FREEDOM OF EXPRESSION AND RIGHT TO INFORMATION
| Description: |
‘Freedom’ is the absence of control, interference and restriction.
|
|
Commissioner, Law commission of Sri Lanka
|
|
President SAARCLAW (Sri Lanka)
|
|
“Freedom” is the absence of control, interference and restriction. Thus freedom of Expression is the right to express one’s views, ideas, feelings and thought without control, interference or restriction from the state. Freedom of Expression by its very nature cannot be used to infringe on other universally accepted freedoms and rights (which are as important). Freedom of Expression therefore must be subject to well founded and universally accepted fetters, which are necessary to safeguard the rights of the individual of the state and of public interest.
|
|
The growth of representative democracy is the growth of the Freedom of Speech, Expression and the Press. President Jefferson of the United States in a letter to Carrington dated 16.01.1787 stated that ” If he had to choose between having a “Government without a newspaper on the one hand and “Newspaper without a Government” on the other hand, he would have no hesitation in preferring the latter. This thought had such an impact that it took root in the Constitution of the United States as the 1st Amendment in 1791. The 1st Amendment is as follows.
|
|
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
|
|
A democratic society is based on the norm that the views and ideas of the people on public questions are given effect to. This can be achieved if and only if there is a free debate and free exchange of ideas amongst the people. For there to be a collective decision after deliberations upon issues of public interest, there has to be an opportunity afforded for free exchange of views amongst the people, which in a representative democracy means the electorate and their representatives in parliament.
|
|
It is through free discussions and criticism that the government is made to be accountable and to be responsive to the will of the people. It is also through discussions that errors of government are peacefully considered and peaceful changes are effected, if this freedom is not there, the people will eventually act violently to overthrow the oppressive ruler.
|
|
Democracy is government by the people, through elected representatives. Thus elections are conducted and contested on public issues and policy. The people therefore must necessarily be permitted to discuss public issues and express their opinion and judgment on these issues.
|
|
The freedom of speech and expression however is subject to orders of public officers, laws enacted by the legislature and judgments pronounced by Courts. The people must nevertheless remain free to criticize,
|
|
(1) orders made by public officers,
|
|
(2) the policies involved in legislative measures, and
|
|
(3) the merits of judicial decisions, if they are to truly govern themselves. The State must protect this right subject to the duty of the state to interfere where the expression of free opinion and thought offends social interest, public morals, public order, religious freedom and when such criticism is in contempt of Court.
|
|
In Plato’s ‘Republic’ the State controls education literature, art, music, and even sports. In his “Republic” the citizens belong to the State.
|
|
In a Democracy freedom of expression is not confined to the freedom of speech, it includes the freedom to express ones feelings, ideas, emotions and thought without restriction. Thus literature, art, music, dance and fashion are all integral parts of an individual’s freedom of expression.
|
|
In a democracy unlike in Plato’s “Republic”, the state is only a means for the development of the potentialities of the individual citizen. He must be left alone to make his own inquiries as to knowledge. The State’s role is to facilitate such inquiry, subject to well known restrictions. The State should not dictate as to what an individual should read, write, wear or the manner in which he presents himself in public.
|
|
A democracy functions best when the people are well informed and are free to participate in public issues and have access to the widest choice of information and solutions to problems and issues that affect them.
|
|
The newspaper has from the 17th century become the foremost source of independent information. This is the reason why democratic societies have cherished and protected the freedom of the press and it’s independence. Therefore the press owes a duty to the people to publish news accurately without corrupting it to suit the views of it’s editor or it’s owners or only one of political party or political parties.
|
|
“Freedom of the press forecloses the State from assuming ‘a guardianship of the public mind’ “, (Thomas vs. Collins)1.
