Page 1


Overcoming information deficit

Visa free regime

Imtiaz Alam Secretary General SAFMA

1

Saarc Journalists Summit overview Sadaf Arshad Editor Publications

Saarc Journalists Summit Declaration Discussion Proposed Protocol on Free Movement of Media-persons and Media-products Across the South Asian Region

3 7 10

13 15

With SAFMA's initiative Khurshied Mehmood Kasuri Foreign Minister of Pakistan

Better South Asia M. Morshed Khan Foreign Minister of Bangladesh

18

Inaugural Session: Freedom of media and press laws

23

Sheikh Rashid Ahmad Information Minister of Pakistan

25

SAFMA does it M. Ziauddin President SAFMA Pakistan

26

Information and everyday democracy Rajeev Dhavan Senior lawyer, India

27

A bitter story I. A. Rehman Director HRCP

29

Journalists harassed Gokul Pokhrel Vice-President SAFMA, Nepal

30

Scope of freedom not determined

20

Supporting SAFMA Tyron Fernando Foreign Minister of Sri Lanka

22

Liberal visa for journalists

Creating South Asian information space Yashwant Sinha Minister for External Affairs of India

Dr. Bhekh Bahadur Thapa Minister-in-charge, Foreign Affairs of Nepal

Niresh Eliatamby Expert on media laws

31

Media divided

21

Iqbal Sobhan Chowdhury Vice-President SAFMA, Bangladesh

32


Discussion

33

Session-II: Right to know and access to information

K. K. Katyal President SAFMA India

44

PM Thapa supports Gopal Prasad Thapaliya President SAFMA Nepal

Not optimistic Syed Badrul Ahsan Assistant Editor, New Age Bangladesh

Not to be complacent

36

45

Train young journalists N. M. Ameen Organiser SAFMA Sri Lanka

46

Proposed Protocol (Law) on Freedom of Information for Saarc and its Member Countries

47

Glimpses

60

Our darling whistleblower Rajeev Dhavan Senior lawyer, India

37

Right to know not implemented Dr. Ram Krishna Timalsena Spokesperson of Supreme Court, Nepal

38

Information law that prohibits I. A. Rehman Director HRCP

40

New era? N. M. Ameen Organiser SAFMA, Sri Lanka

42

Session-III: Free movement of journalists and free flow of information

Central Secretariat SAFMA: 09-Lower Ground, Eden Heights, Jail Road, Lahore. Pakistan. Tel: 092-42-5879251/53; Fax: 092-42-5879254; E-mail: safma@hotmail.com; www.southasianmedia.net.

Through Saarc Reazuddin Ahmed President SAFMA

Edited by: Sadaf Arshad, Editor Publications Designed & Produced by: DESIGN 8 Published by: South Asian Free Media Association (SAFMA)

43


No enmity, all smiles AAhistoric foreign ministers ministers of of India Indiaand and historicmoment momentofofthe theSaarc SaarcJournalists JournalistsSummit Summitwhen when the the Secretary Secretary General General SAFMA, Imtiaz Alam, got the foreign Pakistan, Saarc Journalists Journalists Summit Summit ShriYashwant YashwantSinha Sinhaand andMian MianKhurshied KhurshiedMehmood Mehmood Kasuri Kasuri together together for a friendly handshake at the Saarc Pakistan,Shri


S

outh Asia, besides other shortcomings, suffers from an acute deficit of information. In an environment of suspicion, this deficit has turned into an ailment of paranoia. SAFMA was formed to overcome this gulf and it launched a campaign for free flow of and access to information, including free movement of media-persons and media-products across frontiers. SAFMA, in its Second South Asian Free Media Conference held at Kathmandu (January 1-2, 2002), had proposed a Protocol on: 'Free Movement of Media-persons and Media-products Across the South Asia Region' to the 11th Saarc Summit, held in Nepal on January 4-5, 2002. Up till the 12th Saarc Summit, SAFMA campaigned for two years and lobbied with the respective governments to allow a liberal visa regime. Hundreds of letters were written to all the concerned ministries and officials, but this issue could not be brought on the agenda of Saarc. The Saarc information ministers' addressed all kinds of proposals, but avoided this central link to the whole chain of free flow of information. Despite the positive signals from the political leadership in five countries of Saarc and intense efforts before the Islamabad Summit, this issue was again ignored. However, SAFMA's efforts climaxed with holding of Saarc Journalists Summit on 'Access to and Free Flow of Information' at Rawalpindi on January 3-4, 2004- a day before the 12th Saarc Summit. Media representatives from all countries of the region reiterated their demand for removing all barriers impeding free flow of and access to information with an emphasis on allowing unhindered movement of journalists and media-products across frontiers. The Journalists Summit also approved and proposed a draft law (protocol) on freedom of information for adoption by Saarc and the national legislatures. Thanks to the recommendations made by Pakistan Foreign Office and supported by the foreign ministries of India, Bangladesh, Nepal and Sri Lanka, it also demanded that SAFMA be recognised as an Apex Regional Media Body of Saarc.

1


SAFMA's efforts, it seemed, bore fruit when foreign ministers of Pakistan, India, Nepal, Sri Lanka and Bangladesh unequivocally supported its proposals and promised to remove hurdles in the way of free movement of journalists and mediaproducts while addressing the concluding session of the Journalists Summit. Foreign Minister of Pakistan, Mian Khurshied Mehmood Kasuri and Information Minister, Sheikh Rashid Ahmad both made a clear commitment to liberalise visa regime and encourage free flow of information. Taking a step further, External Affairs Minister of India, Shri Yashwant Sinha promised to take steps to ease Indian visa regime for the journalists immediately on his return to New Delhi and declared that SAFMA's protocol would be considered and a suitable mechanism on the freer movement of journalists and media-products would be adopted by the Saarc Council of Ministers meeting in July, 2004. Besides India and Pakistan, the Foreign Ministers of Sri Lanka, Tyron Fernando and Minister-in-charge of Foreign Affairs of Nepal, Dr Bhekh Bahadur Thapa asked others to emulate the example set by their countries in relaxing the visa regime. Foreign Minister of Bangladesh, M. Morshed Khan said that SAFMA's 'voice of knowledge and sanity should be heard and shared'. Such forceful endorsement by the five foreign ministers at the concluding session of the Saarc Journalists Summit has created a ray of hope that Saarc will adopt a mechanism that shall ensure free movement of journalists and media-products. In the meanwhile, SAFMA must continue to lobby for the acceptance of its two protocols and its recognition as an Apex Regional Media Body by Saarc. Thanks to its efforts, SAFMA has turned into a fraternity of South Asian media community which should be prepared to play a greater role in bringing peace, promoting cooperation and press freedom in our region. We can neither create any understanding, nor help resolve conflicts or promote economic cooperation in the region without overcoming information deficit among the countries of South Asia.

Imtiaz Alam Secretary General, SAFMA 2


Opening session in progress

deficit in the region, especially among the countries about one another, and “Access to and Free Flow of Information”. By Sadaf Arshad

F

ollowing an intense lobbying by SAFMA's national chapters for Protocol on free movement of journalists and media-products, the Central Secretariat timed the Saarc Journalists Summit two days ahead of 12th Saarc Summit to engage the foreign ministers from the member countries. The Journalists Summit, representing the media community in South Asia, focused on overcoming information 3

SAFMA had proposed its Protocol on “Free Movement of Media-persons and Media-products Across the South Asian Region” before the 11th Saarc Summit at Kathmandu that it reiterated its call to the 12th Saarc Summit and also proposed another Protocol on “Freedom of Information”. The agenda SAFMA set was to bring free flow of information and access to information on the agenda of the 12th Saarc Summit. On the theme of 'Access to and Free Flow of Information', leading media practitioners met on SAFMA's platform at Rawalpindi, on January, 3,-4, 2003. More than 130 journalists from all over the South Asia and around 100 observers attended the opening and concluding sessions of the conference.


Inaugural Session The conference started with the welcome address by M. Ziauddin, President SAFMA Pakistan, who evaluated the steps taken by SAFMA in promoting dialogue in the region. He invited attention to the need to have free flow of information and free movement of journalists while taking note of the restrictions enforced by the governments. The eminent journalists and experts on freedom of media and press laws in the Saarc countries presented papers. Rajeev Dhavan, an eminent lawyer and leading civil rights campaigner from India, was applauded by the house for his scholarly presentation. He thoroughly analysed and thrashed out the Official Secrets Act, Defamation Law and emphasised the need to have press freedom allowing greater room to day-to-day democracy. Identifying new threats to democracy and areas to struggle for, Shri Dhavan made a remarkable plea for vibrant media freedom I. A. Rehman, human rights activist and senior journalist, specifically analysed press laws and freedom of expression in Pakistan and the tale of prohibitive press laws that started with Press and Registration Act and Press Emergency Power's Act. He was of the view that people should not go by the laws but look at the practice which is very restrictive. Gokul Pokhrel, Vice-President Nepal Chapter, bringing forth the situation of freedom of media and press laws in Nepal, felt that media had undergone a change after the restoration of multiparty democracy in 1990 when the Constitution had guaranteed to the right to know, which was considered 'major watershed in the development of progressive press laws'. But, despite

the development of media, it remained under greater pressure in Nepal, he concluded. Niresh Eliatamby, from Sri Lanka, sounded hopeful while discussing the freedom of media and press laws in Sri Lanka. He said Freedom of Information Act had been proposed. But he cautioned that next few months could be crucial. Iqbal Sobhan Chowdhury, Editor Bangladesh Observer, shared the blame of restrictive press laws with the trading houses to curb freedom of the press. He was of the view that free flow of information, free movement of the print material and media-persons across the region could change the mind set created by the colonial legacy and the politicians. After these speakers critically evaluated the freedom of press and media laws in their respective countries, the house

Not on our establishments' prodding but on the call of our own conscience: Seema Mustafa pleads to push peace process forward as Mushtaq Soofi, Munno Bhai, Ruchita and Bandana watch

4


A view of Session-II, with Hameed Akhtar, Hussain Naqi, M. K. Dhar and Vinod Kumar Sharma in the front row

openly discussed all matters. H. K. Dua, Praful Bidwai, Vinod Kumar Sharma, Zahiduzzaman Faruque, Satnam Singh Manak, and Seema Mustafa chipped in and gave their input. Most speakers focused on the hijacking of media by the commercial houses and its vulgarisation for ends other than providing information. Seema Mustafa very staunchly criticised the nationalistic approach of Indian media regarding the peace and war issues as portrayed by the External Affairs Ministry. Information Minister of Pakistan, Sheikh Rashid Ahmad was the Chief Guest at the inaugural session and addressed the conference. He assured that any journalist recommended by SAFMA for visa will be free of restrictions. The minister assured the delegates that Pakistan supported SAFMA's proposal for free movement of journalists across frontiers. He also hosted a lunch for the delegates, observers and guests and held informal and frank conversation with the Indian journalists on the occasion. 5

Session-II: Right to know and access to information The second session commenced with the 'Proposed Protocol (Law) on Freedom of Information for Saarc and its member countries' presented by Reazuddin Ahmed, President of SAFMA. Again, the house was opened to discussion on the Protocol in detail. Eminent media-persons, such as Imtiaz Alam, I. A. Rehman, K. K. Katyal, and Iqbal Sobhan Chowdhury gave their arguments. Right to know in Bangladesh was well presented by Syed Badrul Ahsan who defined almost the whole situation how politics intervened in the working of journalists while keeping them away from sources of information and, resultantly, the right to access information by the people remained elusive. Rajeev Dhavan expounded laws again and forced to protect the whistleblower. Dr. Ram Krishna Timalsena while analysing the status of right to know in Nepal suggested some future strategies. Abbas Rashid read out his paper on

Delegates from Balochistan and Sindh in the mainstream


right to know in Pakistan, in which he discussed the Freedom of Information Ordinance with its drawbacks and recommended the changes required. N. M. Ameen, the Organiser of SAFMA Sri Lanka, presented his paper on the right to know in Sri Lanka and in detail discussed the state of media from initial stages till the implementation of so many laws that snatched the freedom of media. The high point of the conference was the presentation of the 'Saarc Journalists Summit Declaration' by M. Ziauddin, President SAFMA Pakistan. At the end of the session, the house had an open debate to reach a consensus on what SAFMA proposed. In the discussion, K. K. Katyal, Inayatullah, and Vinod Kumar Sharma made their points. Session-III: Free movement of journalists This session was more encouraging and eye catching where the five foreign ministers' attended the session and addressed the conference. Firstly, Tyron Fernando, Foreign Minister of Sri Lanka expressed his solidarity with SAFMA and mentioned the steps being taken in Sri Lanka for the freedom of media and making information accessible to people.

Mr Khurshied Mehmood Kasuri, Foreign Minister of Pakistan, assured SAFMA all his support for bringing people closer while declaring Pakistan's support for free flow of information and free movement of journalists across frontier. Mr M. Morshed Khan, Foreign Minister of Bangladesh, claimed proudly of having a level of freedom of journalism within the country which can be compared to any developed nation. He assured the audience that Bangladesh would support SAFMA's proposal to overcome the barriers in the way of free flow of information. Minister-in-charge, Foreign Affairs of Nepal, Bhekh Bahadur Thapa, shared the positive development and steps that Government of Nepal has taken while liberalising visa for all the South Asian countries. He expressed his optimism that steps like free travel across Saarc countries would eventually lead towards South Asian union. Setting a good example to follow, he called upon the governments of South Asia to liberalise their visa regimes for the journalist community. All the foreign ministers voiced good will and support for SAFMA's struggle for free flow of information and free movement of journalists, besides applauding it as a Saarc 's Apex Regional Body of Media. Others who made comments were the presidents of SAFMA chapters; Gopal Prasad Thapaliya, Nepal; N. M. Ameen, Organiser Sri Lanka; K. K. Katyal, India; M. Ziauddin, Pakistan and Reazuddin Ahmed, President of SAFMA. The Journalists Summit ended with an upbeat note for the media community in the region.

