Articles
Nikhil Dongol
Published 2021-03-30
Keywords
- Access to Information, Right to Information, Proactive Disclosure, Local Government websites.
How to Cite
Dongol, N. . (2021). A Study on the Proactive Disclosure in Local Government Websites in Nepal. Kathmandu School of Law Review, 9(1), 65–78. Retrieved from https://kslreview.org/index.php/kslr/article/view/2207
Abstract
Access to Information of a citizen is an essential aspect of democracy. It is taken as a fundamental right of a citizen and a necessary precursor of a responsible, transparent and accountable government to maintain rule of law in a country both politically as well as economically. There are essentially three stakeholders in access to information viz. demand-side general peoples, supply-side public entity, and various organizations as facilitators. Realizing this crucial interplay between citizen, public entity, and access to information, this paper explores various laws, jurisprudence, and practices to enhance the general understanding on the demand side. This paper analyses the websites of 17 local governments (metropolitan and sub-metropolitan cities) of Nepal in relation to legally mandated 20 indicators of proactive disclosure of Access to Information. However, this paper does not attempt to provide a blueprint for implementation of the policies of Access to Information due to the diversity of situations in different governance rather would highlight the present condition of proactive disclosure, loopholes, and the ways that can enhance the disclosure practices in local governments in Nepal.
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References
2 Manzoor Laskar, 'Summary of Social Contract Theory by Hobbes, Locke and Rousseau', SSRN, 2013 available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2410525 accessed on 23 August 2021; Musa El-Thani Muhammad & Titus Utibe Monday, ' Social Contract Theories of Hobbes, Locke ,and Rousseau: An Extrapolation of Point of Harmony and Tensions', Educational Resurgence Journal, p.123, volume 2:4, 2020, p. 126.
3 Gary J. Miller, 'The Political Evolution of Principal-Agent models', Annual Review of Political Science, p. 203, volume 8, 2005; Glynn Cochrane, Max Weber's Vision for Bureaucracy, Palgrave Macmillan, Australia, 2018, p. 113.
4 Taranath Dahal & Pramod Bhattarai, Handbook on Right to Information, Freedom Forum, 2020.
5 Vinaya Kasajoo, 'Right to Information in Nepal', GRM International, December 2013 available at http://www.cmr.org.np/esp_rti_policy_brief.pdf accessed on 23 August 2021.
6 Kathmandu, Bharatpur, Biratnagar, Pokhara, Lalitpur, Birganj, Janakpur, Ghorahi, Hetauda, Dhangadhi, Tulsipur, Itahari, Nepalgunj, Butwal, Dharan, Kalaiya, Jitpur Simara Government of Nepal, 2021, available at https://kathmandu.gov.np, https://bharatpurmun.gov.np/ne , https://biratnagarmun.gov.np/ne, https://www.pokharamun.gov.np, https://lalitpurmun.gov.np, https://birgunjmun.gov.np/ne, https://janakpurmun.gov.np/ne, https://ghorahimun.gov.np, https://www.hetaudamun.gov.np/ne, https://dhangadhimun.gov.np, https://tulsipurmun.gov.np/ne, https://itaharimun.gov.np/ne, https://nepalgunjmun.gov.np, https://butwalmun.gov.np, https://www.dharan.gov.np, https://kalaiyamun.gov.np/ne, https://jeetpursimaramun.gov.np/ne accessed on 27 December 2020.
7 Hossain Supti, 'Right to access Information', The Daily Star, Bangladesh, 10 November 2020.
8 Calling of an international conference of Freedom of information, 14 December 1946, UNGA A/RES/59, Cl. no 59 (1) states that Freedom of information is a fundamental human right and … the touchstone of all the freedoms to which the UN is consecrated;
9 International Bill of Human Rights, 10 December 1948, UNGA A/RES/217A(III) ["UDHR"].
10 International Covenant on Civil and Political Rights, 23 March 1976, 999 UNTS 331, New York, 16 December 1966 ["ICCPR"]; Javaid Rehman, International Human Rights Law ICCPR 1966, Longman Pub Group, London, 2nd edition, 2010, p.106.