|
|
Authority is to be controlled by the public opinion, not public opinion by authority. West Virginia State Board vs. Barnett2
|
|
“The liberty of the press is indeed essential to the nature of a free State … the only plausible argument heretofore used for restraining the just freedom of the press, “that it was necessary to prevent the daily abuse of it”, will entirely loose its force, when it is shown . .. that the press cannot be abused to any bad purpose without incurring a suitable punishment: whereas it never can be used to any good one, when under the control of an inspector”
|
|
Development of the meaning of Freedom of the Press.
|
|
The following passages from Basu “Freedom of the Press” are reproduced, as they deal with the historical development of the freedom of the press lucidly.
|
|
“Historically, the origin of the concept of freedom of the Press took place in England. From the earliest times3, in the West, persecution for the expression of opinion even in matters relating to science or philosophy was resorted to by both the Church and
|
|
the State, presumably to suppress alleged heresy, corruption of the youth or sedition. Such restraints, through licensing and censorship, came to be accentuated after the invention of printing towards the latter part of the fifteenth century, and the appearance of newspapers in the seventeenth century,-which demonstrated how powerful the Press was as a medium of expression.
|
|
Shortly after their emergence, newspapers came to take up the cause of the Opposition against monarchical absolutism, which in turn, led to different methods of suppression.4 It is in protest against such governmental interference that freedom of the Press was built up in England. Opposition to governmental interference, which had been brewing on for some time, was supported by logical arguments by Milton in his now famous “THE AREOPAGITICA”. A note on The Areopagitica is set out in annexure 1 to my paper.
|
|
Certain excerpts from annexure 1 needs to be stated.
|
|
In 1644 the English poet and man of letters, John Milton, published a pamphlet called the Areopagitica as an appeal to Parliament to rescind their Licensing Order of June 16th, 1643. This order was designed to bring publishing under government control by creating a number of official censors to whom authors would submit their work for approval prior to having it published. Milton’s argument, in brief, was that precensorship of authors was little more than an excuse for state control of thought. Recognizing that some means of accountability was necessary to ensure that libellous or other illegal works were kept under control, Milton felt this could be achieved by ensuring the legal responsibility of printers and authors for the content of what they published.
|
|
Although the English had had some form of censorship since about 1530, Milton tried to shame Parliament into adopting his views by claiming it a product of the King’s Star Chamber, which so recently had been abolished (1641), and which had been the principal opponent of the Protestant Parliament. While the Licensing Order had as its official intent the restoration of the legal protection of the Stationer’s Company monopoly on printing, Milton saw as its byproduct the return of state control over publishing in general. His own experience in having to get his writings on divorce published without license, reinforced his views that a new dogmatic authority was replacing the old.
|
|
Milton’s words are just as powerful today in their call for freedom of thought as they were theirs. The issue
|
|
: is addressing is still with us: the debate between legitimate societal control and freedom – whether of printing, speech, or thought – is on-going, and will Continue to be of central importance in our media-spendent culture.
|
|
Mlilton’s Areopagitica was a protest addressed to the long Parliament which had taken up licensing, after the abolition of the Star Chamber. It was as a result of such agitation that the Licensing Act of 1662 was eventually refused to be renewed by the House of Commons, in 1694, though the reasons given were technical5
|
|
Annexure 2 gives a brief description of the Court of star Chamber which existed in England from 1487 to 1641.
|
|
The Court of Star Chamber was a court of law which evolved from meetings of the king’s royal council. Although its roots go back to the medieval period, the court only became powerful as a separate entity during the reign of Henry VII. In 1487 the court became a judicial body separate from the king’s council, with a mandate to hear petitions of redress.
|
|
Star – Chamber – The Facts
|
|
The Court of Star Chamber was named for the star pattern painted on the ceiling of the room at Westminster Palace where its meetings were held.
|
|
In a sense the court was a supervisory body
|
|
The mandate of the court expanded under the Tudors to include instances of public disorder. Judges would receive petitions involving property rights, public corruption, trade and government administration, and disputes arising from land enclosures. Although the court was initially a court of appeal, Henry VIII and his councillors Wolsey and Cranmer encouraged plaintiffs to bring their cases directly to the Star Chamber, bypassing the lower courts entirely.