Shri Yashwant Sinha, Minister for External Affairs of India, announced the talks at the foreign ministers' level to be held in Islamabad in July and there they will also formalise an arrangement for the visa free movement of media persons within the Saarc region. He assured the journalists that, immediately on his return to Delhi, he will initiate measures to relax the visa Session-III: From another angle regime. 6


W

e the representatives and delegates, from both print and electronic media from member countries of Saarc, to the Saarc Journalists Summit of South Asian Free Media Association (SAFMA), having met in Rawalpindi on January 3, 2004, for a stock-taking of the current situation in the region in general, and the state of media freedom and media laws, the right to know and access to information in our countries and the free movement of media-persons and the free flow of information across the South Asian region, in particular; Reaffirming the principles inspiring the 'Joint (Founding) Statement', issued by the First South Asian Free Media Conference, 'Towards Free, Fair and Vibrant Media', at

Islamabad, on July 1-2, 2000, 'Declaration of Intent' of the Second South Asian Free Media Conference on 'Media and Peace', at Kathmandu, on January 1-2, 2002, and 'Dhaka Declaration' of the Third South Asian Free Media Conference on 'Media and Democracy', at Dhaka, on May 25-26, 2003; Reiterating our commitment to the right to know and freedom of expression, as recognised by the UN, being a “fundamental human right and the touchstone of all freedoms�, Article 19 of the International Covenant on Civil and Political Rights, as a basis for informed and authentic civil society and a pluralist democracy;

Declaration of the Saarc Journalists Summit being debated in the open hours 7


Convinced that the right to know and freedom of expression, access to and free flow of information ensure information as empowerment for many based on inclusion, as opposed to the 'need to know' based upon exclusion and as power for the few. It promotes awareness, transparency, protection and exercise of rights and empowerment of the people. These rights are vital to the capacity of media and the citizenry in tipping the balance in favour of human rights, human security, humane governance, participatory development, empowerment of the people and the hegemony of civil society through its freely expressed will, regardless of any distinction on the basis of belief, gender, social status, place of origin or residence; Emphasising the imperatives of the information revolution and the need to overcome information deficit among the member countries of Saarc, which is essential to create understanding, build confidence, promote cooperation and facilitate conflict resolution, and adoption of SAFMA's Proposed Protocol on 'Free Movement of Media-persons and Media-products Across the South Asian Region', proposed by the Second Free Media Conference, before the 11th Saarc Summit at Kathmandu, and its 'Proposed Protocol on Freedom of Information', proposed by Saarc Journalists Summit, before the 12th Saarc Summit, by Saarc and its member countries; Concerned about the delay in initiating an integrated, uninterruptible, inter-sector, composite and resultoriented process of negotiations and dialogue between governments in South Asia, particularly between India and Pakistan, who are both victims of terrorism, a continuing row between India and Bangladesh over the issues of economic immigration, water and security concerns, suspension of the peace process and negotiations between the LTTE and the Sri Lankan government, continuing plight of the Bhutanese refugees, the suspension of parliamentary process and of the negotiations with the Maoists in Nepal, the repeated violations of press freedom and victimisation of media-persons and propaganda warfare through war movies, demonising the other side of the conflicts, banning of or subtle exclusion of each other's television networks from showing on cable-networks by India and Pakistan, stigmatisation and marginalisation of the minorities in almost every country of South Asia and generally about the quality of governance and the pervasive corruption in the region;

Welcoming the wave of confidence-building, reconciliation and peace moves in the region and steps being taken by the governments to resolve their differences and disputes through peaceful means, and the proposals to widen and deepen economic cooperation between Saarc countries; Realising our duties as citizens and opinion-makers in the countries of South Asia to promote peace, eradicate terrorism and violence and religious extremism and communalism by both state and non-state actors, stabilise nuclear regime and non-proliferation of nuclear weapons, uphold freedom, democracy, pluralism, human rights, including rights of women, minorities and dispossessed, and create understanding, harmony and friendship among our people; Have agreed to adopt the following Saarc Journalists Summit Declaration on the eve of 12th Saarc Summit: That we call upon the people of South Asia, especially their governments, and the Saarc Secretariat, to adopt SAFMA's Proposed Protocol on ''Free Movement of Media-persons and Media-products Across the South Asian Region', and request the 12th Saarc Summit to, at least, include the following paragraph in the Declaration of 12th Saarc Summit: "Realising the need to respond to the imperatives of information revolution; recognising the urgency to overcome information deficit among the member countries about each other and; appreciating the initiative taken by the South Asian Free Media Association (SAFMA) to promote understanding, access to and free flow of information in the region; We the heads of government and state of the member countries of Saarc agree that: a) Leading mediapractitioners, to start with, shall be allowed free movement across our frontiers to perform their professional duties without a visa, as being practiced by certain other categories of our citizens, and a liberalised, countrywide, multiple-entry, five-year visa regime, without police reporting and bureaucratic delays, shall be instituted for media-persons with 10 years of credible experience or accreditation since 1990; b) Media-products, whether print or electronic, shall be 8


allowed free flow across our borders under a zero-duty regime and without restrictions with an objective to promote harmony, free flow of information and better understanding among the member countries; c) Facilitate by all possible means the citizens right to know and access to and free flow of information; d) Form a Special Committee on Media consisting of foreign/external, information and interior/home secretaries of the member countries, that shall, in consultation with media bodies, especially SAFMA, find a suitable mechanism to facilitate free movement of media practitioners and media products across frontiers by developing a consensus on a protocol; e) Will review the implementation of these guidelines on this issue at our 13th Saarc Summit." That, given the absence of an effective freedom of or access to information law in the countries of Saarc, and the need to ensure the people's right to know, we demand from all governments in South Asia to adopt SAFMA's 'Proposed Protocol on Freedom of Information' not only at the Saarc level, but also as a law by their legislatures. That, as a mainstream media body of the countries of South Asia, fulfilling all the prerequisites of becoming a Saarc Apex Regional Body, SAFMA legitimately deserves to be associated as a Saarc Apex Regional Media Body immediately in order to play its due role in strengthening the Saarc process and achieving its noble objectives. We call upon all the governments of South Asia to take the course of negotiations to resolve their interstate and intrastate conflicts and differences and respect human

Delegates from Bangladesh contributing to the debate 9

rights, including the rights of women and minorities, safeguard press freedom and stop the victimisation of media-persons and repeal all restrictive media laws. That, welcoming the holding of 12th Saarc Summit at Islamabad, we hope, and demand, that it agrees on the implementation of the guiding principles of South Asian Free Trade Area (SAFTA) while addressing some of the genuine concerns of the Least Developed Countries (LDCs) and take steps to make Saarc a really dynamic regional economic grouping. That, taking the lead, we the participants of this Saarc Journalists Summit and SAFMA call upon the people, intelligentsia, elected representatives, organisations of civil society and our own media fraternity to work together in bringing closer the dream of a South Asian Economic and Monetary Union, creation of a South Asian Collective Security System to ensure the sovereignty, independence and solidarity of each country, to divert resources from arms race and other non-productive heads to the eradication of poverty and development of human and physical infrastructure, and to jointly face the negative consequences of unilateralism and globalisation and for South Asia's genuine share in world trade and its respectable place among the groupings of nations. We further call upon the governments of South Asia to realise the aspirations of the people of the region for sound governance, transparency, accountability and strengthening of as well as the institutionalisation of democracy.


I. A. Rehman Director HRCP

C

onflicts within a country are not media issues, but they affect media performance. These issues are leading to the promulgation of laws which affect media freedom. They are introducing distortion in media coverage of day-to-day events. Our attention is focused on media issues but our concern is not confined to one country as far as issues like conflict or suspension of democracy are concerned. They can affect media in any country like Nepal and Sri Lanka. Iqbal Sobhan Chowdhury Vice-President SAFMA, Bangladesh We journalists as free men can always express our concerns regarding the peace process. The political systems are hindering free flow of information and also the peace process. It should be the part of this declaration. On page 7 in paragraphs 4 and 5 we call upon all the governments of South Asia to respect human rights including the rights of women and minorities, press freedom and an end to victimisation of journalists. This probably is in the spirit of expressing our concerns. But we can also call upon the governments to resolve bilateral or multilateral issues. There are two

Iqbal Sobhan Chowdhury argues in defence

parts; one is observation and the second is operative part. In the observation part we express our concerns but in the operative part we can avoid the possible controversy by not referring to the particular issues that have already been paraphrased on page 5. I believe, calling upon the governments in this way, we can avoid certain controversies and make our point more effective and reflective. K. K. Katyal President SAFMA, India The reference to the paragraph on India needs to be updated. The additional reference to the issues thrown up by The Hindu case and the threat to the freedom of expression by the notions of parliamentary privileges should be included as there is no codification of these privileges and that adds to the problem. There were two issues; one was to avoid all references to politically contentious issues so that we do not allow ourselves to get involved in politics. Second, we should confine our focus to media related issues. The suggestion was to delete all references to political issues both in the preamble and in the operative part. The other viewpoint was that we cannot divorce ourselves from the political context in which we operate. And as such a reference to the political problems and contentious issues is absolutely necessary. A committee was set up in which Dileep Padgaonkar and I. A. Rehman merged both the viewpoints. The paragraphs referring to 10


the specific political issues in the operative part have been deleted. But in the preamble, the reference to the specific political problems is there. So it is a compromise. Seema Mustafa Political Editor, Asian Age There have been instances like Jayalalitha attacking The Hindu newspaper and then we have the vicious attack by the state on the Tehelka website and the arrest of the innocent journalist, Iftikhar Gilanni. At one point, these cases are easier to handle because they unite the media and bring them out on streets. There are blatant acts of censorship and victimisation that expose the administration and state. Censorship is coming in a variety of ways but we are not able to fight it or detect it and are not even aware that it is happening. Because we are being caught into the system run by the state's stick and carrot policy and then by the business interests of the proprietors that have taken over the media in India. Media has become an extension of business. In India and Pakistan relations, national jingoism is marking the media reaction towards the question of peace, nuclearisation and war. These are issues in which media has usually taken an anti-peace position. Media was being encouraged by establishments in South Asia to support policies that promoted national hatred. Media is being manipulated and coerced. Our war constituencies are considered nationalistic, but peace constituencies are dubbed as anti-national. Over the last fifty years you can take the record of media that treats India-Pakistan relations in line with the government that says Pakistan is an enemy. Any journalist who tries to keep his head above the murky waters is targeted and all this is happening in the democratic India today. You have to be courageous because of the backing of your newspaper organisation, but your organisation has already been compromised because of its business interests with the state. It is not possible for a working journalist to fight for peace while relying on his/her own 11

courage. It would be very important for SAFMA to also build a charter for media, which is not only about the rights of media but also takes a position on what we believe to be the right for a journalist. National interests at any given time cannot be determined by the government in power but by the citizens of that country. Unfortunately, national interests are being determined today by whatever dispensation comes to power in the capital and media is being compelled, forced and coerced to take a position on this kind of jingoistic nationalism that might be detrimental to the interests of the country and to that of free media. As the establishment changes track and takes the peace root, media changes the tone as well. How long will we remain so and not become independent of our establishments? Inayatullah Columnist, The News There is a reference in the preamble to specific issues like immigration, water and security concerns in Bangladesh and India in paragraph 6. But in case of India and Pakistan relations, no specific issue has been mentioned. There is a lack of consistency. There is a mention of leading media practitioners with 15 years of credible experience in the Summit declaration. But the period mentioned for the free movement of journalists in the protocol, is 10 years. So there is an inconsistency between the two statements. The paragraph 6 welcomes the implementation of SAFTA and says at the same time that steps should be taken to make Saarc a really dynamic, regional and economic grouping, but without the domination of one country over the other. The addition of these words has raised a very important issue that has not been fully dealt with.


Paragraph 7 recommends that we should work together for bringing the South Asian economic and monitory union closer. This is an idea that has come up recently. The need is to support the idea immediately and it needs a nationwide discussion. I support the idea but the wording should undergo some change. We should make a general statement. Vinod Kumar Sharma Gen. Secretary SAFMA, India Accreditation by the government does not make a journalist eminent. The definition of a journalist with a credible experience could be very relative. Dileep Padgaonkar Executive Editor, The Times of India The first SAFMA meeting focused very sharply on the professional media issues. This is the second time when you are again focusing on professional media issues. My submission is: Have we also included certain political matters? Because our focus is on what inhibits the free flow of information in the region and the barriers in the way of accessing information. The second paragraph on page 6 is well drafted because it does not go into specifics of bilateral issues. This conference is based on particular media issues, media laws, and flow of information.

emergency and that should be rectified on page 5 and 7. Our main concern is to include concerns about the negation of peace process between the government and Maoists in Nepal. Imtiaz Alam Secretary General SAFMA There is a tendency among some delegates to avoid political context while others feel reluctant in deviating from official positions on pivotal issues. This is at variance with SAFMA's positions enshrined in its declarations and it will not help us promote our agenda for peace through media collaboration. It is right that we should focus on media issues in this conference, but it is wrong to ignore the greater political context while great developments are on the anvil in the next few days. The tendency to make SAFMA avoid its responsibilities as peace maker and become a tail of our foreign offices will be disastrous. The delegates should be more willing to accommodate, rather than dictate.

Bandana Rana President, Women's Reporter's group, Nepal All the concerns that we have raised in the Kathmandu, Dhaka and in this conference leave an impact on the media and free flow of information among journalists. Now Nepal is not under a state of

MP Sherry Rehman, Shafqat Mehmood and High commissioner of Sri Lanka

Not backbenchers as it may seem

12


W

e the heads of state and government of the member countries of the South Asian Association for Regional Cooperation (Saarc) having held extensive deliberations on the imperatives of information revolution, the needs to promote free flow of and access to information and the hindrances in the ways of free flow of information among our nations at the 12th Summit Meeting of the Saarc at Islamabad, Pakistan: Appreciating an ever-increasing demand to benefit from the worldwide information revolution and ever-growing free flow of information in all fields for the betterment of our peoples, enrichment of their tremendous potentials and the overall progress of the South Asian region;

cooperation in our region; Noting the multiple hindrances at various levels, both tariff and non-tariff, to the free flow of and access to information and free movement of media persons and media products across the borders of the member countries; and

Realising the greater need to allow free flow of and access to information, including the free movement of media-persons and media-products, such as newspapers, magazines, electronically-transmitted features/stories/news, across the borders of the member countries of South Asian Association for Regional Cooperation (Saarc);

Acknowledging our obligation under the international covenants and other instruments that recognise exchange of information in any form across frontiers as a basic human right that each member state shall: 1. Promote, as far as possible, free flow of and access to information within the region in the best interest of our peoples, economic growth of our countries and mutually beneficial cooperation at both bilateral and regional levels;

Taking into account the aspirations of our peoples to know the world and our own region, requirements of development of our countries and an all-sided

2. Remove all impediments to free flow of and access to information for good-

Recognising the imperative of free flow of information for better understanding among our countries and peoples about one another and promoting mutually beneficial economic and cultural cooperation at both bilateral and regional levels;

Nepalese, Sri Lankan and Pakistani delegates engaged in deliberations

13


governance, better understanding of each other and the urgently needed progress of the region in all fields; 3. Eradicate all non-tariff barriers to free movement of media-persons and, to begin with, those with ten years of recognised professional standing, and media-products, including newspapers, magazines, periodicals, books, cassettes, videos, soft-wares, electronically-transmitted features/stories/news, etc.; 4. Facilitate the grant of multiple-entry five-year or single-entry Gratis visas of country-wide validity, that are free from police reporting, and are granted within a week of applying to the duly accredited professional media-persons of ten years of recognised professional standing while removing tedious processes of security clearance and bureaucratic delays; 5. Harmonise and bring all tariffs in conformity with zero-duty regime on all media-products, including newspapers, magazines, periodicals, books,

M. B. Naqvi and other participants

cassettes, videos, soft-wares and electronically-transmitted features/stories/news, etc.; 6. Allow bureau-offices or representation, with full rights and necessary protection, to the recognised newspapers, periodicals, magazines, news agencies, publishers and television networks from any member state, that will be staffed by the media persons of ten-year of professional standing; 7. Encourage professional collaboration among the media, media-bodies, media-training and mass-communication institutions, in both private and public sectors; 8. Form a Consultative Media Body, consisting of the representatives of media persons, media bodies and media ministries in member countries; 9. Monitor progress on the lifting of all barriers in the information sphere and implementation of this Protocol through a Saarc Committee on Information, consisting of Information Ministers, or their representatives, of the member countries; 10. Review the progress on the implementation of this Protocol at the 13th Saarc Summit Meeting. (To be) Signed: 1. The Prime Minister of the People's Republic of Bangladesh; 2. The Prime Minister of the Royal Government of Bhutan; 3. The Prime Minister of the Republic of India; 4. The President of the Republic of Maldives; 5. The Prime Minister of the Kingdom of Nepal; 6. The President of the Islamic Republic of Pakistan; 7. The President of the Democratic Socialist Republic of Sri Lanka;

