Myanmar: Draft right to information law needs adequate public consultation

Myanmar: Draft right to information law needs adequate public consultation - Transparency

A customer looks at a new design for the Burmese flag on sale in Rangoon (Yangon). The Burmese government have recently introduced a new Burmese flag as part of the 2010 election process.

ARTICLE 19 calls on the incoming Myanmar government to continue toward the adoption of right to information in the country, in order as a tool to tackle chronic impunity and corruption, but do so by ensuring an adequate period of consultation with civil society, in which NGOs can disseminate the bill proposed by the Ministry of Information and seek feedback and suggestions nationwide.

“A well-written and implemented right to information law in Myanmar will be an important tool to tackle chronic levels of impunity and corruption in public administration. It’s vital that the new government led by Aung San Suu Kyi does not repeat the mistake of the previous government, which adopted three media laws without adequate public consultations, public support, and public legitimacy,” said Thomas Hughes, ARTICLE 19 Executive Director.

“We urge the new National League for Democracy government to consult with civil society widely prior to adopting it. The government should not wait for adoption however, and should begin immediately to prioritise transparency by instructing public officials to start proactively disclosing basic information. In 2016, it’s unacceptable that people visiting a Myanmar hospital for example, cannot even see a list of available services,” he added.1

The right to information is an important tool for ensuring people can hold their leaders accountable for decisions made that will affect their lives. Information is critical to development because without access to it, governments can make poor decisions or conduct corrupt practices. Putting information in the hands of the people ensures that they themselves can be a catalyst for ensuring their own development. This has been recognised in the 2015 creation of the global Sustainable Development Goals, which include a specific target on access to information for all countries to meet.
ARTICLE 19 has reviewed the text of the draft law put forward by the Ministry of Information, comparing it to international standards and best practices. The draft law has a number of positive aspects that would make it a good law, however, these are undermined by provisions that if not changed, would significantly reduce the effect of the law.

Positive aspects of the draft law

  • It overrides all other laws that block access to information, which is a provision used in many good laws to ensure that there is no confusion between laws
  • It applies to all bodies that use public funds
  • It requires responses to requests within 15 days, which is comparatively quick in Asia
  • It includes strong sanctions that will punish officials who try to block the release of information
  • It includes fairly broad obligations for proactive publication of information.

Negative aspects of the draft law

The draft law has a number of important problems that need addressing through the consultation process.

  • Overly broad and unclear exemptions. The draft does not define exemptions properly and includes exemptions that are not acceptable under international standards. For example, ‘national security’ is not defined and could therefore include virtually anything. The exemption for protection of liberty of ‘prominent persons’ will only hide those most likely to be powerful and corrupt. The draft includes no consideration of the public interest, which would lead to information on corruption, theft, threats to the environment or violations of human rights remaining hidden. The exemptions should be revised so that only information which is likely to cause serious harm is withheld, which can be overridden if there is a public interest in making it public.
  • No viable appeals mechanism. The draft only allows for internal appeals and appeals to a court. However, internal appeals are unlikely to be decided independently and the Myanmar courts are slow, inexpert and expensive. The law should create an independent body (in line with the Paris Principles on National Human Rights Institutes) which can hear appeals and monitor the functioning of the law.
  • Potentially expensive costs. The draft has no limit on what public officials can charge those asking for information, which could be a major deterrent to applicants. The law should limit the costs to the actual reproduction and waive fees for those the most financially marginalised.
  • Colonial offence of ‘disturbing public officials’ in the exercise of their duties. This Penal Code offence is used in Myanmar to punish journalists and human rights defenders asking questions of public officials that would disclose corruption
  • Limits the right to citizens only. Under international law, all persons have a right to information. This is likely to be used to limit access to information for Myanmar’s many ethnic minorities, or those marginalised groups who are not registered for discriminatory or economic reasons. The right should be for all persons, natural and legal.

[1] ARTICLE 19 has conducted a review of women’s access to information in hospitals with findings published in its report ‘Censored Gender’