11 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, NP Engel Publisher, Germany, 2nd edition, 2005, p. 445.
12 Freedom of the Press Act, 1766, Sweden.
13 'Right to Information laws: Where do we stand', DW Akademie, 24 May 2019 available at https://www.dw.com/en/right-to-information-laws-where-do-we-stand/a-48812029 accessed on 23 August 2021.
14 For instance, the right to information is constitutionally protected by Article 27 of the Constitution of Nepal, 2015 in Nepal and by Article 19A of the Constitution, it is inserted via the 18th Amendment in 2010 in Pakistan. The Apex Court of India in a catena of its judgments has also recognised the right to information as an integral part of Article 19(1)(a) and Article 21 of the Constitution of India, 1950. In the Constitution Bench of the Apex Court of India in State of Uttar Pradesh v. Raj Narain, Justice Mathew has recognised the necessity of the right to know for good governance and freedom of speech and expression. The Apex Court of India held: “The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security.” In Bangladesh, the right to information is considered to be a part of freedom of thought, conscience, and speech guaranteed by Article 39(1) of the Constitution. The Afghan Constitution, 2004 under Article 50 has recognised access to information as an integral part of good governance. Afghanistan has also enacted the Access to Information Law in 2014 in consonance with Article 50 of the Constitution. The 19thAmendment to the Constitution of Sri Lanka, 2015 under Article 14A has recognised the right to information as a fundamental right of citizens with effect from May 15, 2015. The Constitution of Maldives, 2008 under Article 61(d) also stipulates that every citizen has the right to obtain all information possessed by the government. Article 7(3) of Bhutan's Constitution of 2008 provides that a Bhutanese citizen shall have the right to information.
15 Constitution of People's Republic of Bangladesh, Bangladesh, 1972, art. 39(2); Nepal ko Sambidhan (Constitution of Nepal), art. 17(2)(a); The Constitution of India, India, 1950, art. 19; The Constitution of the Islamic Republic of Pakistan, Pakistan, 1973, art.19; Afghanistan's Constitution of 2004, Afghanistan, 2004, art. 34; Bhutan's Constitution of 2008, Bhutan, 2008, art. 7(2); Maldives's Constitution of 2008, Maldives, 2008, art. 27; The Constitution of the Democratic Socialist Republic of Sri Lanka, Sri Lanka, 1978, art 14.
16 Maneka Gandhi v Union of India, Supreme Court of India, 1978, AIR 597; Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic set-up. If democracy means the government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his rights of making a choice, free & general discussion of public matters is absolutely essential.
17 The Secretary, Ministry of Information and Broadcasting vs. Cricket Association of Bengal, Supreme Court of India, 1995, SCC 161.
18 Constitution of Bangladesh, Bangladesh, 1972, art. 19(2); Nepal ko Sambidhan (Constitution of Nepal), art. 17(2)(f) explanatory clause (1)(2)(3)(4)(5)(6); The Constitution of India, India, 1950, art. 19(2).
19 The Penal Code of respective countries; The Digital Security Act, 2018, Bangladesh; The Communicable Diseases (Prevention, Control and Eradication) Act, 2018, Bangladesh and the Disaster Management Act, 2012, Bangladesh.
20 Nepal ko Sambidhan (Constitution of Nepal), proviso; ICCPR (n 10), art. 3; Suchanako Hak sambandhi Niyamawali (Right to Information Rules 2065), Nepal, Rule 3(3).
21 It is on the public interest for the restriction of access to information. Amar Nath Singh v. National Information Commission, Kathmandu and others, DN 10474, NKP 2077.
22 The Right to Information Act, 2005, India; the RTI Act, 2014, Maldives; the RTI Act, 2016, Sri Lanka; the RTI Act, 2007, Nepal; the RTI Act, 2009, Bangladesh; the Access to Information Law, 2014, Afghanistan; the Pakistan RTI Ordinance, 2002, Pakistan and various provincial RTI laws; and the RTI Bill. 2013, Bhutan has been some of the initiatives in empowering citizens and other specified parties to secure the right to access information in the public governance.