14


As Shri Yashwant Sinha addresses, Maulana Fazalur Rehman, General Secretary MMA; Mr. Shashank, External Affairs, Secretary of India and K. K. Katyal share the podium with others

I

n the three years since its inception, SAFMA has gathered the reputation of being a forum that can think ahead of political developments. It has created an intellectual space that reflects media solidarity as well as strong commitment to universalism and peaceful cooperation. I am therefore extremely happy to have this opportunity to share my views with members of SAFMA. I extend my special compliments to SAFMA and to all distinguished participants for holding these deliberations on the sidelines of the Saarc Summit. This reflects not only a great sense of occasion but also a correct judgement of the mood generated by the upswing in people-to-people contacts within our region. It is a matter of no small significance that this forum has chosen for its deliberations the theme of access to and free flow of information. These are concepts that are as pertinent today as they are complex. They are also issues that need to be squarely addressed by each of our societies and by the region as a whole because they extend to the core of regional cooperation in its widest sense. India will support whole-heartedly any arrangement that is made for mediapersons in Saarc countries to travel in the region either with a liberal visa or 15

without the need for a visa. I suggest we adopt in our respective countries a liberal visa regime for the movement of media-persons, the moment we go back to our capitals. And when we meet in the Council of Foreign Ministers in Pakistan in July, we should formalise an arrangement for the visa-free movement of media-persons within Saarc. We have made a new beginning here in Islamabad. I have therefore absolutely no hesitation in saying that winds of change are blowing in the Saarc region. I have no doubt in my mind that after what we are done on the 6th of this month, we will be beginning a new phase in our relationship. I am not merely talking of the relationship between India and Pakistan but between all the seven countries of Saarc. If we can do it at our level, there is no reason why SAFMA will not be able to achieve the same thing at the level of media-persons. I appeal to you to aid and assist in this process. Let's leave the


Charming the two foreign ministers to get close: Secretary General SAFMA, Imtiaz Alam, with Mr. Yashwant Sinha and Foreign Minister Khurshied Kasuri

suspicions and the baggage of history behind us. Let's make a great and promising beginning. Given the history, politics and diversity of this region, careful thought has to be given to not only how we communicate with each other but also to what we communicate. In this situation, the medium itself often becomes the message. It will help no one in this region or for that matter anywhere else, if we communicate narrowmindedness, dogmatism, paranoia, and hostility. That would be an abuse of the call for access to and free flow of information. This is where forums like SAFMA assume critical importance. They provide an opportunity for close interaction between media-persons of different countries, diverse cultures and asymmetric societies. Meetings such as this can be an occasion for soulsearching by all of us. Has the medium

realised the tremendous extent of power it wields? Our region is a great contributor to the communication revolution, the process that doubles global computing power every eighteen months. Our people are in the vanguard of this revolution, helping the world solve its problems. Surely some of this energy can be channelised to solve the problems that we face in South Asia and to remove the information deficit that is so evident. These are clearly long term issues that require thought and sustained work. Yet, we must all find reassurance in the fact that there are several positive factors working in favour of the objectives of SAFMA. The overwhelming and spontaneous desire of the people of our region to live in friendship and peace are a few among these. Friends! I am aware of the difficulties involved in making access to and free flow of information a reality. There are differences in the politics of our countries and in our cultural sensibilities. There are legal issues to be addressed and harmonised. There is also the historical baggage of distrust. We all agree on the need to free the movement of media and media-products within the region. But we hesitate when it actually comes to implementing supportive measures. The biggest non-tariff barrier we encounter in this process is the suspicion in our minds. Trust me, we are not protecting our respective economic interests by these unfounded apprehensions. We are not threatening our respective cultures. We are only limiting opportunities for better understanding amongst ourselves, for our growth. 16


In the 21st century, information cannot be confined within national boundaries. This is a reality we must accept. Today, insatiable public demand, propelled by the process of globalisation and rapidly advancing technology, is rendering ineffective all barriers to the free flow of information. Moreover, the imposition of such restrictions on the free flow of media-products is, in effect, a means of dis-empowering the already marginalised poor. The poor cannot access the internet while the rich can. So, all we achieve is to deprive the already deprived. Such restrictions are also amount to encouragement for violations of intellectuals property rights because all they achieve is growth in piracy of various media products. India is a country that is completely open to the flow of media-products from outside, except for some unavoidable reciprocal restrictions. Sadly, we are also a society about which ignorance abounds even within our immediate neighbourhood. We are also target of disinformation, propaganda and false type casting. People are often surprised to learn that India has the second largest Muslim population in the world. They are unaware that around 150 million people who profess the great faith of Islam live and thrive in India. I wonder, is it that a persistent barrage of propaganda turns even the biggest untruths into popular belief? Let me use this occasion to issue a fervent appeal to Pakistan and Bangladesh, the only two Governments of Saarc, who continue to restrict the free flow of media-products into their countries. Please consider a change in your policies. Indian newspapers, magazines, music, films and televisions are not going to undermine your 17

societies. Let us break down these artificial walls. The time has come to end this self-defeating approach. South Asia must rise above such short sightedness. In the past, the melodies of Rafi and Noorjehan and the poetry of Tagore and Kazi Nazrul Islam wafted across our frontiers to a common heartbeat. Let us not, so much later in the day, still hinder one from enjoying another's creativity, or joining with the other to find fresh and inspiring expressions. Let us have the courage to recognise the extremely important role that the media can play in leading the people of our region onto the path of peace and prosperity. In fact, I would strongly recommend that we decide and start working, in a short-term framework, towards the goal of a South Asian Common Information Space. Let our understanding at the popular levels be further deepened, to create fresh synergies for cooperation and addressing differences. I am also aware of the specific demand of SAFMA for the free movement of media-persons. This is an issue close to the heart of India. It is an absolute shame that the doyens of our media find it impossible to visit each other freely and travel across the length and breadth of our countries. There is a crying need for redressal of this situation. Some arrangement, as has been made for the leaders of our business and industry, can certainly be explored for media-persons as well. The Information Ministers of Saarc countries are currently engaged in these issues and will, I am sure, come out with satisfactory results soon. Let me assure you that India will be fully supportive of rapid progress towards implementation of a liberal regime of visas for media-persons of the region.

Is Bangladesh Foreign Minister, M. Morshed Khan, lobbying with Sinha on the concerns of LDCs regarding SAFTA?


Khurshied Mehmood Kasuri Foreign Minister of Pakistan

O

n behalf of the Government of Pakistan and on my own behalf, as Chairman of Council of Ministers of Saarc, I thank the organisers of the Saarc Journalists Summit for the opportunity to speak to you today. South Asian Free Media Association undoubtedly is a representative mainstream media body of the region, working for understanding, regional cooperation and free flow of and access to information, besides upholding the right to know and right to expression and principles inspiring various declarations of SAFMA's South Asian Free Media Conferences. I have been supportive of the efforts of SAFMA in this regard and I am appreciative of its tireless endeavours to promote understanding and goodwill among the peoples of South Asia. The challenge before the media consists of envisioning an alternate future for the region, a future that looks beyond the existing atmosphere of mistrust and perception, a future that breaks through the shackles of historical experience and reflects the true aspirations and hopes of the people of the region, a future that is built on the foundations of a durable peace in the region rather than one in which the search for peace remains an elusive quest. The challenge becomes more daunting because it is axiomatic that durable peace can only be based on principles of justice and equity. I, for one, believe that we must look to the intellectuals and media-persons to help us define the contours of this vision

As Maulana Fazalur Rehman, MMA leader watches, Mr. Kasuri makes his address as Chief Guest

for the future because what we need is a fresh way of looking at old issues and finding innovative ways to move forward. The media in our region I hope is poised to play a crucial role in breaking the cycle of mistrust and antagonism in the region by breaking down the existing stereo-types, and helping to build bridges of understanding and tolerance. This can only be done if the media decides to choose the path of celebrating diversity rather than divisions. Such change in focus would herald a paradigm shift in the way we perceive ourselves and others in the region. In this regard, we can learn something from the European experience where centuries of conflict fell by the wayside in a process that culminated in the triumph of the values of pluralism, democracy and the promotion and protection of human rights. The challenge before us is to reach a similar level of amity without being forced to learn these lessons through a trial of fire and cataclysmic conflict. Tolerance and the celebration of diversity is also the key to dealing with the challenge of globalisation as a vehicle to universalise a single brand of culture and paint the world in monochrome. It is a far more effective antidote to the negative side of globalisation than attempting to shut out the world outside or take refuge in anger. The South Asian region faces very grave challenges. Poverty, malnutrition and underdevelopment still stalk the region. Too many people die due to lack of access of clean water and basic health facilities. As responsible members of the ever-growing, vibrant civil society, the media has a special responsibility to highlight these problems and make a positive contribution to finding workable and innovative solutions to these problems. I would once again emphasise that the key to realising the media's full 18


potential as an agent of positive change is credibility, particularly in the eyes of the public. The concept of credibility takes on a very different meaning when seen in the context of media-products that are aimed at the entire regional audience rather than at consumers in any one particular country. While, in principle, we support free movement of media-persons and media-products, the danger highlighted above needs serious consideration. A regional media firmly grounded in a tradition of freedom and objectivity and able to look beyond the prism of narrow nationalism should be the desired aim. The question that needs to be asked is whether the media-products are driven by the same compulsions of profit and loss as other commercial ventures? If so, how can we prevent those with greater financial clout and enjoying greater economies of scale from drowning out the smaller, independent voices? How can we guarantee that the media does not become a tool of political power in the interaction within the regional states? I do not have a definitive answer to either of these questions. What comes to mind immediately is that the larger aim of free movement of media-products across frontiers and contradictions likely to arise in this process can be overcome speedily only by making credibility and sensitivity, both cultural and political, the corner-stone of the regional media edifice. The people of this region have a vision, of a peaceful and prosperous South Asia where we accept each other as sovereign equals in our quest for peace and prosperity. We seek the resolution of all outstanding issues including Jammu and Kashmir through a peaceful process of dialogue and constructive engagement. The expansion of people to people links through increased exchanges could play a role in building an environment of understanding and confidence between the two countries. A serious and scrupulous introspection

With SAFMA he (Kasuri) stands

19

is necessary to determine a wise course for the future of the people of Pakistan and India. Let us address all the outstanding issues with courage and statesmanship, which have so far impeded progress so that we can move towards a cooperative future for the people of the two countries. Let's make this a really historic conference. Let's hope that the enthusiasm that it has generated will lead to an atmosphere of mutual trust and that in turn will enable both India and Pakistan to try and grapple with issues that have defied solutions for a very long time. I would like to assure you once again Mr Imtiaz Alam, Secretary General SAFMA, and other office-bearers that the Ministry of Foreign Affairs would support your endeavours for free movement of journalists and free flow of information across frontiers. I believe that you have performed an excellent role in bringing people of this region closer. We support the Protocol you have presented today.


In May 2003 I had the opportunity of meeting some of the very distinguished leaders of SAFMA in its Dhaka moot. It is a great encouragement for foreign ministers when they interact with the journalists to create a better understanding in the region. Whatever we do, the package part of our image-building is done by the media. Unless we join hands and work together for a common cause, forgetting our conflicts, we would not be able to change the destiny of South Asian people. Hiding facts from the media is equivalent to hiding from the nation. I believe in total transparency. The job of the media is to give awareness to the people of what is going on. When the visas are open to the officials of Saarc countries these should also be given to the journalists. The Islamabad Summit is a milestone in the history of Saarc. We are today talking about South Asian Free Trade Area (SAFTA). Other areas also need to be addressed. Under SAFTA, we have to discuss the visa regime, financial regime, food banks and the health regime. I am committed to multilateralism. Seven of us definitely can do better in future global trade negotiations. Let one negative area not impede the process of cooperation in so many positive areas. Our attitude is very positive.

O

ur government has enacted a very comprehensive law to ensure freedom of press. I think Bangladesh today has achieved a level of freedom of journalism that can be compared to any developed country.

Morshed Khan being presented conference papers by the Secretary General SAFMA as Mr. Kasuri applauds

If we cannot come to an understanding on some conflicts then at least we can pick up those issues on which we would like to move forward. We have our own limitations towards media but let's proceed with the positive. SAFMA is a unique organisation and the cream of society in an island of illiteracy. SAFMA is the voice of knowledge and sanity that should be heard and shared. Let's all unite together to create a better South Asia.

Sharing the podium with Bhekh Bahadur Thapa, Minister incharge of Nepal

20


Tyron Fernando Foreign Minister of Sri Lanka

W

e are fully in agreement with SAFMA's proposal regarding exemption from visa and freedom to travel across the borders for mediapersons. I will certainly be taking it up as a necessary step towards regional cooperation. I am very happy with the title of this conference, 'Access to and Free Flow of Information'. This is the need of the hour. I am the pioneer of private electronic media in Sri Lanka. Our cabinet has agreed on Freedom of Information Act and it will be passed very soon by the Parliament. Our people will be allowed to access official information. The public must know what decisions are being taken. Mediapersons have a crucial role to play in serving the needs of the citizens. Information related to law should be given to our people. It is a challenge for you to dedicate your work to the goals of access to and free flow of information in the best possible sense. Writing about what people want to read can lead to sensational journalism. Why

should the press depend on sensationalism? There are places that we never hear of until something happens to them. Let's give adequate information to the people. The whole region needs true information. In Sri Lanka, we have established the Press Complaints Commission to encourage journalists not only to be free but to be accurate and responsible. The Press Complaints Commission consists of media-persons so that people can complain and it resultantly will improve the professional standards. For the efforts towards a free media to bear fruit, it is important not only to ensure the free flow of accurate information but also to check misinformation and disinformation. Let's all dedicate ourselves to inform people accurately. Let's have the right to get accurate information. I express my solidarity. Long live Saarc and SAFMA.

Sri Lankan Foreign Minister Fernando sharing the podium with president SAFMA Pakistan, Ziauddin and Secretary General SAFMA

21


Dr. Bhekh Bahadur Thapa Minister-in-charge, Foreign Affairs of Nepal

M

r Thapalia, the President of SAFMA Nepal chapter, briefed me about this organisation, its objectives and what it is trying to promote across the region. This media solidarity could be extended to bring our people and governments closer. I want to convey my best wishes as well as support on behalf of His Majesty's Government of Nepal to attain the goals of SAFMA including free flow of information across frontiers. Our Prime Minister's advice to me was to be unequivocal in our support to the cause you are championing, especially a visa free regime for journalists. Media in general and SAFMA in particular, have been consistently preaching understanding, proximity and harmony between the countries and civil societies. The atmosphere is changing and there is a need to look ahead. Some unpleasant incidents of the past have to be left behind for the common good. The new horizon motivated all of us in the last three days to see how we can create opportunities for each other, rather than creating barriers;

how we can live in greater harmony and allow room to our neighbours. Why do we always look for prosperity outside and find misery at home? These are the issues that have haunted the civil society in all our countries and nobody has championed the cause more eloquently than the media. Today we have completed our homework in trade promotion, cooperation against terrorism and on social charter. Visiting each other's countries without any difficulty will lead eventually towards South Asian Union in which you will be talking about a common currency, a customs union and South Asia without barriers. It will be a journey from a South Asia filled with barriers towards a South Asia without barriers. This is the message that most of you in media had been conveying to us and trying to put some sense in the minds of the people. I have come here to greet you and assure that SAFMA will get all our support and nothing would be better in terms of cooperation than for the media-persons to have free access to all the countries unilaterally and we would like other countries to do likewise. This was our duty and responsibility towards the citizens of South Asia, to convey a sense of welcome and openness that Nepal has towards the citizens of South Asia. In my capacity, in my present position and as a citizen of South Asia, I will be accessible and ready to do whatever I can.