|
|
Although the court could order torture, prison, and fines, it did not have the power to impose the death sentence. Under the Tudors Star Chamber sessions were public.
|
|
The power of the court of Star Chamber grew considerably under the Stuarts, and by the time of
|
|
Charles I it had become a byword for misuse and abuse of power by the king and his circle. James I and his son Charles used the court to examine cases of sedition, which, in practice, meant that the court could be used to suppress opposition to royal policies. It became used to try nobles too powerful to be brought to trial in the lower courts. Court sessions were held in secret, with no right of appeal, and punishment was swift and severe to any enemy of the crown.
|
|
Charles I used the Court of Star Chamber as a sort of Parliamentary substitute during the years 1628-40, when he refused to call Parliament.
|
|
Finally, in 1641 the Long Parliament abolished the hated Star Chamber, though its name survives still to designate arbitrary, secretive proceedings in opposition to personal rights and liberty. The history of freedom of the Press, in England, is thus a triumph of the people against the power of the licensor.67
|
|
In the oft-quoted words of Dicey, it simply means that”writers in the Press . . . stand in substantially the same position as letter writers …”
|
|
“The right to write or say anything which a jury, consisting of twelve shopkeepers, thinks it expedient should be said or written “,
|
|
Dicey also quoted Lord Mansfield’s statement in the , Dean of St. Asaph’s case-8
|
|
“The liberty of the press consists in printing without any previous license, subject to the consequences of law “,
|
|
“No such thing is known with us as a license to print, or a censorship either of the press or political newspapers. “
|
|
In other words, freedom of the Press, in England, means the right to print and publish anything which is not prohibited by law or made an offence, such as sedition, contempt of court, obscenity, defamation, blasphemy.
|
|
This negative perspective was nicely expressed by the French commentator De Lolme:
|
|
“Liberty of the press consists in this: that neither courts of justice, nor any other judges whatever, a authorized to take notice of writings intended for the press, but are confined to those which are actually printed. “
|
|
The reason why ‘prior restraint’ was obnoxious but not subsequent punishment was explained by Blackstone thus:
|
|
Any form of prior restraint is a fetter on the free-will of the people and an attempt to control the liberty of expression by administrative authorities. A subsequent punishment does not put any restraint on the freedom of thought or expression
|
|
To the foregoing list of restrictions on the freedom of the Press, additions have been made by statutes passed since the days of Blackstone, on grounds of official secrets and public order.
|
|
The net result is that the freedom of the Press, in England, is measured by the freedom to write anything, provided the law is not infringed. Since the constitutionality of any law made by Parliament cannot be questioned, eventually freedom of the Press is nothing but the residue left after Parliamentary regulation. Whether an elected Parliament will enact any law which would deprive the Press of its freedom or substantially encroach upon it, would depend upon the working of the democratic system, which is beyond the purview of this work on law. “
|
|
This then was the basis on which “Freedom of the Press” was looked at by all democratic States. The state cannot restrict the press from publishing anything they want. But if they publish what is prohibited by law then they will be punished. The threat of punishment was to act as a deterrent and not as a prohibition.
|
|
In the United States, the 1st Amendment which in effect stated that “Congress shall make no law abridging the freedom of press” is expressed in a negative form imposing a prohibition upon legislative power.
|
|
However in 1941 Black J in Bridges vs. California 10stated as follows,
|
|
“No purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression . . . than the people of Great Britain had ever enjoyed… the only conclusion supported by history is that the unqualified prohibitions laid down by the farmers were intended to give to liberty of the press, as to other liberties, the broadest scope that could be countenanced in an orderly society.
|
|
This principle that “prior restraint” was obnoxious but not subsequent punishment as laid down by Blackstone afforded only limited protection.
|
|
Cooley (Constitution limitations 11 XII 883) stated that prohibition or previous restraint, was not sufficient and that subsequent punishment might also be unacceptable, unless it was subject to constitutional limitations.