23 RTI Act, 2009, Bangladesh, s. 6; the Right to Information Act, 2005, India, s 4; the RTI Act, 2007, Nepal, ss. 3 and 5 ["RTI Act"]; the Pakistan RTI Ordinance, 2002, Pakistan, ss. 5; Sri Lanka’s Right to Information Act, 2016, Sri Lanka (Cl 7-9 deal with the proactive disclosure of public information in the public domain); Afghanistan’s Access to Information Law, 2014, Afghanistan (Arts 4 and 14 provide for suo moto disclosure), Maldives RTI Act, 2014, Maldives (s 37 provides for pro-active disclosure), Bhutan’s Right to Information Bill, 2013, Bhutan (Cl 10-17 provides for proactive disclosure of information in the public domain); The Provincial Laws of Pakistan such as the Punjab RTI Act, 2013, Pakistan, s. 4; the Baluchistan and Sindh Freedom of Information Laws, 2006, Pakistan, s. 5.
24 The NIC also said it penalised 24 officials for their failure to implement its directives with regard to the dissemination of information, in 2019-20. Despite such legal provisions, 90 out of 120 offices were found not complying with the provision on the proactive disclosure of information during the study.
25 Nepal Adhirajya ko Sambidhan 2047 (Constitution of Kingdom of Nepal 1990), Nepal, art. 16.
26 UDHR (n 9); ICCPR (n 10), art. 19; International Conference of Information Commissioners (ICIC); Budapest Declaration on the Right to Access to Information; Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters; Maputo Declaration Fostering Freedom of Expression, Access to Information and Empowerment of people; Freedom of Information Resolution, India, 2010.
27 Principle of maximum disclosure, principle of proactive disclosure and principle of public interest overriding, ten principles of the Right to Know.
28 Suchanako Hak Sambandhi Ain 2064 (Right to Information Act 2007), Nepal, art. 3. ["RTI Act"]
29 Nepalko Sambidhan (Constitution of Nepal), art. 27.
30 Ibid, art. 217.
31 Ibid, Article 50(1) [Directive Principles of State]
32 Bhim Raj Adhikari v. National Information Commission et al., DN 8594, NKP 2068.
33 Ibid.
34 Amar Nath case (n 21)
35 Nijamati Sewa Ain 2049 (Civil service act 1993), art 24(6)(c); Sanghiye Nijamati Sewako gathan, sanchalan ra Sewaka sartsambandhi byabastha garna baneko bidheyek 2076 (Federal Civil Service Act 2020). s.32 (13)
36 Kritinath Sharma et al. v. Office of PM and Council of Minister, Kathmandu, DN 10524, NKP 2077; This information should be available on the websites as per Lakshit Pariwarlai Rahat Upalabda garaune Margadarshan, 2076 (Ration Distribution Guideline 2020)
37 'The RTI Rating: Nepal', Centre for Law and Democracy, 2018-19 available at https://www.rti-rating.org/country-detail/?country=Nepal accessed on 11 March 2021.
38 Nepal got 113 marks out of 150.
39 Himalayan News Services, 'Government offices told to abide by Right to Information Act', The Himalayan Times, 30 September 2020 available at https://thehimalayantimes.com/kathmandu/govt-offices-told-to-abide-by-right-to-information-act accessed on 11 March 2021.
40 6 metropolitan cities include: Kathmandu, Pokhara, Lalitpur, Bharatpur, Biratnagar and Birgunj.
