceedings
(1) Any person who in any manner publishes a report of, or a comment on, any matter and alleges, expressly or impliedly, that the report or comment, as the case may be, relates to what took place at a meeting of the Cabinet shall commit an offence and shall, on conviction, be liable to imprisonment for a term of not less than one month and not more than 12 months together with a fine not exceeding 2,000 rupees, unless he proves that the publication was made with lawful authority or as a result of information obtained from a person authorised to communicate it.
(2) Any person who in any manner publishes a document which purports to be, in whole or in part, a document which was submitted to the Cabinet or was or is intended to be submitted to the Cabinet by or on behalf of any Ministry or government department shall, unless he shows that he had obtained the prior authority in writing of the Secretary to the Cabinet to do so, commit an offence.
(3) Part XII of the Criminal Procedure Act and the Probation of Offenders Act shall not apply to prosecutions under this section.”
A reading of the above sections of the law illustrates how Cabinet proceedings are protected from public scrutiny. However, records of Ministries as well as minutes in official files are also subject to the Official Secrets Act and even public officers have to sign an undertaking that they will adhere to the provisions of the Official Secrets Act when they join the Civil Service. Whilst there are cogent public policy justifications to apply the veil of secrecy to some categories of information such as internal security of the country, diplomatic relations and information which by its nature is privileged, it can hardly be argued that there are valid reasons not to disclose information held by government departments.
The main justifications for the need to legislate in favour of facilitating access to information held by government departments are: the people who voted for the formation of democratically elected governments and contributed to the huge costs of financing public activities have so far no legal rights to know as to: what process has been followed in designing the policies affecting them, how the programmes have been implemented, who are the concerned officials associated with the decision making process and execution of the schemes and why the promises made for delivery of essential services to the poor have not been fulfilled? How can citizens therefore know whether those they have put in power are fulfilling their promises when they do not even have access to information pertaining to how the government programme is being implemented?
Lack of openness in the functioning of the government clearly provides a fertile ground for breeding inefficiency and lack of accountability in the working of the public authorities, which, in turn, perpetuates all forms of unchecked inefficiencies and wastages as set out in the successive reports of the Director of Audit.
A Freedom of Information Act or a Right to Information Act is an essential tool which will allow for greater probity in the functioning of government departments, transparency and accountability in the working of the public bodies and contain the scourge of corruption, which are critical for ensuring good governance. Important features of a Freedom of Information Act or Right to Information Act should, in our view, include, but not be limited to being, a framework to operationalise the fundamental right to information; to set up systems and mechanisms that facilitate people’s easy access to information; to promote transparency and accountability in governance; to minimize corruption and inefficiency in public offices and to ensure people’s participation in governance and decision making.
Furthermore, such legislation as set out above should also seek to enshrine the following:
(i) the right of the public to access information and the corresponding duty of the government to meet the request, unless specifically defined exemptions apply; and
(ii) the duty of the government to proactively provide certain key information even in absence of a request.
In the absence of a Right To Information legislation, the accountability of public authority is practically minimal. It follows that implementing such a legislation will go in the direction of improving public accountability of actions and decisions taken or that need to be taken as also to identify and remedy potential failings of the system. Where the people in general and civil society groups and non-governmental organisations (NGOs) in particular have a right or duty to demand for greater access to the information held by the public bodies and such access is provided for in legislative provisions, the system will act as a spur on governments to take actions as are necessary and essential for the good running of public services. There is no point counting on backbenchers or members of political parties to do the scrutiny as there are fundamental flaws in the Mauritian political landscape:
(a) Leaders of political parties control their parties as opposed to members of the Party having an element of control over their leaders;
(b) Members of political parties wallow in a deification of their leaders to the extent that it would appear that in Mauritius, only political leaders have brains or “vision”…
(c) All political parties are bedfellows and this makes it difficult for such parties to attack each other frontally. This leads to the situation where most of the time, only the tip of the iceberg is visible as political parties would all benefit from a “non-aggression” pact and what the public sees are most often minor skirmishes…
Our politicians often cite India (mainly for basely political reasons in their speeches) for having enacted a Freedom of Information Act. Maybe our local political class should be reminded of the words of the Indian Prime Minister when he introduced the Freedom of Information Bill in the Indian National Parliament on May 11, 2005:
“I believe that the passage of this Bill will see the dawn of a new era in our processes of governance, an era of performance and efficiency, an era which will ensure that benefits of growth flow to all sections of our people, an era which will eliminate the scourge of corruption, an era which will bring the common man’s concern to the heart of all processes of governance, an era which will truly fulfill the hopes of the founding fathers of our Republic.”
Open access to information affects everyone, every issue, and every aspect of daily life. It is indisputable that Freedom of Information is the foundation for an open system of governance in modern democracies. It is important to the healthy functioning of our society and will directly impact the quality of life of people residing in Mauritius, which is according to Article 1 of the Constitution, “a sovereign and democratic state”. Access to information will foster an open and participatory system of governance where the government, public and private institutions contribute to and benefit from healthier, more transparent collaborative governance.