|
|
“. . . liberty of the press might be rendered a mockery and a delusion … if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications.”
|
|
Punishment can, therefore, be constitutionally permissible only where the publication offends against some social interest which it is legitimate for the State to protect, e.g., security of the State, obscenity and the like and if the restriction imposed is in conformity with the requirements of ‘due process’.
|
|
Similar views were expressed in
|
|
Bigelow v. Virginia 11 Curtis Pub. Co. v. Butts 12, Miami Herald v. Tornillo 13
|
|
In Sri Lanka freedom of expression is guaranteed under the Constitution.
|
|
10. Every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice.
|
|
14 (1) Every citizen is entitled to-
|
|
(a) the freedom of speech and expression including publication
|
|
However certain (acceptable) restrictions are imposed on Article 14(1)(a) by Article 15(2)
|
|
15 (2) The exercise and operation of the fundamental right declared and recognized by Article 14(1) (a) shall be subject to such restrictions as may be prescribed by law in the interests of racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation or incitement to an offence.
|
|
No restrictions are set out in the Constitution in respect of Article 10.
|
|
The restrictions set out in Articles 15(2) should be interpreted so as to be compatible with Article 29(3) of the Universal Declarations of Human Rights Article 29 (2) reads as follows:
|
|
(I) Everyone has duties to the community in which alone the free and full development of his personality is possible.
|
|
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
|
|
(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
|
|
The restrictions placed on the Freedom of Speech and Expressions are based on the same principles that support Freedom of Speech and Expression. The freedom of expression must be reconciled with the collective interest of the people and of society, i.e, of public interest.
|
|
Thus “the restrictions that may be prescribed by law ” under Article 15(2) must be such that they are for the sole and strict purpose of securing due recognition and respect for the rights and freedom of the individual and for giving effect to the just requirements of morality, public order, the protection of the state and the greater public interest.
|
|
In Schering Chemicals v. Falkman 16 Lord Denning dealt with these two competing interest as follows:
|
|
“The freedom of the press is extolled as one of the great bulwarks of liberty. It is entrenched in the constitutions of the world. But it is often misunderstood … It does not mean that the press is free to ruin a reputation or to break a confidence or to pollute the course of justice or to do anything that is unlawful. . .
|
|
It means that there is to be no censorship. No restraint should be placed on the press as to what they should publish: Not by a licensing system. Not by executive direction, Nor by court injunction. It means that the press is to be free from what Blackstone calls ‘previous restraint’ or what our friends in the United States call ‘prior restraint’. The press is not’ to be restrained in advance
|
|
It can publish whatever it chooses to publish. But it does so at its own risk . . . Afterwards, after the publication, if the press has done anything unlawful they can be dealt with by the courts. If they should offend by interfering with the course of justice they can be punished in proceedings for contempt of court. If they should damage the reputation of innocent people . . . they may be made liable in damages . . .”
|
|
Frankfurter J in Pennekamp v. Florida 17 states “Freedom comes with its responsibility even for the press
|
|
In Nebraska Press Asso. v. Stuart18 it was stated,
|
|
“The extraordinary protections afforded by the 1st Amendment carry with them something in the nature of a fiduciary a duty widely acknowledged but not always observed by editors and publishers”
|
|
The responsibility is based on the presumption that society has other interest to safeguard and maintain apart from the freedom of expression.
|
|
In Victor Ivan v. Sarath N. Silva, Attorney-General & Another 19, the petitioner Victor Ivan, Editor of Ravaya Newspaper, complained that the Attorney-General and/or his officers had indiscriminately, arbitrarily and for collateral purposes without proper assessment of the facts indicted the petitioner in the High Courts with several offences of criminal defamation in breach of the petitioner’s rights guaranteed by Article 12 (1) and 14 (1) (g) of the Constitution.
