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FOCUS March 2012 Volume Vol. 67

Freedom of Information in the Pacific

HURIGHTS OSAKA

Freedom of information is slowly getting support in Pacific Islands countries as seen in the recent developments at both Pacific and national levels. But challenges remain, and continuing efforts by various stakeholders are needed.

Pacific Commitments to Accountability and Transparency

Leaders of the Pacific Islands Forum declared in 2000 in Biketawa their "[C]ommitment to good governance, which is the exercise of authority (leadership) and interactions in a manner that is open, transparent, accountable, participatory, consultative and decisive but fair and equitable."1
In 2004, they adopted the Forum Principles of Good Leadership and Accountability2 that commit Pacific Islands Forum member-states to principles on disclosure of fraud, corruption and mal-administration,3 as well as transparency in budget-making, spending, auditing and reporting processes in the government sector.4 Under the Forum Principles, they also have a duty to ensure that their people have ready "... access to the administrative laws governing access to government benefits, the applications of taxes, duties, and charges, etc." and "executive discretion is at a minimum."5
In the same year, Pacific Islands Forum Leaders invited "members to consider signing and ratifying the UN [United Nations] Convention against Corruption [UNCAC] to strengthen good governance in accordance with the spirit of the Biketawa Declaration."6 To date, seven Pacific Island countries have ratified UNCAC, namely, Papua New Guinea (PNG), Fiji, Palau, Vanuatu, Marshall Islands, Cook Islands and Solomon Islands.
Article 13 of the UNCAC provides that each state-party "shall take appropriate measures, within its means and in accordance with fundamental principles of its domestic law, to promote the active participation of individuals and groups outside the public sector, such as civil society, non- governmental organizations and community-based organizations, in the prevention of and the fight against corruption and to raise public awareness regarding the existence, causes and gravity of and the threat posed by corruption."7
Article 10 of UNCAC specifically provides for measures that would support public participation, namely:

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes;
(b) Ensuring that the public has effective access to information;
(c) Undertaking public information activities that contribute to nontolerance of corruption, as well as public education programmes, including school and university curricula;
(d) Respecting, promoting and protecting the freedom to seek, receive, publish and disseminate information concerning corruption.

In 2005, the Pacific Islands Forum Leaders endorsed the Pacific Plan, which provides guidance to the work of the Pacific Islands Forum Secretariat (PIFS) as well as of relevant development partners. Under Initiative 12.3 on enhancing governance mechanisms, Freedom of Information (FOI) is identified as a milestone in support of the Plan's Good Governance Pillar.
A 2009 study,8 reviewing the implementation of the Forum Principles of Good Leadership and Accountability, reveals obstacles to the fulfillment of these commitments. The study cites three major difficulties: mindset influenced by colonial past, poor communication facilities, and outdated public records management systems and practices.9

Freedom of Information Legislation in the Pacific

In 2008, Cook Islands became the first Pacific Island country to enact freedom of information (FOI) legislation, with the enactment of the Official Information Act. But other Pacific Islands countries have not been able to follow suit. The 2009 study mentioned earlier identifies several probable reasons for the lack of progress on FOI legislation, such as the:10

a. "ever-present debate over the suitability of democracy and human rights as core values of governance in Pacific Island communities, many of which are used to the exercise of authority based on traditions and privilege"
b. "Commonwealth history of closed governments, as evidenced by the Official Secrets Acts which were imported from England during the colonial period," and
c. government resistance to "public transparency and accountability and [the] downplay[ing of] the fact that in a democracy information is a public good that is created and held by public authorities and functionaries to be used in the public interest."