41 RTI Rules (n 20), Rule 3(b).
42 RTI Act (n 23), ss. 5(3)(a) - 5(3)(d)
43 Ibid, ss. 5(3)(e) - 5(3)(j)
44 Ibid, s. 5(3)(k).
45 Ibid, s. 5(3)(l).
46 RTI Rule (n 20), Rules 3(a), 3(b1), 3(b2).
47 Ibid, Rule 3(b).
48 Ibid, Rules 3(b3), 3(b4), 3(c).
49 RTI Act (n 23), s. 5.
50 Kathmandu, Bharatpur, Biratnagar, Pokhara, Lalitpur, Birganj, Janakpur, Ghorahi, Hetauda, Dhangadhi, Tulsipur, Itahari, Nepalgunj, Butwal, Dharan, Kalaiya, Jitpur Simara.
51 Nikhil , Analysis available at https://docs.google.com/document/d/1Zhk4iKhvCitmuVin-TFNww8MCaSQqCYH/edit?usp=sharing&ouid=105860106701734458179&rtpof=true&sd=true accessed on 27 December 2020.
52 Sthaniya Sarkar Sanchalan Ain 2074 (Local Government Operation Act 2017), Nepal.
3 Gary J. Miller, 'The Political Evolution of Principal-Agent models', Annual Review of Political Science, p. 203, volume 8, 2005; Glynn Cochrane, Max Weber's Vision for Bureaucracy, Palgrave Macmillan, Australia, 2018, p. 113.
4 Taranath Dahal & Pramod Bhattarai, Handbook on Right to Information, Freedom Forum, 2020.
5 Vinaya Kasajoo, 'Right to Information in Nepal', GRM International, December 2013 available at http://www.cmr.org.np/esp_rti_policy_brief.pdf accessed on 23 August 2021.
6 Kathmandu, Bharatpur, Biratnagar, Pokhara, Lalitpur, Birganj, Janakpur, Ghorahi, Hetauda, Dhangadhi, Tulsipur, Itahari, Nepalgunj, Butwal, Dharan, Kalaiya, Jitpur Simara Government of Nepal, 2021, available at https://kathmandu.gov.np, https://bharatpurmun.gov.np/ne , https://biratnagarmun.gov.np/ne, https://www.pokharamun.gov.np, https://lalitpurmun.gov.np, https://birgunjmun.gov.np/ne, https://janakpurmun.gov.np/ne, https://ghorahimun.gov.np, https://www.hetaudamun.gov.np/ne, https://dhangadhimun.gov.np, https://tulsipurmun.gov.np/ne, https://itaharimun.gov.np/ne, https://nepalgunjmun.gov.np, https://butwalmun.gov.np, https://www.dharan.gov.np, https://kalaiyamun.gov.np/ne, https://jeetpursimaramun.gov.np/ne accessed on 27 December 2020.
7 Hossain Supti, 'Right to access Information', The Daily Star, Bangladesh, 10 November 2020.
8 Calling of an international conference of Freedom of information, 14 December 1946, UNGA A/RES/59, Cl. no 59 (1) states that Freedom of information is a fundamental human right and … the touchstone of all the freedoms to which the UN is consecrated;
9 International Bill of Human Rights, 10 December 1948, UNGA A/RES/217A(III) ["UDHR"].
10 International Covenant on Civil and Political Rights, 23 March 1976, 999 UNTS 331, New York, 16 December 1966 ["ICCPR"]; Javaid Rehman, International Human Rights Law ICCPR 1966, Longman Pub Group, London, 2nd edition, 2010, p.106.
11 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, NP Engel Publisher, Germany, 2nd edition, 2005, p. 445.
12 Freedom of the Press Act, 1766, Sweden.
13 'Right to Information laws: Where do we stand', DW Akademie, 24 May 2019 available at https://www.dw.com/en/right-to-information-laws-where-do-we-stand/a-48812029 accessed on 23 August 2021.