|
|
In the course of the judgment His Lordships Justice Mark Fernando stated
|
|
“I do not think that a newspaper enjoys any greater privilege of speech, expression and publication, or immunity from prosecution, than the ordinary citizen. The freedom of the press is not a distinct fundamental right, but is part of the freedom of speech and expression, including publication, which Article 14 (1) (a) has entrenched for everyone alike. It surely does allow the pen of the journalist to be used as a mighty sword to rip open the facades which hide misconduct and corruption, but it is a two-edged
|
|
weapon which he must wield with care not to wound the innocent while exposing the guilty. As Shakespeare put it:
|
|
“O! it is excellent To have a giant’s strength, But it is tyrannous, To use it like a giant. ” (Measure for Measure, II, ii, 107)
|
|
I cannot accept the submission that the Attorney-General’s decision to indict a newspaper editor must be scrutinized with any greater strictness than a similar decision to indict any other citizen. “
|
|
The State is entitled to punish those who abuse this freedom by publication, tending to (1) corrupt public morals, … (2) to promote crime or (3) disturb the peace. There is no freedom which can endanger the foundations of organized government and threaten its overthrow by harmful means. There is no freedom to cause private injury Gitlow v. N. Y.20
|
|
It is also necessary to protect a person’s reputation from publications made without responsibility. The damage caused by libel and defamation is irreparable. In Respublica vs. Oswald 21 McKean CJ stated as follows:
|
|
“With respect to the heart of the libeler, it is more dark and base than that of the assassin, or than his who commits a midnight arson. It is true that I may never discover the wretch who has burned my house, or set fire to my barn
|
|
“* the true liberty of the press is amply secured by permitting every man to publish his opinion
|
|
defame. To the latter description it is impossible that any good Government should afford protection and impunity.”
|
|
Article 10 (2) of the European Convention on Human Rights reads thus,
|
|
‘The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
|
|
The Constitution of West Germany expressly lays down what it means by, ‘abuse’ of a freedom guaranteed by that Constitution and what would be the penalty therefore. Article 18 says- –
|
|
“Whoever abuses freedom of expression of opinion, in particular freedom of the press (Art. 5(1)), … in order to attack the democratic basic order, forfeits these basic rights. The forfeiture and its extent are pronounced by the Federal Constitutional Court.”
|
|
Basu “Freedom of the Press” sets out the avenues of abuse of freedom of the press as follows, (pages 42 -44)
|
|
(a) The foremost danger is that since the Press is a most potent instrument of mass communication, newspapers are sought to be used by powerful parties and financial groups or even individuals having vested interests, for purposes of ‘propaganda’, i.e., to further their private interests to the detriment of the public, as a result of which the Press, instead of creating a free market of ideas’, tends to become an instrument for suppression of views, and an agency of monopolistic control of even news and reports.
|
|
(b) The basic assumption that freedom of the Press is indispensable to offer to the public all points of view involved in public issues and to give a truthful account of events so that the reader may freely form his considered view on each issue is defeated if
|
|
every newspaper gives a biased or coloured report of news and advocates only one of the solutions, namely, that advocated by the party or group which conducts that newspaper (e.g., either for or against socialism, as a solution of the nation’s economic problems). In such a case, the reader must read all the newspapers to get the proper and comprehensive materials for his choice or determination.
|
|
It is, therefore, essential that even where a newspaper is conducted by a political party, its report of news must be truthful and unbiased, and if its views are those of a particular party, it should say so, instead of trying to influence the reader unawares.
|
|
(c) The greatest source of abuse of the modern Press is the fact that, originating as an instrument of free discussion in a democracy, it has largely become a handmaid of commercial propaganda. Writing in 1942, Prof. Barker observed-
|
|
“The Press has been largely removed from the realm of politics to that of business: business methods, involving mass-production of commodities which are immediately and superficially attractive, have been applied to the newspaper
|
|
(d) Impelled by such commercial motive, most newspapers have to indulge in stunts, such as blackmailing, ‘Yellow-journalism’, horror-comics, intrusions into privacy, veiled pornography and the like, which have little value from the standpoint of democratic interests upon which rests the claim for freedom of the Press.