Foreign ministers Morshed Khan and Khurshied Kasuri applaud as the Secretary General presents papers to Dr. Bhekh Bahadur

22


A view of the open discussion during session-I 23


24


Session-I: Minister for information, Sheikh Rashid with (from left) Gokul Pokhrel, Ziauddin, Imtiaz Alam, Reazuddin Ahmed and K. K. Katyal

imperatives of information revolution; recognising the urgency to overcome the information deficit among the member countries about each other; and appreciating the initiative taken by SAFMA to promote understanding, access to and free flow of information in the region, Pakistan supports the following initiatives:

Sheikh Rashid Ahmad Information Minister of Pakistan

T

he Government of Pakistan appreciates the initiative taken by SAFMA, a representative mainstream body of the region, working for peace, understanding, regional cooperation, conflict resolution and free flow of and access to information, besides upholding the right to know, right to expression and principles inspiring various declarations of SAFMA's conferences. We support the right to know and freedom of expression, as recognised by the UN, as a fundamental human right and touchstone of all freedom, and Article 19 of the International Convention on Civil and Political Rights, as a basis for informed and authentic civil society and pluralist democracy. Realising the need to respond to the 25

I- Leading media-practitioners, to start with, shall be allowed free movement across our frontiers to perform their professional duties without a visa, as being practised by certain other categories of our citizens. A liberalised, countrywide, multiple-entry, five-year visa regime without police reporting and bureaucratic delays be instituted for media. II- Facilitate by all possible means the citizens' right to know and access to and free flow of information. III- Form a special committee on media consisting of Foreign/External, Information and Interior/Home secretaries of member countries that shall, in consultation with media bodies, find a suitable mechanism to facilitate free movement of media practitioners and develop a consensus on a Protocol. There is a problem regarding visas and free movement in South Asia and I assure you that Pakistan fully supports your idea. You are the people with some vision who can change the mind of people and create a good atmosphere that will be helpful for all the nations of South Asia. I assure you that any journalist recommended by SAFMA for visa will be free of restrictions. As far as Pakistan is concerned, the media is enjoying unprecedented freedom. Many new TV and radio channels have been established in the private sector and Pakistan Television also started three new channels last year. Pakistan Television is also coming up with the new Direct To Home (DTH) service and is planning a bouquet of 100 channels in the near future. Pakistan Electronic and Print Media Regularity Authority (PEMRA) has already issued two DTH licences in the private sector.


I am hopeful that this conference will forge collective and integrated efforts to solve manifold challenges faced by the media community of this region and create a congenial environment for enhancing the dignity of media profession. There are many critical objectives of the Association, which continue to remain elusive. We have not yet been able to convince the governments in the seven countries, especially those in India and Pakistan, that sharing of media products and free movement of media-persons across the national borders would contribute meaningfully to the efforts being made to enhance understanding among the member countries and to bring the people of the region closer in terms of hearts and minds. We have also not been able so far to get SAFMA affiliated to Saarc. But do not lose heart. We have not given up hope. And with our Secretary General Imtiaz Alam's mind set on achieving these objectives without any further loss of time, I can assure you that the battle has been all but won.

M. Ziauddin President SAFMA, Pakistan

T

he SAFMA family has come a long way since its birth some three years ago.

Despite all odds SAFMA in this short span of time has achieved some stunning successes that in retrospect appear like dreams come true. One such dream come true was a gathering of parliamentarians and intellectuals from India and Pakistan under one roof here in Islamabad, last year where they discussed freely without any hindrance all the contentious issues that mar Indo-Pak relations.

We have found all the seven foreign and information ministers as well as the Saarc Secretary General positively responsive and highly cooperative. And we hope we will have something very good to report to our members at the end of the forthcoming Saarc Summit. Thanks to SAFMA's efforts, and other people's initiatives, India and Pakistan have taken quite commendable confidence-building measures, including the ceasefire across the Line of Control. It's time to start an integrated, uninterruptible and result-oriented dialogue and take historic decisions. SAFMA will welcome not only the creation of South Asian Free Trade Area (SAFTA), but also a South Asian Economic Union. This is also a time to think in terms of establishing a collective security system for South Asia. But, all these good initiatives cannot be realised, unless the governments allow free flow of information and free movement of journalists across our frontiers. These are some of the biggest challenges for all of us in the Saarc countries. 26


Rajeev Dhavan Senior lawyer, India

T

he subcontinent is the greatest experiment in governance; we have the diversity that is unparalleled anywhere in the world. Any step, big or small, that brings this diversity together is valuable. Information plays a crucial role in this regard. When we talk of information, it concentrates on the affairs of state. There is an electoral democracy which renews itself time and again but there is another democracy of everyday life in which we play a massive role. It is in this democracy of everyday life that we find people maltreated. We find that corporate power is something to be dealt with and that too is a challenge for democracy. When we talk of the information order, of course, we are constrained and in many ways constricted by many laws that exist. How do these laws actually interact and how often is the Official Secrets Act used? In India, apart from one very famous case of 1946, and again in Salakey Brothers spying case, the Official Secrets Act has not been used. When you are dealing with local government, corporate powers, grants and even with newspapers, you ask the question who stifled the story and who did not. You are actually raising questions of dayto-day democracy and that is the real democracy that exists in any particular 27

society. Elections are a very important part of democracy but day-to-day pressures of democracy do exist and it is at the ground level of the day-to-day pressures that the journalists, lawyers, and NGO's give meaning to what democracy means today. There has been a tremendous change in the last 30 years as to how we expose information. The classical British technique was to ask a commission for inquiry and it would say that so and so may be responsible and then you expected that particular man to resign. It worked in the 50's when Jawahar Lal Nehru was alive and Sardas Commission looked into the oddities and corruption and, resultantly, Sardar Pratab Singh Keru resigned. If the missions of inquiry are the way in which democracy is going to unravel itself then it is of no worth. We know that commission of inquiry works on politics of shame. The politics of shame has disappeared from our political system across the board. Information based democracy does not just wait for the next commission or inquiry and next elections but an ongoing information based democracy will ensure it. The weapons of democracy are the whistle and the whistle blower. What hurts about the Official Secrets Act is the catchall Section 5. If you take one particular document and publish it and even if it is wrongly classified and unclassified, it is technically an offence against the Official Secrets Act. The enormous amount of information that you can get from inside bureaucracy does not have a parallel.


The imperial apparatus in the form of Press and Registration Act came into being in 1867. The origin of this massive conversion of Press Registrar into an inspector general is to be found in the Second Indian Press Commission Report of 1982. Suddenly, one finds out that the Press Registrar is supposed to have enormous powers. He can inspect any newspaper. In 1998 such a bill was proposed in India but journalists said that they were not going to allow a simple registration requirement to be turned into a regulatory control. The original penal code has sections on defamation. In 1870, the Chairman of the Law Commission discovered that there was no provision for sedition. Section 120 A and B of Penal Code are the inventions of the Law Commission because they realised that they did not want it for England but they wanted to have it here. Then there was a change in 1898 that added other A and B's like 153 A on 'Religious Enmity', 295-A after the infamous case of Rangeela Rasool of which we are all truly ashamed. The judgement of Dileep Singh needs to be rewritten. Banning books does not just take place under section 99-B of the Criminal Procedure Court. It takes place under subtle circumstances. Salman Rushdie's book was banned in India in 1988 not under any due process. It was banned under the Custom's Act. Then one particular picture of Jawahar Lal Nehru on a horseback was banned. I think he was dressed in imperial robes and India did not want to give the impression that Pandit was a budding Viceroy. But it was banned neither under the great statutes nor under section 99-B. It was banned simply by some

under-secretary who had to write on the request of the minister that this book or picture is banned in India. Nobody even gave me a right to be heard. If you ban something under the banning provisions of the imperial statutes then a full bench of three judges has to hear it. The new danger is the framework of the old Raj, which you see in the Penal Code. India does not have the forfeiture provisions, but they exist in other parts of South Asia. The real danger comes from a section of civil society. But what is responsible for the large number of bans, censorships and custom prohibitions that take place? There are forces in civil society who also demand it. It is this aspect of civil society that also makes and preserves these demands and makes censorship possible. The problem in defamation law is the defamation injunction. Kuldip Nayar wrote a book India House. Some members of Supreme Court Bar Association did not like it and parts of the book had to be altered. What are the tools of trade that have to emerge to get that critical information that makes democracy of everyday life possible? The democracy that enables a villager to say this fund is for me and I did not get it.

Exchanging notes: Mr. S. Nihal Singh and H. K. Dua, India

The capacity to tell the editor and to be able to examine what internal censorship takes place. The biggest battle is the huge amount of civil censorship that takes place in society. We have to learn now, putting our bitterness aside. 28


result of a long struggle, Federal Shariah Court struck down some of the provisions and it was assumed that if the declaration was not signed for four months then it would automatically be deemed that it has been given. Two weeks ago, the Interior Ministry announced that henceforth no declaration would be authenticated without its clearance. The justification is that there are terrorists at large. What we find is that laws are becoming more rigorous. The Freedom of Information Ordinance denies information. No question can be asked about any exemption or classification imposed by the government. Now PEMRA at the moment is being used to blackmail the electronic media. There is a very famous channel that has been functioning for quite some time but it is still to be given the license. Press laws are not only applicable to the media. Hussain Naqi, Mazhar Ali Khan, Wajid Shamsul Hasan and Mehmood Sham were prosecuted under the Official Secrets Act, 1923.

Under section 295-C, the so-called Blasphemy Law was to be regularised by the National Assembly and the Senate. A standing committee was set up to review the bill and it observed that we are not the only Muslim country in the world and we should see how this problem is treated in other countries but they decided that we should not allow the people to know the standing committee's observations. A gazette was issued but the word 'confidential' was put on it. Our structural adjustment agreements are still secret though the agreement itself says that both the parties will publicise this agreement and make it known.

In 1960, General Ayub Khan decided to create a new information regime not only related to the press but also to cinema, television and publications and decided to hegemonise writers as well. There was a time when no declaration could be granted unless President General Zia himself sanctioned it. As a

We also have Section 99-A of Criminal Procedure Code and Contempt of Court is also applied to journalists, editors and even printers. You can hold journalists under the Anti-Terrorism Act. This applies to minorities as well. Pakistani media has suffered more from censorship than any other thing in this region. Mr. Ridley's UN report on torture was banned in Pakistan. Last year, many journalists were picked up and it was not disclosed where they were kept as we have the recent example of Khawar Mehdi. So I suggest do not go by the laws but look at our practice.

T

29

Sweeping legislation like Security of Pakistan Act and Maintenance of Public Order Ordinance do exist. Then we have an interesting section of Penal Code 123-A, which states that if anybody, abuses the ideology of Pakistan, he will be thrown into prison for 10 years. But there is no explanation of how the ideology of Pakistan can be abused. The restriction on thought is very evident here. Then in 1960 a whole lot of people were prosecuted under 124-A for sedition. Section 153-B is common between India and Pakistan. Then there is Section 292, which prohibits sale, exhibition or possession of obscene books. Now the question arises who decides what obscene is? The only exemption is material used for religious purpose. We have the system of publishing notifications, orders, ordinances and laws in gazette to inform the people.

I. A. Rehman Director HRCP he story of press laws and press freedom in Pakistan is very brief but bitter. We have many laws to curtail freedom and little opportunity to enjoy it. When we look at laws we do not get the full picture of coercion that the state applies. We are in the imperial straitjacket and very fond of colonial legacy. When Pakistan came into being, there were two laws; Press and Registration Book Act, based on Adam Regulations of the 19th century, and the Press Emergency Powers Act, 1931. The British regulated the press through emergency provisions. Our rulers extended the Press Emergency Powers Act till 1963 and many publications were proceeded against under it.


publishing of objectionable material. These guarantees were deemed essential in the aftermath of the draconian press laws enforced during the 30 years Punchayati rules. One of the significant features of the 1990 Constitution is the guarantee to right to information. But it is not available. There has been a boom in the number of newspapers in the aftermath of 1990 democratic restoration. Most of them exist in registration only but do not appear in the market. The reason is that our law does not have any provision for cancellation of registration for not complying with the rules over a certain period of time. They exist forever. The real number of newspapers published on regular basis is only 237 out of 1879 that are registered. However, progress of broadcast media is very encouraging. The law for broadcasting is very liberal which allows private sector participation in operating radio and television channels. We now have 55 small FM radio stations providing services to various districts even in the remote mountainous areas.

Gokul Pokhrel Vice-President SAFMA, Nepal

I

n 1901 during the autocratic rule of Rana there was a Prime Minister who issued a decree in which he said there should be no praise for a sitting Prime Minister. This statement was considered as one of the classics of Code of Conduct for the media and it is unparalleled in Asia. This is how the press law of Nepal emerged in 1901 from a very autocratic set up. The establishment of democracy allowed freedom of information in the private sector. In 1990, the restoration of multiparty democracy marked a major w a t e rs h e d i n t h e d e ve l o p m e nt o f progressive press laws. The Constitution of Nepal provides media freedom and guarantees against censorships, cessation of publication, closure of printing press and

We are facing problems now when we talk about state of media freedom because of the Maoist insurgency over the last eight years in which about 9 thousand lives have been lost. Consequently, media freedom is also being curtailed. There was a report published by the Human Rights Commission, which stated that 560 people were harassed or arrested against whom no case had been registered. Many journalists have faced harassment, intimidation and arrest. Media practitioners have to compromise and observe restraint due to Anti-Terrorism laws. The Press Council in Nepal is there to monitor and ensure that professional norms are being practiced. Last year, the Press Council Nepal issued a 24-point Code of Conduct, which enumerated the do's and don'ts for journalists. There are several laws to prohibit the dissemination of information in public interest and to protect national sovereignty or security. The civil laws restrict the spokespersons and government officers from divulging information to the press. We hope that the proposed ordinance, which the government had promised to bring on right to information, might improve the situation. The other restrictive provisions on the freedom of information are the Official Secrets Act and the Press and Registration Act that restrict objectionable publication. The Offence Against State and Punishment Act put restrictions on print and electronic media. Security laws also have restrictive provisions to curb the freedom of expression. The Copyright law amended in 2002 is very comprehensive. The government is moving ahead on cyber-policies that are to translate into legislation very soon. 30


months ago and it will try to increase the level of public confidence in the media. Many government officials simply do not speak to the media without the written permission from the secretary of their ministry and that takes weeks. The Freedom of Information Act, if passed would help greatly in that respect.