14 For instance, the right to information is constitutionally protected by Article 27 of the Constitution of Nepal, 2015 in Nepal and by Article 19A of the Constitution, it is inserted via the 18th Amendment in 2010 in Pakistan. The Apex Court of India in a catena of its judgments has also recognised the right to information as an integral part of Article 19(1)(a) and Article 21 of the Constitution of India, 1950. In the Constitution Bench of the Apex Court of India in State of Uttar Pradesh v. Raj Narain, Justice Mathew has recognised the necessity of the right to know for good governance and freedom of speech and expression. The Apex Court of India held: “The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security.” In Bangladesh, the right to information is considered to be a part of freedom of thought, conscience, and speech guaranteed by Article 39(1) of the Constitution. The Afghan Constitution, 2004 under Article 50 has recognised access to information as an integral part of good governance. Afghanistan has also enacted the Access to Information Law in 2014 in consonance with Article 50 of the Constitution. The 19thAmendment to the Constitution of Sri Lanka, 2015 under Article 14A has recognised the right to information as a fundamental right of citizens with effect from May 15, 2015. The Constitution of Maldives, 2008 under Article 61(d) also stipulates that every citizen has the right to obtain all information possessed by the government. Article 7(3) of Bhutan's Constitution of 2008 provides that a Bhutanese citizen shall have the right to information.
15 Constitution of People's Republic of Bangladesh, Bangladesh, 1972, art. 39(2); Nepal ko Sambidhan (Constitution of Nepal), art. 17(2)(a); The Constitution of India, India, 1950, art. 19; The Constitution of the Islamic Republic of Pakistan, Pakistan, 1973, art.19; Afghanistan's Constitution of 2004, Afghanistan, 2004, art. 34; Bhutan's Constitution of 2008, Bhutan, 2008, art. 7(2); Maldives's Constitution of 2008, Maldives, 2008, art. 27; The Constitution of the Democratic Socialist Republic of Sri Lanka, Sri Lanka, 1978, art 14.
16 Maneka Gandhi v Union of India, Supreme Court of India, 1978, AIR 597; Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic set-up. If democracy means the government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his rights of making a choice, free & general discussion of public matters is absolutely essential.
17 The Secretary, Ministry of Information and Broadcasting vs. Cricket Association of Bengal, Supreme Court of India, 1995, SCC 161.
18 Constitution of Bangladesh, Bangladesh, 1972, art. 19(2); Nepal ko Sambidhan (Constitution of Nepal), art. 17(2)(f) explanatory clause (1)(2)(3)(4)(5)(6); The Constitution of India, India, 1950, art. 19(2).
19 The Penal Code of respective countries; The Digital Security Act, 2018, Bangladesh; The Communicable Diseases (Prevention, Control and Eradication) Act, 2018, Bangladesh and the Disaster Management Act, 2012, Bangladesh.
20 Nepal ko Sambidhan (Constitution of Nepal), proviso; ICCPR (n 10), art. 3; Suchanako Hak sambandhi Niyamawali (Right to Information Rules 2065), Nepal, Rule 3(3).
21 It is on the public interest for the restriction of access to information. Amar Nath Singh v. National Information Commission, Kathmandu and others, DN 10474, NKP 2077.
22 The Right to Information Act, 2005, India; the RTI Act, 2014, Maldives; the RTI Act, 2016, Sri Lanka; the RTI Act, 2007, Nepal; the RTI Act, 2009, Bangladesh; the Access to Information Law, 2014, Afghanistan; the Pakistan RTI Ordinance, 2002, Pakistan and various provincial RTI laws; and the RTI Bill. 2013, Bhutan has been some of the initiatives in empowering citizens and other specified parties to secure the right to access information in the public governance.
23 RTI Act, 2009, Bangladesh, s. 6; the Right to Information Act, 2005, India, s 4; the RTI Act, 2007, Nepal, ss. 3 and 5 ["RTI Act"]; the Pakistan RTI Ordinance, 2002, Pakistan, ss. 5; Sri Lanka’s Right to Information Act, 2016, Sri Lanka (Cl 7-9 deal with the proactive disclosure of public information in the public domain); Afghanistan’s Access to Information Law, 2014, Afghanistan (Arts 4 and 14 provide for suo moto disclosure), Maldives RTI Act, 2014, Maldives (s 37 provides for pro-active disclosure), Bhutan’s Right to Information Bill, 2013, Bhutan (Cl 10-17 provides for proactive disclosure of information in the public domain); The Provincial Laws of Pakistan such as the Punjab RTI Act, 2013, Pakistan, s. 4; the Baluchistan and Sindh Freedom of Information Laws, 2006, Pakistan, s. 5.