|
|
The problem arising from such commercial vices of newspapers is becoming more and more acute owing to the dependence of the masses on the dailies for information and entertainment and their helpless assumption that whatever is published in newspapers is authentic. *
|
|
(The common law remedy for Defamation and libel are available to every citizen against publication of defamatory statements in newspapers.
|
|
A discussion of the Law of Defamation does not come within the preview of this paper)
|
|
RIGHT TO RECEIVE INFORMATION
|
|
The freedom of expression of a citizen in every view necessarily includes the right to receive information without interference by public authority. The freedom of expression will not be affective unless it is complemented by the right to information.
|
|
Article 19 of the Universal Declaration of Human Rights
|
|
Everyone has the right to freedom of opinion expression
|
|
Article 10 (1) European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950
|
|
(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
|
|
The right to information is an essential ingredient of good governance. The three pillars on which good governance rests are transparency, accountability and access to information. In the absence of even of these pillars or even if one of them are weak, good governance seizes to be.
|
|
Accountability and transparency can only be tested and challenged if the public have free access to information. One must know the rationale and reasoning upon which an administrative decision was taken if such decision affects him. The Authority refusing such information must justify it on grounds laid down by law. However the right to
|
|
information is not available for the mere asking, it has to be restricted to persons who are affected by an order or decision of a public officer. Information cannot be sought by an inquisitive ‘busybody’ who is not affected. One cannot for example seek information as to why his neighbour was refused a building permit, or a liquor license.
|
|
In the absence of information the public will not be able to challenge decisions taken against them personally or in respect of matters of public interest which affect them as a member of the public.
|
|
In Sri Lanka there is no legislation which provides for “Freedom of Information”. There has been some doubts casts by the Supreme Court as to whether Article 14 (1) (a) of Our Constitution embodies within it the right to information. Fernando Vs. SRI LANKA BROADCASTING CORPORATION[SLBC] (1996) 1 SLR 157. Mr. R.K.W. Gunasekera in his work title “Fundamental Rights and the Constitution II – A Case Book” (page 271) in discussing the above case introduced it thus ” Freedom of Speech does not include right to information but can include a participatory listener’s right”.
|
|
In the above case the court did not accept the listeners rights to receive information from the SLBC. The decision was based on the right to equality and the right to information for the limited purpose of making his freedom of speech effective. The SLBC had a regular programme on the Non Formal Education Programme (NFEP) to which it invited guest speakers. In one particular programme the guest speaker attacked the petitioner. The petitioner’s position was that he should be treated equally with his attacker and therefore he was entitled to equal time to reply through the SLBC on the subsequent progamme. The SLBC terminated the programme thus depriving the petitioner of his right of reply in the exercise of his right to freedom of speech. It was stated that the right to reply was an exercise of his freedom of speech. Therefore to exercise his freedom he claimed the right to information in respect of the speech made by his opponent. He stated that this right entitled him to tape recording or transcript of the programme in which he was attacked.
|
|
It is in this context that the Supreme Court came to its decision. The court held that there is no right to information as such but that the right was ancillary to give effective meaning to the petitioner’s freedom of speech.
|
|
The decision of the court is reported as follows:
|
|
1. Article 14 (l)(a) of the Constitution is not to be interpreted narrowly. Not only does it include every form of expression, but its protection may be invoked in combination with other express guarantees (such as the right to equality)
|
|
photographs and the like and arguably it may even extend to a privilege not to be compelled to disclose sources of information, if that privilege is necessary to make the right to information “fully meaningful”. Likewise other rights may be needed to make the actual exercise of the freedom of speech effective: rights in respect of venues, amplifying devices, etc(Semble per Fernando, J. ” I doubt, however, that it includes the right to information simpliciter”
|
|
2. The freedom of speech of the petitioner, qua participatory listener has been infringed, because the stoppage of the NEEP prevented further participation by him.