Niresh Eliatamby Expert on media laws

S

ri Lankan media is in state of transition. Freedom of information bill has been proposed. There are some other developments like the setting up of the Press Complaints Commission of Sri Lanka. It is very significant because it was organised by several media organisations. The commission looks into complaints from the public regarding media. Its 11 members are appointed by media organisations, though the majority of members are not from the media but are taken from other fields. This commission was set up 3 31

There are other developments that are not so encouraging. The President took control of three ministries two months ago and one of them was the Ministry of Mass Communication. All the state media institutions; radio, television, and newspapers, would come under her control. She has removed the chairmen of these institutions and appointed members of her party to head them. The government of Ranil Wickremasinghe had been making some promises to the media like privatisation of some state-owned media institutions. The state-owned Independent Television Network (ITN) was actually put up for privatisation. But before it could be privatised, the President took its control once again. There was another promise to privatise Lake House, which was nationalised by an Act in 1973 under which 75 per cent of its shareholding was taken by the government and invested in the Public Trustee's Department in order to redistribute it later for making that shareholding more broad-based. In the last 30 years, those shares have not been redistributed and remained with the Trustee's Department. This allows our governments to appoint its Board of Directors and its Chairman as well as some of its editors. Next few months are crucial to media and scope of its freedom.


Iqbal Sobhan Chowdhury Vice-President SAFMA, Bangladesh

B

angladesh claims that it has a free media. Unfortunately, the media is free but the journalists are not quite free. Pakistan and Bangladesh both have the legacy of military regimes. Fortunately, Bangladesh got rid of military rule in 1990 with the emergence of democracy again. But the hopes and aspirations with which the media people fought against military regimes still remain unfulfilled. The media people despite limitations and restrictions have been continuing their struggle to exercise their rights. The media has been persistently fighting against harassment, repression and restrictions in the way Pakistani civil society and the media have been fighting against military regimes. India is fortunate to have institutionalised democracy but other countries in South Asia have to struggle for institutionalising democracy. There is a spectre of the third force reemerging in our political arena. This third force can either be a constitutional third force or an extra constitutional third force. If it is a constitutional force then we do not have any objection but if it is an extra constitutional third force then it is a bad omen. The civil society and media in Bangladesh are passing through a crucial stage. We will try to strengthen constitutional democracy and at no cost will compromise media freedom. Afsan Chowdhury has mentioned certain restrictions, particularly about major legal infringements on the media.

He cited some examples regarding the restrictions on journalists, police raid on private TV channels and the defamation case filed by an official candidate for the Secretary General of OIC against two national dailies. There are new methods of repressing and restricting journalists like the Official Secrets Act, detention, interrogation by the intelligence forces, defamation laws, contempt of court, charge of sedition and control on electronic media. The recent trend and monopoly of media by trading houses and capitalists groups is also a cause for concern. The state control on media has gone today, if not fully, but in a very substantive way. But now the control of big business houses is emerging, which is considered to be a real threat to free media. On the one hand, there is a boom of private channels but at the same time there are incidents of infringement on freedom. The government is not allowing the applicants to start new channels. Governments decide the extent of freedom to be exercised. In the name of given freedom, covert and overt restrictions sometimes come in crude ways. There is no call from the state to censor the news but there are big ifs and buts. The journalist community had fought with unity during the autocratic regimes and assisted political parties in restoring democracy and removing autocratic rulers. Now we have lost our unity and the journalist community is divided on political lines in Bangladesh. It is hampering the struggle to ensure the rights of the journalist community and freedom of media. Despite this divide, journalists have taken up this fight on common programmes and on common issues like freedom of the press, democracy and human rights. It is very interesting that political parties pledge in election campaigns to give freedom to media. When they are in opposition they consider media very bold but as a ruling party they emphasise on media to be 'responsible'. In opposition they need press to be vocal for them but in power they want media to be 'objective' because freedom of media will go against their misdoings. Civil society and human rights organisations are with the media in its fight and at times media supports them for real democracy. In our country, in the absence of press laws to access information, the media cannot really take the role of informing the people. It becomes visible when a journalist tries to dig out information and faces restrictions. This fight will continue with the hope that the spectre of interference whether it is from the state, political parties or other quarters will not really diminish the prospect of freedom. 32


the freedom of press being encroached upon by the legislators. The threat from the judiciary is also there. The law of contempt is often used to protect the judges from the press. But the press cannot report many things where the conduct of judges is involved. This law is used as a shield to protect the judge who may be corrupt and whose conduct may be questionable. The Defamation Bill was brought without any notice and without discussing it with the journalists' bodies and it was passed by the parliament within three hours. The reaction from the press was immediate and it unanimously opposed the bill. A few papers fought against Indra Gandhi's Emergency but the press was lacking in unity and vigilance. But as far as the Defamation Bill was concerned, the unity of the press forced Rajiv Gandhi to withdraw the bill even without talks. Praful Bidwai Columnist

H. K. Dua Editor Tribune

T

he parliament has not enacted any law to define its privileges. They are just following what the British House of Commons, where there is no written Constitution, has passed. These privileges are continuously hanging on the press as a sword. 'The Hindu' newspaper wrote a sober editorial criticising the Chief Minister of Tamil Nadu, Jayalalitha, who did not take any offence but the Tamil Nadu Assembly targeted 'The Hindu' newspaper for a breach of privilege. The police went to arrest the editor of The Hindu but the Supreme Court stayed the arrest. The case is still in the court because it has raised constitutional issues regarding 33

As pernicious as the censorship by the state and the whole imperial legacy, is the self-censorship in the media under the new dispensation. There is always a degree of self-censorship by editors and publishers who want to please political parties. Now there is a new phenomenon of Murdochisation, which represents the unique combination of the new liberal right-wing free-market policies with the extremely new conservative politics of external and internal hegemony. Under Murdoch, the entire press is undergoing a transition globally. Concentration and centralisation has increased. In the west, 8 groups control 80 per cent of mass media. Murdochisation is the combination of three components. The first is the elimination of separation between the editorial and managerial functions of the media. Once the line is

Praful Bidwai provides the perspective on Murdochisation


obliterated, and once the reporters are completely disabled from performing their functions, censorship becomes blatant. Murdoch has done this shamelessly and destroyed solid institutions like The London Times. The second characteristic is heavyhanded strong-arm marketing tactics. Newspapers are being pushed as a commodity that is meant to sell other commodities. Therefore, one can practise all techniques including predatory pricing. In India, newspapers of 24 to 32 pages cost 12 to 15 rupees to produce. If they are sold at the price of 2 rupees then only advertisement makes the difference. But only big papers get significant advertising and the rest are sinking. Freedom of expression is being curtailed and variety is being sacrificed. The third component is the conscious tie up with the right wing agenda of the most conservative communalism and support for the worst policies of the United States under the conservative leadership, including the war in Iraq. Opposing friendship with neighbours and the constant drumming up of pseudo-nationalism of all varieties are producing a unique kind of threat to the media both internally and in terms of its credibility for the larger public. This is the threat we must actually take note of and develop a strategy to fight against it. Vinod Kumar Sharma Associate Editor, Hindustan Times The entire concept of tetra-pack journalism in India has to be contested immediately; the mortgaging of the respective economies of the Indian newspapers to the big advertisers who are highly flexible when it comes to making compromises. That is where the

Vinod Kumar Sharma, darling of SAFMA, makes his point quite theatrically

real danger lies. In fact, the difference between advertorial and editorial is fast diminishing. There have been certain newspapers that have authorised their marketing people to sell space or fill it up with a commercial idea. In elections, the opinion of people of our respective countries seldom gets reflected in the newspapers. The poor people get a chance to make a point only when they vote in India. If the newspapers are not playing their legitimate, moral and intellectual roles then the civil society is going to be a big loser. Firstly, the faith in media will be weakened and then the interfering role of media between the people and government will die away. The media must be willing to take risks of physical, commercial and intellectual nature. If they do not take risks and positions on issues that are relevant to the people, it will lose people's trust. People are not getting the information that really empowers them and media's job is to empower the public opinion. A journalist can travel across the borders but neither his product nor thought can travel. We are not adequately empowering public opinion in our respective countries. Newspapers should come under the Essential Commodities Act. People are being made accustomed to the substandard information. Media is following 'demand and supply'. Now there is a trend of publishing pictures on the front page to strengthen a weak newspaper. The kind of consumerism promoted by the media across the subcontinent is breeding the phenomenon of intellectual poverty. Our endeavour should be to create papers that are not big in terms of circulation but to create papers that are really great. 34


Apply equal standards says Satnam Singh Manak

Zahiduzzaman Faruque Gen. Secretary SAFMA, Bangladesh

Satnam Singh Manak Assistant Editor Ajit, President SAFMA Punjab, India

As a journalist I must see what the demand of the situation is. In our country, more than 50 per cent people live below the poverty line. We are talking about the free flow of information and press freedom but can we stand by the reporter or can the editor fight with the publisher to publish his reporter's story.

The commercialism in media is detrimental to its due role. Now readers do not buy newspapers to read them but to cut coupons for free prizes. Newspapers used to build their identity through their ideology but now the difference among credible and largely circulated papers is increasing and that will affect the credibility of the press. In a big country like India, when the government attacks the electronic media, the press remained mum. In Punjab, when the Congress established its government less than two years back, it stopped official advertisement to Ajit. No paper wrote any editorial to sympathise with this paper and small papers gave the excuse that the previous government had favoured this newspaper. The press should be courageous enough to confront any danger and threat. Secondly, a charter of do's and don'ts should be prepared because the level of commercialism would cause media its credibility.

Only morality and professional commitment can change media's strength.

A mix of delegates, especially Ms. Nerun Yakub from Bangladesh, engaged in proceedings

35


Syed Badrul Ahsan Assistant Editor, New Age Bangladesh

T

he situation faced by media in Bangladesh is neither very optimistic nor pessimistic; it is somewhere in between. When the editor of New Age applied for the declaration of the newspaper it transpired that he needed to get a certificate from the Award Commissioner, a local body member in the city. Despite the fact that the editor is a senior journalist, he had to undergo the whole process to bring out the newspaper. Then there is the defamation law in Bangladesh. One recent example relates to a couple of news reports published in some dailies of the country. The government candidate for the position of Secretary General of the Organisation of Islamic Countries took two newspapers to the court. He filed defamation charges and warrants of arrests were issued against the editors who faced the agony of running from one place to another in and outside Dhaka. That is one aspect of harassment that journalists often face. Journalists can complain before the Press Commission but it does not seem to be an effective body. The situation today is somewhat better than what it used to be during military regimes because now the press does not have to deal with the advice from the government. However, the Official Secrets Act is still in force. The Press and Publications Ordinance is still there but is rarely enforced. Limitations on the right to know are demonstrated by what a private TV channel had to face. There were some technical difficulties that ETV faced when a case was filed against it. They lost the case, but the way the authorities handled the case demonstrated how the private dissemination of information was being stifled. In the meanwhile, people have been applying for permission to restart ETV. Even the Information Minister said there was no plan at the time to give permission. Another problem is related with the question of investigative journalism in Bangladesh at present. We do find reports but followup of these stories is rare. The Supreme Judicial Council was

established and it started hearings of a case against a judge of High Court but then an effective blackout was clamped on its workings. Now the press in Bangladesh is not aware of the proceedings. Trading houses have entered the media industry. There are reports of shady dealings behind financial transactions. The negative aspect of these houses is that they do not allow trade unions. The unions are also divided in factions and basically we have two factions, Bangladesh Federal Union of Journalists and the Dhaka Union of Journalists, and they owe their loyalty to the two main political parties. In this situation you do not expect much of objective journalism. There are newspapers that have not paid journalists for months. There are also newspapers that sack journalists when they demand to be paid. In spite of all these problems, journalism in Bangladesh is thriving and there is more freedom today than before. 36


Rajeev Dhavan Senior lawyer, India

A

s far as Official Secrets Act 1923 is concerned, the common law discovered that there was no offence known to the law if somebody takes some information. The 1923 Act was passed within a day. The Attorney General told the House of Commons that this is an emergency measure because these Germans are up to all kind of things. The 1911 Act, which afterwards turned into the 1923 Act, was never repealed. The English who had passed this law in 1911 pensioned off the Official Secrets Act. But India, Pakistan and Bangladesh are still exercising this law. The Freedom of Information Act should in fact be scrapped. The Indian Act says 'to the extent of inconsistencies', but what does it mean by the extent of inconsistencies? There can be no doubt that this particular Act covers just about everything. Second is the access to government information but where does it come from. It cannot be done by anyone going straight to the government and asking for information. We rely on the person whom we know all along and every member of the press relies on him and he is called the whistleblower who needs our protection from the Official Secrets Act. The clause 47 states what you can whistle about? If the democracy is to be fed by the vast volume of

37

information that exists, it will be fed by the man of conscience inside the administration who will come to you and say this is what is going on. Whistleblower protection is going to be in future the heart and soul of exposure. In our Central Service Rules, even if the whistleblower is not subjected to criminal liability, he is subjected to severe internal disciplinary actions. To what extent will the Freedom of Information Act be viable if there is no policy on freedom of information? We need to have an access to active information now, but how is this access to be given? Ram Jethmalani, a minister in the urban ministry, introduced the One-Rupee Scheme for the citizens to enable them to get any paper that was at that time not circulated after paying one rupee. As soon as the scheme was announced, the Cabinet Office went through a fit over it. We have Archives Resolution but except the date nothing can be disclosed. Even that resolution is secret. So the next problem is an information regime and an information system. When the two press commissions reviewed government periodicals they found them dead boring but the volume of government speech is enormous. Let the Freedom of Information Act be pensioned off. Let whistleblowers be given protection. Let us ask for an information policy that does not look at Archives but at active information. The Contempt of Court is a terrible thing that came into modern contempt law in 1802 out of a decision that was never ever made. The law of contempt certainly grants power to the courts for their proceedings. You cannot have the public interest litigation, on one hand, and the silencing law of contempt, on the other. These are the issues which will be decided by the Supreme Court. The right to comment on litigation which involves a huge number of vested interests must remain with the people. The third issue raised is the parliamentary privilege. The jurisdiction is very annoying like the defamation jurisdiction because the process is the punishment. When this privilege is used again and again it is a humiliating experience. Defamation laws are divided into criminal and civil. The Hindu newspaper has taken the issue of criminal contempt to the Supreme Court. Criminal defamation has no place in our laws which were put there on the basis of the 1833 report on the Indian Penal Code and there is not a single word of justification as to why criminal defamation should be there. The law of criminal defamation should be deleted. The worst part of the civil defamation is what we are now going to enter into: the Strategic Lawsuit Against Public Participation (SLAPP). The entire purpose of SLAPP is to keep you quiet. There is an enormous commercialism of the press and we should not run away from Murdochism. There was a satirical magazine Private Eye, which was ruined by Murdoch. Our papers are getting commercial and advertisements are important. Governments speak not just through their disinformation regimes but with advertisements as well. These are the things we must consider because ultimately we do not just talk about the right to know or even the right to express but the right to make norms. That right is at present being trivialised to some extent and taken over by commercialisation. The press is under threat both internally from its editors and certainly from its owners. It is the civil society the press must interlock with because if it loses its voice, then it becomes someone else's voice. That is not the voice in public interests.