24 The NIC also said it penalised 24 officials for their failure to implement its directives with regard to the dissemination of information, in 2019-20. Despite such legal provisions, 90 out of 120 offices were found not complying with the provision on the proactive disclosure of information during the study.
25 Nepal Adhirajya ko Sambidhan 2047 (Constitution of Kingdom of Nepal 1990), Nepal, art. 16.
26 UDHR (n 9); ICCPR (n 10), art. 19; International Conference of Information Commissioners (ICIC); Budapest Declaration on the Right to Access to Information; Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters; Maputo Declaration Fostering Freedom of Expression, Access to Information and Empowerment of people; Freedom of Information Resolution, India, 2010.
27 Principle of maximum disclosure, principle of proactive disclosure and principle of public interest overriding, ten principles of the Right to Know.
28 Suchanako Hak Sambandhi Ain 2064 (Right to Information Act 2007), Nepal, art. 3. ["RTI Act"]
29 Nepalko Sambidhan (Constitution of Nepal), art. 27.
30 Ibid, art. 217.
31 Ibid, Article 50(1) [Directive Principles of State]
32 Bhim Raj Adhikari v. National Information Commission et al., DN 8594, NKP 2068.
33 Ibid.
34 Amar Nath case (n 21)
35 Nijamati Sewa Ain 2049 (Civil service act 1993), art 24(6)(c); Sanghiye Nijamati Sewako gathan, sanchalan ra Sewaka sartsambandhi byabastha garna baneko bidheyek 2076 (Federal Civil Service Act 2020). s.32 (13)
36 Kritinath Sharma et al. v. Office of PM and Council of Minister, Kathmandu, DN 10524, NKP 2077; This information should be available on the websites as per Lakshit Pariwarlai Rahat Upalabda garaune Margadarshan, 2076 (Ration Distribution Guideline 2020)
37 'The RTI Rating: Nepal', Centre for Law and Democracy, 2018-19 available at https://www.rti-rating.org/country-detail/?country=Nepal accessed on 11 March 2021.
38 Nepal got 113 marks out of 150.
39 Himalayan News Services, 'Government offices told to abide by Right to Information Act', The Himalayan Times, 30 September 2020 available at https://thehimalayantimes.com/kathmandu/govt-offices-told-to-abide-by-right-to-information-act accessed on 11 March 2021.
40 6 metropolitan cities include: Kathmandu, Pokhara, Lalitpur, Bharatpur, Biratnagar and Birgunj.
41 RTI Rules (n 20), Rule 3(b).
42 RTI Act (n 23), ss. 5(3)(a) - 5(3)(d)
43 Ibid, ss. 5(3)(e) - 5(3)(j)
44 Ibid, s. 5(3)(k).
45 Ibid, s. 5(3)(l).
46 RTI Rule (n 20), Rules 3(a), 3(b1), 3(b2).
47 Ibid, Rule 3(b).
48 Ibid, Rules 3(b3), 3(b4), 3(c).
49 RTI Act (n 23), s. 5.
50 Kathmandu, Bharatpur, Biratnagar, Pokhara, Lalitpur, Birganj, Janakpur, Ghorahi, Hetauda, Dhangadhi, Tulsipur, Itahari, Nepalgunj, Butwal, Dharan, Kalaiya, Jitpur Simara.
51 Nikhil , Analysis available at https://docs.google.com/document/d/1Zhk4iKhvCitmuVin-TFNww8MCaSQqCYH/edit?usp=sharing&ouid=105860106701734458179&rtpof=true&sd=true accessed on 27 December 2020.
52 Sthaniya Sarkar Sanchalan Ain 2074 (Local Government Operation Act 2017), Nepal.