|
|
The Law Commission after months of deliberations drafted ‘The Access to Official Information Act’, and submitted it for consideration by the Government, in 1996. Eight years have passed and nothing has happened.
|
|
The Law Commission recommendations were published in a report on ‘ A Survey of the Right to Information in South Asia – Sri Lanka’ by the Centre for Policy Alternatives. The recommendations were set out as annexure VIII to the report and are set out below.
|
|
1. The current administrative policy appears to be that all information in the possession of the government is secret unless there is good reason to allow public access. This policy is no longer acceptable in view of the reasons adduced above.
|
|
2. On the other hand, law reform which allowed for the principle that all information in the hands of the government should be accessible to the public unless there is good reason to make it secret would also be inappropriate.
|
|
3. The Commission feels, that while we should progressively advance towards the establishment of an open access to information regime at a future date, Sri Lanka should currently adopt a regime that clearly defined what information was secret and establish guidelines in respect of the exercise of discretion by government officials for giving access to other information.
|
|
4. The right of access to information in the custody, control or possession of government should be limited to those who are or are likely to be affected by decisions made
|
|
5. The Commission has also developed a number of exceptions under which information that might otherwise be accessed may be denied. These include the all important “defense and foreign policy” exceptions. Other exceptions include “privacy”, “law enforcement”, “finance and taxation “.
|
|
6. The draft Act provides for the Act to apply to all Government departments, corporations, statutory Boards, Provincial councils, Provincial Agencies and Local Authorities. However, the draft also provides for the Minister in charge of the subject of information to exempt an institution by Gazette notification, where such an exemption is necessary in the public interest
|
|
7. The Commission decided to recommend an enforcement regime that allows the Supreme . Court to review denials of access or inadequate access. However, where denial and restriction of access is due to the “intra-agency memoranda” exceptions, the Law Commission feels that a more informal review should be allowed through the Parliamentary Commissioner for Administration (Ombudsman) or other appropriate authority.
|
|
8. Much of the details have been, left to regulations making the rule making process more flexible arid readily adaptable to changing situations. Regulations will have to cover issues relating to fees for searching and copying, language of access, transfer of information requests, mandatory time limits for compliance, review procedures etc.
|
|
The right to information is vital for good governance as it is on this right that transparency and accountability is hinged.
|
|
One must know how and why decisions against him and decisions affecting the public at large are taken. The corresponding obligation to disclose information acts as a fetter against arbitrary and ill considered decisions and above all corruption.
|
|
2 (1942) 313 US 624 (p.641)
|
|
3 Thayer, Legal Control of the Press (1962), pp. 5-7
|
|
4 E.g., Royal proclamations, prohibitions, license and monopoly, decrees of the Star Chamber [see May, Constitutional History of England, Vol. II, Chap. IX
|
|
5 Vide Macaulay, History of England (1872), Vol. IV, p. 78.
|
|
6 Cf. Lovell v. Griffin, (1938) 303 U.S. 444 (451).
|
|
7 Dicey, Law of the Constitution, 10th Ed., p. 246
|
|
8 R. v. Dean of St. Asaph, (1784) 3 TR. 428.
|
|
10 (1941) 314 US. 454 (462)
|
|
11 (1975) 44 L Ed. 2nd 600
|
|
12 (1967) 388 U.S. 130(150)
|
|
14 (1946) 327 U.S. 146(158)
|
|
15 (1985) I.S.C.C. 641 (para. 97)
|
|
16 (1981) 2 AER 321 (330-34) CA.
|
|
17 (1946) 328 US 331 (356)
|
|
19 (1998) 1 SLR 340 20 (1925) 268 US 652 (677-80)
|
|
21 (1788) 1 Ball. 319(323)
|
|
* Substantial volume of material in respect of this paper was accessed from “The Freedom of the Press” by D. D- Basu. This note serves to acknowledge the same.
|
|