Dr. Ram Krishna Timalsena Spokesperson Supreme Court of Nepal

T

he Constitution has guaranteed 13 different fundamental rights including, freedom of opinion and expression, press and publication right and right to information under Part III of the Constitution. After the promulgation of the new constitution in 1990, His Majesty's Government formulated the National Communication Policy in 1992. On the basis of this policy, His Majesty's Government also opened doors to the private sector in the operation of electronic media. A number of media laws were enacted. The Press and Publication Act, 1992, the National Broadcasting Act, 1992, The Press Council Act, 1992, the National News Agency Act (Amendment), 1990, the Working Journalists Act, 1994, and the Telecommunications Act, 1996 were the major enactments. The government also drafted the Right to Information Bill in 1992 but failed to get it passed by the Parliament. Of late, His Majesty's Government has prepared a Public Information Bill. The Nepalese Constitution, however, does not make the right to information an unqualified right. It allows secrecy to be maintained by law. If the parliament enacts a law to make certain information secret, the right to that information is not available. However, in such a situation the Supreme Court, while exercising its power of judicial review, may examine the constitutionality of the law allowing secrecy and may declare it ultra vires of the Constitution. The right to freedom of opinion and expression under Article 12(2) (a), the freedom of press and publication right under Article 13(1) (2) and the right to information under Article 16 of the Constitution of the Kingdom of Nepal are the foundation of press freedom in Nepal. The Press and Publication Act 1991 also provides the press with institutional independence. Though the press in Nepal is independent and strong in its constitutional and legal status, it is dependent in various ways. There are newspapers run by the government as well as by private sector. It is alleged that the government favours its own newspapers in providing advertisements. The official National News Agency is the only authorised agency in the country to collect and sell information. Both the state and private companies run television and radio. As in print media, the government owned and controlled television and radio

which have a wider audience. As far as access to official documents is concerned, Nepalese legislation makes it limited to the concerned person. The person requesting access has to supply the details of the documents in his application. There is no provision of access to information if it is recorded in a computer or electromagnetic devices. Moreover, if the departmental head or office incharge does not permit a copy of the requested document, there is no appeal against it. It shows that the right to access official documents is not really a right because it depends on the discretion of the concerned head of the department or office in-charge. In the absence of proper classification of documents, the right has not been implemented properly. Therefore, there is a gap between the constitutional vision and the statutory provision. One may ask for a copy or duplicate of the archival documents under the Archives Preservation Act 1989. Access to archives is restricted on certain grounds. If the document that has been transferred by the concerned office to the National Archives for preservation, with or 38


without specifying the time period, and it prohibits the reading, copying and duplicating of such document by a person other than the prescribed person, access is not permitted. The bureaucracy in Nepal seems unaware of the constitutional guarantee of the right to information. The Civil Service Act and Rules both forbid civil servants from disclosing information to unauthorised persons. The oath they take forbids them to disclose the information known to them in the course of their official duties. At the moment, there is no law regarding access to information in the hands of the private organisations, institutions and companies. If any corporation denies access to information to any citizen, there is no law compelling the organisation to give information. His Majesty's Government has drafted a bill regarding the right to information recently under which the public authority is obliged to justify any refusal of information. After a long and tireless struggle by the civil society organisations including media organisations and Federation of Nepalese Journalists, the government showed an interest

39

Keeping the silence: Rehana Hakeem and Saira Irshad

in drafting the right to information legislation. A bill was drafted by a committee of experts comprising media-persons and legal experts. But as it passed through bureaucratic scrutiny, it lost its teeth. However, the present bill is comparatively better than that of 1992. It has widened the scope of the right to information by defining “ public authority� very widely, which inter alia includes Parliament, Supreme Court and other inferior courts, Royal Nepal Army, Commissions formed by His Majesty's Government, political parties, NGOs and INGOs operating for the purpose of promoting public good. In this respect, this bill has a wider scope than that of any other freedom of information legislation in the world. It also defines the right to information. Right to information under this bill includes the right of access to information and includes inspection, taking notes and extracts and obtaining certified copies of documents or records of any public authority. Where the information is stored in computers or any electromagnetic device the facility of access through terminals or supply of printout is guaranteed. The Bill also defines the subject matter of public interest for the purpose of this legislation. The Secrecy of Document Act 1982 classifies documents into 'strictly prohibited', 'top secret' and 'confidential'. This Act has not been enforced so far. The Act does not address the problems of classification. Therefore, a suitable legislation having proper guidelines regarding classification of official documents is required.


I. A. Rehman Director HRCP General objections . The Freedom of Information Ordinance is liable to rejection on the ground of the lawmaker's lack of legitimacy. In fact, it should be titled as the denial of information law. Further, this ordinance was published in the gazette on October 26, 2002, a fortnight after a new National Assembly had been elected. The issuance of extraconstitutional legislation at such a time betrays a reprehensible contempt for democracy.

1

2. While substantially following the draft ordinance circulated for debate in August 2000, the present measure made some changes for the worse. The provisions added to the 2000 draft and their impacts on the substance of the enactment are: I) Section 2, and definitions: The addition of (a) 'complainant' (b) 'complaint', (d) 'employee', and replacement of 'public office' with 'public body' in (h) are inconsequential. The addition of Federal Tax Ombudsman as a forum for redress (in revenue matters) is welcome but it does not affect the design of the ordinance plus promotion of a parallel form of judiciary in the form of Mohtasib should be completely done away with. Also, once a final decision has been taken like, ECC & Cabinet summaries, they should be made public. Section 3. There has been over legislation in every aspect of the activity. Therefore it should be simplified so that the authority residing within this clause cannot be abused. Also it should be clarified as to who determines that it is necessary to withhold information. II) Section 4, Maintenance of record: This section only formalises what we always believed was government's duty.

be in the national interest to hold information therefore after a stipulated period of say 20 years these records should be made public. Also the standing committees of the parliament should be fully cognizant of these decisions. V) Section 9, Duty to assist: This section is superfluous and has been added only for effect. Section 10: It denies public its right to decide through parliament. Section 13(2) A & B are beyond the scope of common understanding and should be more simply put. Also, seven days of time period is sufficient from the filing date of the application. VI) Sections 14,15,16,17 and 18 added to the draft of 2000 enlarge the volume of information the government can withhold. Also, all of these should be subject to agreement of the parliamentary committees. Clause 18 is redundant. Section 19: A High Court Judge instead of a Mohtasib should be vested with the powers to decide in order to discourage parallel judiciary institutions from flourishing. Therefore wherever the term Mohtasib has been used it should be replaced with that of a High Court Judge.

III) Section 5, Publication: What this section says has been done since the colonial period.

VII) Section 20, Frivolous complaint: This section adds punishment to a principle raised during the debate on the draft of 2000.

IV) Section 8, Exclusion of record: Additional clauses (e) and (I) only enlarge the reservations made in the 2000 draft and since all governments have displayed a tendency to hide facts by terming it to

VIII) Offence, Destruction of record: The provision is welcome but it is inadequate. Comparison with the draft of 2000 is required on 40


two grounds: a) The period of more than two years that the measure has been before the government has not been utilised on improving the draft in public interest. It has been utilised on making a bad draft worse. Serious questions arise about the establishment's sincerity. That the government has further diluted the 2000 proposal speaks for itself. b) Unlike the original draft of the 1997 Ordinance (drafted by Fakhruddin G. Ebrahim) the ordinance makes no reference to the people's fundamental right to information as provided in the Constitution (Article 19). That any freedom of information law should be premised on the basic right to know is absolutely essential. 3. The authors of the ordinance have not taken into consideration the international actions and the discourse around them relating to enlargement of the right to access information. 4. The law applies only to federal records whereas the original draft of the 1997 law covered provincial and local records as well. Granted that information is a provincial subject but it was not impossible to make the law applicable to provincial records in the manner used for local bodies' legislation. 5. The ordinance attracts all the criticism on the 2000 draft. 6. The ordinance does not provide for appeal to judiciary, which in a matter related to a right, amounts to denial of that right. Specific provisions: I) The preamble: The people's right to

41

know must be included. II) Section 7: The process leading to final orders must be included in public record. This is necessary to ascertain whether a final decision is based on reason and takes into consideration expert opinion and precedents. III) Section 11: The designated official is made subject to government instructions. This is opening a door for deviation from the law and rules. IV) Section 12: Reservation of the right to access information to Pakistani citizens is unfair, as it will exclude foreign journalists, scholars and historians. The condition of a prescribed form and the obligation to furnish particulars are unnecessary and will only lead to red tape and defer information seekers. V) Section 14,15,16,17 and 18 create an extraordinarily large area of exemptions that are couched in extremely general terms. While some exemptions can be defended in public interest most others cannot be justified. International opinion has finalised concepts for exemptions, which Pakistan need not to ignore. VI) Section 19: Recourse to Mohtasib has been limited. He can be approached only if the designated official declines to give information on ground that the applicant is not entitled to receive that information. The question of entitlement is unjustified. The creation of another forum, the head of the department, before an aggrieved applicant can go to the Mohtasib is unnecessary. It will cause delays and may frustrate the purpose. No time frame has been mentioned for disposal of matters by the ombudsmen. VII) Section 20: Destruction of record in an unauthorised manner before and after a complaint has been filed/disposed of should also be an offence. Section 22: Instead of the term in pursuance the expression in providing information to the public should be used. VIII) Section 23: The original draft of the 1997 Ordinance provided that right to information law would override all other laws. This feature has been dropped and this abridges the right to information. IX) Section 25: The rules are yet to be framed. Till this happens the ordinance cannot be enforced. No examination of the law is possible until the rules also are scrutinised. The rules should have been notified along with the ordinance. Conclusion: The ordinance is flawed in terms of both concept and content. Unless it is drastically changed to accommodate public views it will serve only as a vehicle for denying information instead of making it accessible to the citizens.


N. M. Ameen, Organiser SAFMA, Sri Lanka

T

his 1978 constitution-making exercise was very different from what took place way back in 1948. At that time the influence of the British constitutional expert Sir Ivor Jenning was quite evident. But in 1978 the wisdom that went in to making the constitution was indigenous. Its makers were inspired though by the constitution of United States of America and by the constitution of the Republic of France. The 1978 constitution was widely scrutinised in the subsequent years. In 1996 a committee to advise on the reforms and laws affecting media freedom and freedom of expression was appointed and it recommended steps relating to these vital matters. In 1988, the Colombo Declaration on Media Freedom and Social Responsibility was issued jointly by the Free Media Movement, the Editors Guild of Sri Lanka and the Newspaper (Publishers) Society of Sri Lanka, to promote the freedom of expression and media freedom. Most of the proposals made subsequently by the 1996 committee formed to advise on the reforms of laws affecting media freedom and freedom of expression have been included in the Colombo Declaration. The government that came into power in December 2001, introduced a series of bills to ensure freedom of information. Finally, a landmark bill was approved by the cabinet of Sri Lanka on 17th December, 2003. This bill provides public access to official information and was the culmination of a longstanding demand of media groups in Sri Lanka. The symposium of Media Freedom and Social Responsibility that preceded the Colombo Declaration, for the first time in the history of the Commonwealth, provided a platform for the media personnel from all ranks to meet in a single forum to discuss issues of media freedom and a common platform of reform. A high-powered team headed by Prime Minister Ranil Wickremasinghe was responsible for the drafting of this landmark bill together with the representatives of the media. The bill that was to be proposed to parliament this year was expected to receive the unanimous approval of all members of the legislature. The bill has also received the blessings of President Chandrika Bandaranaike Kumaratunga, already. This bill when it becomes law is sure to herald a new era in the sphere

of access to information in Sri Lanka. The new Legislation proposes the following: 1) The right of any citizen to access official information in the custody and control of public authorities. 2) The circumstances and the types of information to which access shall be denied. 3) The appointment of Information Officers in each public authority and the establishment of a Freedom of Information Commission to hear appeals regarding information that is denied. 4) Final appeal to the Supreme Court. 5) Deliberate non-compliance with the law to be punishable with a fine. 6) The duty of public authorities to publicise high-value foreign-funded and locally funded projects. 7) To exempt whistle-blowers who divulge public information within the law from punishment. 8) A non-governmental, non-partisan body of responsible people is mooted as the mechanism to ensure that freedom of expression and access to vital information, are ensured without any hindrance.

42


Reazuddin Ahmed President of SAFMA

A

rranging the Saarc Journalists Summit ahead of the 12th Saarc Summit is a success. The foreign ministers' presence and their support to our protocol will go a long way towards achieving our objectives. The success of this meeting reckons on two grounds. We have been able to get support in favour of our protocol and we have discussed the nitty-gritty of press laws. We promise to continue our struggle to supplement the cooperative efforts through Saarc in South Asia.

43


K. K. Katyal President SAFMA, India

I

t is a big achievement to have secured personal assurances from the foreign ministers of Saarc countries regarding the demand made by SAFMA for free movement of journalists and media-products. What has been accepted is principle of free movement and modalities will have to be worked out. It will be a crucial stage and we need to be prepared for that. We have suggested some criteria for allowing visa free entry from one country to another for journalists. There are some reservations to the 10year stipulation on the ground that it shuts the door to younger journalists. The journalists as a tribe are not a defined category unlike members of Parliament or Supreme Court judges. I hope this formulation could be refined further as to be acceptable to various sections. Foreign Minister Yashwant Sinha gave the assurance that some specific steps will be finalised in response to our demand in the July meeting of foreign ministers. But we will have to continue with our lobbying. We should also be conscious of the hard work that is ahead before we pat ourselves on our back.

44


PM Thapa supports Gopal Prasad Thapaliya President SAFMA, Nepal

W

e the media-persons are facing identical problems all over South Asia and at the same time, striving hard to protect media and citizens' rights as well.

We have been active to make SAFMA popular among the journalists of Nepal and the South Asian region and mobilise journalists and media organisations in Nepal for the realisation of the objectives and goals of SAFMA. SAFMA has been raising the issue of free movement of people across the South Asian region. Our active lobbying in Nepal raised the issue of free flow of information and free movement of journalists with the government. Prime Minister Surya Bahadur Thapa has assured his support and Foreign Minister Bhekh Bahadur Thapa has promised that he would include the issue of free movement of journalists in his main address in the 12th Saarc Summit.

45


Train young journalists N. M. Ameen Organiser SAFMA, Sri Lanka

O

n behalf of SAFMA's Sri Lankan chapter, I extend my thanks to SAFMA Pakistan for organising this seminar. The efforts of SAFMA Sri Lanka have borne fruit and it gives me pleasure to inform you that our Ministry of Mass Communication has recommended the proposal made by our chapter to Mr. Raheem, the Secretary General of Saarc.

Our foreign minister has assured that Sri Lanka will welcome all the journalists and that they will get visas without any problem. The Indian foreign minister has also given the assurance that we will be able to get visas from next July without hassle. I think this is a great achievement by SAFMA. I have been requesting the SAFMA Secretariat to consider training our young journalists.

