Three years after conducting elections, the Maldives is on a path to participatory democracy by trying to finalise the Right to Information Bill, with the Bill under review by the Majlis Committee on Social Affairs. The Bill was drafted with inputs from civil society.
It’s a challenge for Maldives to implement Right to Information as a part of functional and participatory democracy. In general, both politicians and bureaucrats in Maldives accept that despite experiencing higher levels of human development compared to its neighbors in the South Asia region, the Maldives wasn’t an open society under 30-year long President Mamoon Abdul Gayoom’s administration. In a paradigm shift, the current President Mohamed Nasheed after being elected in the October 2008 general elections acknowledged that the previous administration was characterised by several examples of corruption and human rights abuses. Furthermore, the Maldives media was completely under the control of the government with little freedom for free and unbiased reporting until 2003. The right to freedom of speech and expression guaranteed by the then Constitution wasn’t in practice.
Earlier, the exercise of democratic reform initiated by Gayoom’s regime in its final years had given some meaning to the idea of freedom of expression. Censorship of the media was reduced considerably by the year 2006 which can be attributed to pressure from civil society and the opposition parties. However information from government bodies was disseminated by their public relations officers on a need to know basis only. The old Constitution did not contain any reference to the people’s right to information.
As part of the process of initiating democratic reform in 2007, the then Minister for Information and Legal Reforms drafted a Bill on the right to information. This Bill was closely modeled on the access laws of the Common Wealth countries such as United Kingdom and Canada. Article XIX an international resource organization on freedom of expression and access to information assisted the Government with drafting this Bill. The Bill could not pass muster in the People’s Majlis as it fell short of majority support by one vote.
Despite this debacle the Minister for Information and Legal Reforms took the initiative of converting the Bill into a set of regulations applicable to the executive only. The regulations were notified by Presidential decree on 03 May 2008 on the occasion of World Press Freedom Day. The objectives of the regulations were to: provide Maldivians with the right to access information held by government administrative specify the situations and conditions under which information shall not be disclosed.
The Government gave itself a lead time of eight months to prepare for the implementation of the regulations which were to become fully operational in January 2009. Under the regulations there was a provision to appoint an Information Commissioner to guide its implementation and adjudicate over access disputes. However by May 2008 the Civil Service Commission was created in order to shoulder the responsibility of recruiting and overseeing the civil service. The erstwhile Presidential function of recruiting people to the civil service was transferred to this Commission. The then Government took this step bowing to pressure from the opposition parties ahead of the Presidential elections. It is said that these procedural difficulties came in the way of the appointment of the Information Commissioner forthwith.
The new Constitution enacted in 2008 after the October 2008 elections guarantees not only the right to freedom of speech and expression but also the freedom to seek receive and impart information. Subsequently in November 2009 the Attorney General of Maldives tabled the Right to Information Bill 2009 in the People’s Majlis. This Bill is closely modeled on the existing RTI Regulations.
Challenges to Implementing RTI in the Maldives
Legislature challenge: As Maldives is presently undergoing a process of democratic consolidation the legislative agenda of the People’s Majlis is heavy and the law makers they will serve their purpose well if they acquaint with law-making and drafting legislatures. The RTI Bill is one of the important pieces of legislation waiting the approval of the Majlis.
Executive challenge: A large majority of the members of the bureaucracy continue to be unaware of the RTI Regulations. Further, the systematic challenges are compounded by the fact that government is going through a process of large scale restructuring, ministries and departments are being abolished and their duties and responsibilities reassigned to others. Instances of loss or misplacement of documents of the abolished offices during this transitional process are not rare. The existing departments will have difficulties when people start asking for information about the activities of the abolished offices. The communications system within executive is an obstacle in the infantry stages of the implementation of the RTI law.
The Maldives is currently engaged in the process of democratic consolidation and restructuring of government. Despite this onerous task the Government has placed transparency high on its agenda. The introduction of the RTI Bill in the People’s Majlis is the first step in fulfilling the MDP alliance’s electoral promise of transparency in the administration. Still the bill needs several major changes for it to be matched up to international standards. The bureaucracy also needs to be more efficient to provide people with access to information in real time. Mass awareness raising programmes must be initiated to educate Maldivian about their right to information and its responsible use. In this way, advocacy in the Maldives can be both top-down and down-top.
Meanwhile, civil society has also pitched in with effective changes to be made in the Maldives Right to Information Bill for effective implementation of the RTI. The recommendations on the bill made by the Commonwealth Human Rights Initiative would like to point out the following changes that are applicable at various places throughout the RTI Bill:
Gender sensitive language must be used: It is common practice in both developed and developing countries to use gender-sensitive language in the drafting of legislation.
Replace ‘records’ with ‘information’: The RTI Bill purports to provide access to people to the ‘records’ held by public authorities. However as the title of the Bill suggests it is a law intending to provide for the right to access ‘information’ and not merely ‘records’ which is a sub-category of the former.
In practice, the use of the word ‘record’ is much more limiting than the use of the term ‘information’. Providing access to “information” will mean that applicants will not be restricted to accessing only information that is already in the form of a hard copy record or document. The current formulation excludes access to materials such as scale models; samples of materials used in public works and information that may exist in disaggregate form in multiple records that may require compilation or collation. Replacing the term ‘records’ with the term ‘information’, unless otherwise required by the context is required.
Ensure stricter harm tests in the exemption clauses: Several exemptions clauses listed in the Bill have a lower threshold of harm test than what is considered as international best practice. The term ‘prejudice’ is used to define the harm caused to a protected interest if information is disclosed under specific circumstances [For example S27 (a), 28, 30]. ‘Prejudice’ is a vague term and is amenable to varied interpretation. Instead the phrase ‘serious harm’ is a much better usage as it requires that sound arguments and logic be put forth to refuse disclosure.
Public authorities must have a duty to confirm or deny possession of information: most of the clauses stipulating the circumstances in which information is exempt from disclosure do not place a duty on public authorities to confirm or deny the existence of a record in their possession. For example, S23 relating to personal information, S24 relating to protection of professional privilege, S25 relating to business affairs and trade secrets, S26 relating to health and safety, S28 relating to law enforcement, S29 relating to defence and security, S30 relating to economic interest, S31 relating to administration and formulation of policy and S32 relating to a Cabinet document all empower a public authority to refuse to confirm or deny the existence of a record in its possession.
This rider is characteristic of the second generation of access laws passed after World War II. The access laws of Canada, Australia passed in the 1980s and more recently the access law in UK contain such provisions. However several access laws belonging to the third generation enacted during the 1990s and later place an obligation on public authorities to confirm or deny the existence of a record. The change in international best practice is most welcome as the absence of an obligation to confirm or deny the existence of a record opens the path to commit a lot of mischief.
In conclusion, the implementation of the RTI in Maldives means that beginning of decentralization and participatory governance and a citizen-friendly orientation to government. This will help Maldives in effective nation-building and empowering citizens.
Venkatesh Nayak is Coordinator, Access to Information Programme and Balaji is Volunteer with Media Unit of Commonwealth Human Rights Initiative
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