46


W

hile presenting its Proposed Protocol on Freedom of Information for Saarc and its member countries, South Asian Free Media Association (SAFMA) reiterates:

a) The right of freedom of information was recognised by the international community even before the adoption of the Universal Declaration of Human Rights when the UN General Assembly declared in a 1946 resolution that "freedom of information is a fundamental human right and ‌the touchstone of all the freedoms to which the UN is consecrated." b) The right to freedom of information has been guaranteed in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and in regional treaties, such as the Inter-American Declaration of Principles on Freedom of Expression, and the European Convention on Human Rights. c)

The Commonwealth, to which six Saarc states belong, has adopted a number of principles and guidelines on the right to know and freedom of information as a human right. The position taken by the Commonwealth is that "freedom of information should be guaranteed as a legal and enforceable right, permitting every individual to obtain records and information held by the executive, the legislative and any other body carrying out public functions." The Commonwealth recognises the importance of public access to official information both in promoting transparency and making governance accountable and in encouraging the full participation of citizens in the democratic process.

d) The adoption of freedom of information laws by a number of states and the experience of their implementation has led to definition of some basic principles that should determine the content of the right to information. These include the principles of maximum disclosure, states' obligation to publish records, promotion of open government, limited scope of exceptions, devising of processes that facilitate access to information, keeping the costs as low as possible if fees cannot be avoided, and protection for people who release information on wrong-doings SAFMA notes that nearly all Saarc countries have recognised the need for freedom of information laws but their initiatives need to be reinforced. For instance, in India, a Freedom of Information Bill has been pending before the parliament since 2000. The bill has been criticised for lack of affirmation of the people's fundamental right to information, the scope of disclosure of information by the state on its own is limited, the exemptions are excessive, wide discretion has been allowed to officials to withhold information, private bodies have been excluded from the purview of the proposed law, and there is no provision for independent oversight. A number of states in India have enforced freedom of information laws. They lack uniformity and are wanting in their scope. In Pakistan, the Freedom of Information Ordinance, promulgated in 2002, instead of removing the flaws and deficiencies in the earlier drafts, makes access to information extraordinarily difficult. The definition of public records has been diluted, the right to know has been made subject to entitlements and government instructions, the right to appeal against 47


refusal to provide information has been limited to instances of rejection of an applicant's entitlement, and no provision has been made for challenging decisions exempting public record from the principle of access to it or for a final appeal to a judicial forum against denial of information. In its present form, the ordinance neither accords with guarantees provided by the Constitution nor with the international human rights standards. In Sri Lanka, the government made a commitment in 1994 to guarantee the right to information in the form of an amendment to the constitution. Two years later, the Law Commission drafted an Access to Official Information Act. It had rejected the idea of maximum disclosure and provided for a large number of exceptions. Recently, the UNF cabinet has approved a bill on freedom of information that will come into force after one year. This is yet to be seen how far it is closer to the international standards and a Freedom of Information Bill that was a part of Colombo Declaration on Press Freedom and Social Responsibility to which the Newspapers Society, the Editors Guild and Free Media Movement were signatories. Bangladesh, Bhutan and Nepal are yet to develop legislation on the right to access information. In view of the foregoing, SAFMA appeals to the member countries of Saarc to consider its Proposed Model Law on Freedom of Information for South Asia and adopt it as a Saarc Protocol on Freedom of Information. This Proposed Protocol on Information has jointly been drafted by Article 19, Center for Policy Alternatives, Commonwealth Human Rights Initiative and Human Rights Commission of Pakistan and adopted by South Asian Free Media Association at its Saarc Journalists Summit, held at Rawalpindi, on January 3, 2004. The participants of the Saarc Journalists Summit also resolve to lobby with their governments, mobilise political parties, opinion and policy makers and respective civil societies for the adoption of this Proposed Protocol on Information for Saarc, by the Saarc, and as a model law by their respective legislatures and governments. The Proposed Protocol/Law on Freedom of Information is being attached as an annex to this representation. Proposed Protocol (Law) on Freedom of Information Introduction The right to information is guaranteed in international law. It is a part of the guarantee of freedom of expression in Article 19 of the International Covenant on Civil and Political Rights. Many countries around the world are now giving legal effect to the right, both by enshrining access to information in their constitutions and by adopting laws, which give practical effect to the right, providing concrete processes for its exercise. The Model Freedom of Information Law is based on best international practice, as reflected in the ARTICLE 19 publication, The Public's Rights to Know: Principles on Freedom of Information Legislation, as well as a number of freedom of information laws from around the world. It is intended to respond particularly to the freedom of information needs of the countries of South Asia, and as such reflects a common law drafting style. At the same time, it represents global standards in this area and, therefore, is also relevant to civil law countries. In this context, the term 'Protocol' is used to suggest that all countries should take this as a fixed template for their own legislation. Every country has different informational needs and different structures, and laws must be adapted accordingly. The term' Protocol' is used to signify that it is through a law incorporating the types of provisions set out here that maximum effect is given to practical disclosure of information, in accordance with the best standards on the right to know. The Model Freedom of Information Law (the Law) provides for an enforceable legal right to access information held by public bodies upon submission of a request. Everyone may claim this right, and both information and public bodies are defined broadly. The Law also provides for a more limited right to access information held by private bodies, where this is 48


necessary for the exercise or protection of any right. In this respect, it follows the South African legislation in recognising that private bodies hold much of important information, and that to exclude them from the ambit of the law would significantly undermine the right to information. In terms of process, the Law sets out a requirement for public bodies to appoint special information officers who have a duty to promote the objectives of the law. However, a request may be made to any officer of the relevant body. Requests must be responded to within 20 days, extendable to 40 days for large requests where compliance within the original time limit is not possible. Where information is required to safeguard life or liberty, it must be provided within 48 hours. An individual making a request may specify the form in which she/he would like the information to be provided. Fees may not exceed the actual cost of providing the information and may not be charged for personal or public interest requests. Crucially, the Law provides for the appointment of an independent Information Commissioner with the power to review any refusal to disclose and with a general mandate to promote the goals of the law. The Commissioner may both receive complaints and undertake his or her own monitoring. He or she may also require bodies to disclose information and even impose fines for wilful failures to comply with the law. Part III of the Law places a number of positive obligations on public bodies, including a requirement to publish certain types of information and to maintain their records in good order, in accordance with a Code of Practice to be published by the Commissioner. Part VI of the Law provides protection to whistleblowers, individuals who release information on wrongdoing, as long as they acted in good faith, in the reasonable belief that the information was substantially true and that it disclosed evidence of wrongdoing or a serious threat to health, safety or the environment. Finally, The Model Freedom of Information Law provides protection to those who disclose information in good faith pursuant to a request and, at the same time, imposes criminal liability on those who wilfully obstruct access to information or who destroy records. PART-I Definitions and Purpose Definitions I. In this Act, unless the context otherwise requires: (a) "commissioner" is the office of the Information Commissioner established by Part V, or the holder of that office, as the context may require; (b) "information officer" is an individual with specific responsibilities under this Act, required to be appointed by every public body pursuant to section 16(1); (c) "official" means any person employed by the relevant body, whether permanently or temporarily and whether parttime or full-time; (d) "minister" means the Cabinet minister responsible for the administration of justice; (e) "private body" has the meaning given by sub-section 6(3); (f) "public body" has the meaning given by sub-section 6(I) and (2); (g) "publish" means make available in a form generally accessible to members of the public and includes print, broadcast and electronic forms of dissemination; (h) "personal information" means information which relates to a living individual who can be identified from that information; and (i) "record" has the meaning given by section 7. Purpose 2. The purposes of this Act are 49


(a) to provide a right of access to information held by public bodies in accordance with the principles that such information should be available to the public, that necessary exceptions to the right of access should be limited and specific, and that decisions on the disclosure of such information should be reviewed independently of government; and (b) to provide a right of access to information held by private bodies where this is necessary for the exercise or protection of any right, subject only to limited and specific exceptions. PART - II The Right To Access Information held by Public and Private Bodies Freedom of information 3. Everyone shall have the right to freedom of information, including the right to access information held by public bodies, subject only to the provisions of this Act. General Right t o Access 4. (I) Any person making a request far information to a public body shall be entitled, subject only to the provisions of Parts II and IV of this Act: (a) to be informed whether or not the public body holds a record containing that information or from which that information may be derived; and (b) if the public body does hold such a record, to have that information communicated to him or her. (2) Any person making a request for information to a private body which holds information necessary for the exercise or protection of any right shall, subject only to the relevant provisions of Parts II and IV of this Act, be entitled to have that information communicated to him or her. Legislation Prohibiting or Restricting Disclosure 5. (I) This Act applies to the exclusion of any provision of other legislation that prohibits or restricts the disclosure of a record by a public or private body. (2) Nothing in this Act limits or otherwise restricts the disclosure or information pursuant to any other legislation, policy or practice. Public and Private Bodies 6. (I) For purposes of this Act, a public body includes any body: (a) established by or under the Constitution; (b) established by statute; (c) which forms part of any level or branch of Government; (d) owned, controlled or substantially financed by funds provided by Government or the State; or (e) carrying out a statutory or public function, provided that the bodies indicated in sub-section (I) (e) are public bodies only to the extent of their statutory or public functions. (2) The Minister may by order designate as a public body any body that carries out a public function, (3) For purposes of this Act, a private body includes any body excluding a public body that: (a) carries on any trade, business or profession, but only in that capacity; or (b) has legal personality. Records 7. (I) For purposes of this Act, a record includes any recorded information, regardless of its form, source, date of creation, or official status, whether or not it was created by the body that holds it and whether or not it is classified, (2) For purposes of this Act, a public or private body holds a record if: (a) the public or private body holds the record, other than on behalf of another person; or 50


(b) another person holds the record, on behalf of the public or private body. Request for Information 8. (I) For purposes of section 4, a request for information is a request in writing to any official of a public or private body that is in sufficient detail to enable an experienced official to identify, with reasonable effort whether or not the body holds a record with that information, (2) Where a request for information pursuant to section 4(1) does not comply with the provisions of sub-section (I), the official who receives the request shall, subject to subsection (5), render such reasonable assistance, free of charge, as may be necessary to enable the request to comply with sub-section (I), (3) An individual who is unable, because of illiteracy or disability, to make a written request for information pursuant to section 4(I) may make an oral request, and the official who receives an oral request shall, subject to sub-section (5), reduce it to writing, including their name and position within the body, and give a copy thereof to the person who made the request. (4) A request for information under section 4(2) must identify the right the person making the request is seeking to exercise or protect and the reasons why the information is required to exercise or protect that right. (5) An official who receives a request for information may transfer that request to the Information Officer for purposes of complying with sub-sections (2) and/or (3). (6) A public or private body may prescribe a form for requests for information, provided that such forms do not unreasonably delay requests or place an undue burden upon those making requests, (7) A public or private body which receives a request for information shall provide the requester with a receipt documenting the request. Time Limits for Responding to Requests 9. (I) Subject to sub-section (3), a public or private body must respond to a request for information pursuant to section 4 as soon as is reasonably possible and in any event within twenty working days of receipt of the request. (2) Where a request for information relates to information which reasonably appears to be necessary to safeguard the life or liberty of a person, a response must be provided within 48 hours. (3) A public or private body may, by notice in writing within the initial twenty day period, extend the period in sub-section (I) to the extent strictly necessary, and in any case to not more than forty working days, where the request is for a large number of records or requires a search through a large number of records, and where compliance within twenty working days would unreasonably interfere with the activities of the body, (4) Failure to comply with sub-section (I) is deemed to be a refusal of the request. Notice of Response 10. (I) The response under section 9 to a request for information pursuant to section 4(I) must be by notice in writing and state: (a) the applicable fee, if any, pursuant to section II, in relation to any part of the request which is granted, and the form in which the information will be communicated; (b) adequate reasons for the refusal in relation to any part of the request which is not granted, subject only to Part IV of this Act; (c) in relation to any refusal to indicate whether or not the public body holds a record containing the relevant information, the fact of such refusal and adequate reasons for it; and (d) any right of appeal the person who made the request may have. (2) The response under section 9 to a request for information pursuant to section 4(2) must be by notice in writing and state: (a) in relation to any part of the request which is granted, the applicable fee, if any, pursuant to section II, and the form in which the information will be communicated; and 51


(b) in relation to any part of the request which is not granted, adequate reasons for the refusal. (3) In relation to any part of a request that is granted, communication of the information must take place forthwith, subject only to Section II. Fees 11. (I) The communication of information pursuant to a request under section 4 by a public or private body may, subject to subsections (2) and (3), be made conditional upon payment by the person making the request of a reasonable fee, which shall not exceed the actual cost of searching for, preparing and communicating the information. (2) Payment of a fee shall not be required for requests for personal information, and requests in the public interest. (3) The Minister may, after consultation with the Commissioner, make regulations providing: (a) for the manner in which fees are to be calculated; (b) that no fee is to be charged in prescribed cases; and (c) that any fee cannot exceed a certain maximum, (4) A public body shall not require payment of a fee under sub-section (I) where the cost of collecting that fee would exceed the amount of the fee, Means of Communicating Information 12. (I) Where a request indicates a preference as to the form of communication of information contained in sub-section (2), a public or private body communicating information pursuant to a request for information under section 4 shall, subject to subsection (3), do so in accordance with that preference. (2) A request may indicate the following preferences as to the form of communication of information: (a) a true copy of the record in permanent or other form; (b) an opportunity to inspect the record, where necessary using equipment normally available to the body; (c) an opportunity to copy the record, using his or her own equipment; (d) a written transcript of the words contained in a sound or visual form; (e) a transcript of the content of a record, in print, sound or visual form, where such transcript is capable of being produced using equipment normally available to the body; or (f) a transcript of the record from shorthand or other codified form. (3) A public or private body shall not be required to communicate information in the form indicated by the person making the request where to do so would: (a) unreasonably interfere with the effective operation of the body; or (b) be detrimental to the preservation of the record. (4) Where a record exists in more than one language, communication of the record shall, from among those languages, be given in accordance with the language preference of the person making the request. If a Record is not held 13. (I) Where an official who receives a request pursuant to section 4(I) believes that that request relates to information that is not contained in any record held by the public body, the official may transfer the request to the Information Officer for purposes of compliance with this section. (2) Where an Information Officer receives a request pursuant to sub-section (I), he or she shall confirm whether or not the public body does hold a record containing the information and, if it does not, shall, if he or she knows of another public body which does hold the relevant record, as soon as practicable, either: (a) transfer the request to that public body and inform the person making the request of such transfer; or (b) indicate to the person making the request which public body holds the relevant record, whichever would be likely to ensure more rapid access to the information. (3) Where a request is transferred pursuant to sub-section (2)(a), the time limit for responding to requests under section 9 shall begin to run from the date of transfer. 52


(4) A private body which receives a request pursuant to section 4(2) relating to information that is not contained in any record held by the private body shall notify the requester that it does not hold the information. Vexatious, Repetitive or Unreasonable Requests 14. (I) A public or private body is not required to comply with a request for information which is vexatious or where it has recently complied with a substantially similar request from the same person. (2) A public or private body is not required to comply with a request for information where to do so would unreasonably divert its resources. PART- III Measures to Promote Openness Guide to Using the Act 15. (I) The Commissioner shall, as soon as practicable, compile in each official language a clear and simple guide containing practical information to facilitate the effective exercise of rights under this Act, and shall disseminate the guide widely in an accessible form. (2) The guide in sub-section (I) shall be updated on a regular basis, as necessary. Information Officer 16. (1) Every public body shall appoint an Information Officer and ensure that members of the public have easy access to relevant information concerning the Information Officer, including his or her name, function and contact details. (2) The Information Officer shall, in addition to any obligations specifically provided for in other sections of this Act, have the following responsibilities: (a) to promote within the public body the best possible practices in relation to record maintenance, archiving and disposal; and (b) to serve as a central contact within the public body for receiving requests for information, for assisting individuals seeking to obtain information and for receiving individual complaints regarding the performance of the public body relating to information disclosure. Duty to Publish 17. Every public body shall, in the public interest, publish and disseminate in an accessible form, at least annually, key information including but not limited to: (a) a description of its structure, functions, duties and finances; (b) relevant details concerning any services it provides directly to members of the public; (c) any direct request or complaints mechanisms available to members of the public regarding acts or a failure to act by that body, along with a summary of any requests, complaints or other direct actions by members of the public and that body's response; (d) a simple guide containing adequate information about its record-keeping systems, the types and forms of information it holds, the categories of information it publishes and the procedure to be followed in making a request for information; (e) a description or the powers and duties of its senior officers, and the procedure it follows in making decisions; (f) any regulations, policies, rules, guides or manuals regarding the discharge by that body of its functions; (g) the content of all decisions and/or policies it has adopted which affect the public, along with the reasons for them, any authoritative interpretations of them, and any important background material; and (h) any mechanisms or procedures by which members of the public may make representations or otherwise influence the formulation of policy or the exercise of powers by that body.

53


Guidance on Duty to Publish 18. The Commissioner shall: (a) publish a guide on minimum standards and best practices regarding the duty of public bodies to publish pursuant to section 17; and (b) upon request, provide advice to a public body regarding the duty to publish. Maintenance of Records 19. (I) Every public body is under an obligation to maintain its records in a manner which facilitates the right to information, as provided for in this Act, and in accordance with the Code of Practice stipulated in sub-section (3). (2) Every public body shall ensure that adequate procedures are in place for the correction of personal information. (3) The Commissioner shall, after appropriate consultation with interested parties, issue and from time to time update a Code of Practice relating to the keeping, management and disposal of records, as well as the transfer of records to the [insert relevant archiving body, such as the Public Archives]. Training of Officials 20. Every public body shall ensure the provision of appropriate training for its officials on the right to information and the effective implementation of this Act. Reports to the Information Commissioner 21. The Information Officer of every public body shall annually submit to the Commissioner a report on the activities of the public body pursuant to, or to promote compliance with, this Act, which shall include information about: (a) the number of requests for information received, granted in full or in part, and refused; (b) how often and which sections of the Act were relied upon to refuse, in part or in full, requests for information; (c) appeals from refusals to communicate information; (d) fees charged for requests for information; (e) its activities pursuant to section 17 (duty to publish); (f) its activities pursuant to section 19 (maintenance of records); and (g) its activities pursuant to section 20 (training of officials). PART-IV Exceptions Public Interest Override 22. Notwithstanding any provision in this Part, a body may not refuse to indicate whether or not it holds a record, or refuse to communicate information, unless the harm to the protected interest outweighs the public interest in disclosure. Information Already Publicly Available 23. Notwithstanding any provision in this Part, a body may not refuse to communicate information where the information is already publicly available. Severability 24. If a request for information relates to a record containing information which, subject to this Part, falls within the scope of an exception, any information in the record which is not subject to an exception shall, to the extent it may reasonably be severed from the rest of the information, be communicated to the requester. Personal Information 25. (I) A body may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do 54


so would involve the unreasonable disclosure of personal information about a natural third party. (2) Sub-section (I) does not apply if: (a) the third party has effectively consented to the disclosure of the information; (b) the person making the request is the guardian of the third party, or the next of kin or the executor of the will of a deceased third party; (c) the third party has been deceased for more than 20 years; or (d) the individual is or was an official of a public body and the information relates to his or her function as a public official. Legal Privilege 26. A body may refuse to indicate whether or not it holds a record, or refuse to communicate information, where the information is privileged from production in legal proceedings, unless the person entitled to the privilege has waived it. Commercial and Confidential Information 27. A body may refuse to communicate information if: (a) the information was obtained from a third party and to communicate it would constitute an actionable breach of confidence; (b) the information was obtained in confidence from a third party and: i. it contains a trade secret; or ii. to communicate it would, or would be likely to, seriously prejudice the commercial or financial interests of that third party; or (c) the information was obtained in confidence from another State or international organisation, and to communicate it would, or would be likely to, seriously prejudice relations with that State or international organisation. Health and Safety 28. A body may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do so would, or would be likely to, endanger the life, health or safety of any individual. Law Enforcement 29. A body may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do so would, or would be likely to, cause serious prejudice to: (a) the prevention or detection of crime; (b) the apprehension or prosecution of offenders; (c) the administration of justice; (d) the assessment or collection of any tax or duty; (e) the operation of immigration controls; or (f) the assessment by a public body of whether civil or criminal proceedings, or regulatory action pursuant to any enactment, would be justified. Defence and Security 30. A body may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do so would, or would be likely to, cause serious prejudice to the defence or national security of [insert name of State]. Public Economic Interests 31. (I) A body may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do so would, or would be likely to, cause serious prejudice to the ability of the government to manage the economy of [insert name of State]. 55


(2) A body may refuse to indicate whether or not it holds a record or refuse to communicate information, where to do so would, or would be likely to, cause serious prejudice to the legitimate commercial or financial interests of a public body. (3) Sub-sections (I) or (2) do not apply insofar as the request relates to the results of any product or environmental testing, and the information concerned reveals a serious public safety or environmental risk. Policy Making and Operations of Public Bodies 32. (I) A body may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do so would, or would be likely to: (a) cause serious prejudice to the effective formulation or development of government policy; (b) seriously frustrate the success of a policy, by premature disclosure of that policy; (c) significantly undermine the deliberative process in a public body by inhibiting the 1ive and frank provision of advice or exchange of views; or (d) significantly undermine the effectiveness of a testing or auditing procedure used by a public body. (2) Sub-section (I) does not apply to facts, analyses of facts, technical data or statistical information. Time Limits 33. (I) The provisions of sections 26-31 apply only inasmuch as the harm they envisage would, or would be likely to, occur at or after the time at which the request is considered. (2) Sections 27(c), 29, 30 and 31 do not apply to a record which is more than 30 years old. PART -V The Information Commissioner Appointment of the Information Commissioner 34. (I) The Commissioner shall be appointed by the [insert head of State] after nomination by a two-thirds majority vote of [insert name of legislative body or bodies], and after a process in accordance with the following principles: (a) participation by the public in the nomination process; (b) transparency and openness; and (c) the publication of short-listed candidates. (2) No one may be appointed Commissioner if he or she: (a) holds a public office, or is an employee of a political party, or holds an elected or appointed position in central or local government; or (b) has been convicted, after due process in accordance with internationally accepted legal principles, of a violent crime and/or a crime of dishonesty or then, for which he or she has not been pardoned. (3) The Commissioner shall hold office for a term of seven years, and may be re-appointed to serve a maximum of two terms, but may be removed by the [insert head of State] upon a recommendation passed by a two-thirds majority vote of [insert name of legislative body or bodies]. Independence and Powers 35. (I) The Commissioner shall enjoy operational and administrative autonomy from any other person or entity, including the government and any of its agencies, except as specifically provided for by law. (2) The Commissioner shall have all powers, direct or incidental, as are necessary to undertake his or her functions as provided for in this Act, including full legal personality, and the power to acquire, hold and dispose of property. Salary and Expense 36. The Commissioner shall be paid a salary equal to the salary of a judge of the Supreme Court [insert name of appropriate court] and is entitled to be paid reasonable travel and living expenses incurred in the performance of his 56


or her duties. Staff 37. The Commissioner may appoint such officers and employees as are necessary to enable him or her to perform his or her duties and functions. General Activities 38. In addition to any other powers and responsibilities provided for in this Act, the Commissioner may: (a) monitor and report on the compliance by public bodies with their obligations under this Act: (b) make recommendations for reform both of a general nature and directed at specific public bodies; (c) co-operate with or undertake training activities for public officials on the right to information and the effective implementation of this Act; (d) refer to the appropriate authorities cases which reasonably disclose evidence of criminal offences under this Act: and (e) publicise the requirements of this Act and the rights of individuals under it. Reports 39. (I) The Commissioner shall, within three months after the termination of each financial year, lay before [insert name of legislative body or bodies] an annual report on compliance by public bodies with this Act, the activities of his or her office and audited accounts of the office during that financial year. (2) The Commissioner may from time to time lay before [insert name of legislative body] such other reports as he or she deems appropriate. Protection of the Commissioner 40. (I) No criminal or civil proceedings lie against the Commissioner or against any person acting on behalf of or under the direction or the Commissioner, for anything done, reported or said in good faith in the course of the exercise of any power or duty under this Act. (2) For the purposes of the law of libel or slander, anything said or any information supplied pursuant to an investigation under this Act is privileged, unless that information is shown to have been said or supplied with malice. PART-VI Enforcement by the Commissioner Complaint to the Commissioner 41. A person who has made a request for information may apply to the Commissioner for a decision that a public or private body has failed to comply with an obligation under Part II, including by: (a) refusing to indicate whether or not it holds a record, or to communicate information, contrary to section 4; (b) failing to respond to a request for information within the time limits established in section 9; (c) failing to provide a notice in writing of its response to a request for information, in accordance with section 10; (d) failing to communicate information forthwith, contrary to section 10(3); (e) charging an excessive fee, contrary to section II; or (f) failing to communicate information in the form requested, contrary to section 12. Complaint Decision 42. (I) The Commissioner shall, subject to sub-section (2), decide an application under section 41 as soon as is reasonably possible, and in any case within 30 days, after giving both the complainant and the relevant public or private body an opportunity to provide their views in writing. (2) The Commissioner may summarily reject applications: (a) which are frivolous, vexatious or clearly unwarranted: or 57


(b) where the applicant has failed to use any effective and timely internal appeals mechanisms provided by the relevant public or private body. (3) In any application under section 41, the burden of proof shall be on the public or private body to show that it acted in accordance with its obligations under Part II. (4) In his or her decision pursuant to sub-section (I), the Commissioner may: (a) reject the application; (b) require the public or private body to take such steps as may be necessary to bring it into compliance with its obligations under Part II; (c) require the public body to compensate the complainant for any loss or other detriment suffered; and/or (d) in cases of egregious or wilful failures to comply with an obligation under Part II, impose a fine on the public body. (5) The Commissioner shall serve notice of his or her decision, including any rights of appeal, on both the complainant and the public or private body. Direct Implementation of Decision 43. (I) The Commissioner may, after giving a public body an opportunity to provide their views in writing, decide that a public body has failed to comply with an obligation under Part III. (2) In his or her decision pursuant to sub-section (1), the Commissioner may require the public body to take such steps as may be necessary to bring it into compliance with its obligations under Part III, including by: (a) appointing an information officer; (b) publishing certain information and/or categories of information; (c) making certain changes to its practices in relation to the keeping, management and destruction of records, and/or the transfer of records to the [insert relevant archiving body. such as the Public Archives]; (d) enhancing the provision of training on the right to information for its officials; (e) providing him or her with an annual report, in compliance with section 21; and/or (f) in cases of egregious or wilful failures to comply with an obligation under Part III, paying a fine. (3) The Commissioner shall serve notice of his or her decision, including any rights of appeal, on the public body. Commissioner's Power to Investigate 44. (I) In coming to a decision pursuant to section 42 or 43, the Commissioner shall have the power to conduct a full investigation, including by issuing orders requiring the production of evidence and compelling witnesses to testify. (2) The Commissioner may, during an investigation pursuant to sub-section (I), examine any record to which this Act applies, and no such record may be withheld from the Commissioner on any grounds. Appeal from Commissioner's Decisions and Orders 45. (I) The complainant, or the relevant public or private body, may, within 45 days, appeal to the court for a full review of a decision of the Commissioner pursuant to section 42 or 43, or an order pursuant to section 44(I). (2) In any appeal from a decision pursuant to section 42, the burden of proof shall be on the public or private body to show that it acted in accordance with its obligations under Part II. Binding Nature of Commissioner's Decisions and Orders 46. Upon expiry of the 45-day period for appeals pursuant to section 45, the Commissioner may certify in writing to the court any failure to comply with a decision pursuant to section 42 or 43, or an order pursuant to section 44(I), and the court shall consider such failure under the rules relating to contempt of court. PART-VII Whistleblowers 47. (1) No one may be subject to any legal, administrative or employment related sanction, regardless of any breach of a 58


legal or employment obligation, for releasing information on wrongdoing, or that which would disclose a serious threat to health, safety or the environment, as long as they acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing or a serious threat to health, safety or the environment. (2) For purposes of sub-section (1), wrongdoing includes the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or serious maladministration regarding a public body. PART-VIII Criminal and Civil Responsibility' Good Faith Disclosures 48. No one shall be subjected to civil or criminal action, or any employment detriment, for anything done in good faith in the exercise, performance or purported performance of any power or duty in terms of this Act, as long as they acted reasonably and in good faith. Criminal Offences 49 (1) It is a criminal offence to wilfully: (a) obstruct access to any record contrary to Part II of this Act; (b) obstruct the performance by a public body of a duty under Part III of this Act; (c) interfere with the work of the Commissioner; or (d) destroy records without lawful authority. (2) Anyone who commits an offence under sub-section (I) shall be liable on summary conviction to a fine not exceeding insert appropriate amount] and/or to imprisonment for a period not exceeding two years. PART - IX Miscellaneous Provisions Regulations 50. (I) The Minister may, by notice in the Gazette [or insert name of appropriate publication] and after consultation with the Commissioner make regulations regarding: (a) additional forms of communication of information under section 12(2); (b) training of officials under section 20; (c) reports to the Commissioner under section 21; (d) any notice required by this Act; or (e) any administrative or procedural matter necessary to give effect to this Act. (2) Any regulation under sub-section (I) must, before publication in the Gazette, be laid before [insert name of legislative body or bodies]. Interpretation 51. When interpreting a provision of this Act, every court must adopt any reasonable interpretation of the provision that best gives effect to the right to information. Short Title and Commencement 52. (I) This Act may be cited as the Right to Information Act [insert relevant year]. (2) This Act shall come into effect on a date proclaimed by [insert relevant individual, such as president, prime minister or minister] provided that it shall automatically come into effect six months after its passage into law if no proclamation is forthcoming. 59


December 10, 2003

60


Arrival of Foreign Ministers

61


Glimpses of receptions

62


Secretary General SAFMA presented letters addressed to the foreign ministers of member countries of Saarc at a reception for Foreign Minister Khurshied Mehmood Kasuri and High Commissioners of India, Bangladesh, Sri Lanka and Ambassador of Nepal on January 22, 2004. The letter reminds the foreign ministers of their obligation to fulfil their commitment to consider SAFMA's protocol on free movement of journalists and media-products at the next Saarc Council of Ministers meeting and evolve a mechanism for a liberal visa regime.

63

Profile for South Asian Media Net

Saarc Journalist Summit  

Access to and Free Flow of Information

Saarc Journalist Summit  

Access to and Free Flow of Information

Advertisement