Nevertheless, there is a growing commitment among governments in the Pacific Islands to give more importance to right to information and translate it into effective and reliable mechanisms that would help improve their overall governance.
Since 2007, the United Nations Development Programme (UNDP) Pacific Centre has been working with partners such as PIFS, the Commonwealth Pacific Governance Facility, Commonwealth Human Rights Initiative and national partners to implement a program on FOI in the Pacific. Following a regional UNDP-PIFS workshop on FOI for Pacific policy-makers in 2008, a number of Pacific Island countries started to more actively work on FOI. In Nauru, a national workshop in 2009 on FOI resulted in the right to information being included as a new human right in the proposed amendments to the 1968 Constitution, along with a duty of the government to enact a law to protect this right. However, the proposed constitutional amendments did not receive sufficient votes in the 27 February 2011 referendum. But other proposed constitutional amendments (including the proposed FOI provision) that did not need approval by referendum might still be adopted through legislation.
The governments of Palau and Solomon Islands also respectively held national FOI workshops in 2009 and made public commitments to enact FOI legislation. These initiatives also received support from UNDP and/or PIFS.
The Constitution of Papua New Guinea (PNG) has provisions on Freedom of Information (S.51) and the Freedom of Expression (S.46) that journalists utilize to be "able to gather news of the frustrations of the people and express those frustrations and concerns in relation to issues affecting PNG."11 PNG has yet to enact an FOI law, but the new National Anti-Corruption Strategy launched in early 2012 specifically recognizes enactment of an FOI law as a priority. In January 2012, PNG Prime Minister O'Neill specifically recognized the need for an FOI law as one of his key anti-corruption legislative reforms.12

Recent FOI Developments in Tonga13

The government of Tonga, through the Ministry of Information and with the support of the UNDP Pacific Centre and the Commonwealth Pacific Governance Facility, began in October 2011 the drafting of a new FOI policy. In November 2011, when launching the new Radio Mast for the Tonga Broadcasting Commission, Lord Prime Minister Tu'ivakano highlighted that a FOI policy would be an important framework in the ongoing development of the information infrastructure of Tonga.
In early February 2012, the government made available to the general public a draft “Discussion Paper on the Freedom of Information Policy” (FOI Discussion Paper) to enable people to submit their views and input on the policy considerations and guidelines recommended by this FOI Discussion Paper.
This FOI Discussion Paper sets out guiding principles for the FOI Policy, with explanation of procedures for requesting and accessing information, a set of exemptions for non-disclosure of government information, and the public's right to information held by the government and public authorities. This document outlines expected implementation costs once the policy is approved. In addition, it discusses key issues for appeal s process and independent complaints mechanisms for Tonga.
On 13 February 2012, the government held a national consultation on the FOI Discussion Paper. The Chairperson of the Cabinet Steering Committee for the Freedom of Information Policy, Tongan Deputy Prime Minister Samiu K. Vaipulu, stressed the government’s strong commitment to have “a more open government.” Lady Fusitu'a, former Minister for Information and Communications as one of the key Facilitators emphasized that the fundamental issues of language and cultural identity be addressed. "We are pleased that [the] Government is giving us this exercise, where we can participate in drafting [the] context of the Policy, with the voices of our very community who make up the very essence of this policy, be[ing] heard and [their] views be[ing] considered."
The Acting Police Commissioner explained that the Police Ministry's information disclosure policy involved the use of public interest test to determine whether or not a disclosure would be at the interest of the government, public or personal level, and in accordance with the law.
Mr. Pesi Fonua, President of the Tongan Media Council reiterated that

 [W]hen the government is deciding what information should be released and what should remain exempt, it should always apply the 'public interest' test. ... 'Public interest' basically refers to information held by government which is of such importance that it will affect the decisions and day-to-day lives of the Tongan people.

The Cabinet Steering Committee for the Freedom of Information Policy has adopted “the guiding principle of maximum disclosure” with exemptions being harm-based and subject to public interest test. A subsequent FOI legislation will entrench the legal right to information for all Tongans.

Recent Developments in Vanuatu

In 2011, the government of Vanuatu created an Information Committee, with the task of developing a media development policy for the government, including formulating an FOI Bill. This initiative indicated the commitment of the government to the fundamental aim of developing an information disclosure policy that promoted and enhanced the processes of democracy and representative government by increasing access by the public to information. This Information Committee was comprised of representatives from the Office of the Prime Minister, the Ministry of Justice, the Parliament of Vanuatu, the Ombudsman, civil society, and the media.
The planned FOI policy and law will guide officials, as well as the media, civil society and the public, and provide a clear framework and process for accessing and disseminating information. It will also guide the government's implementation of e-governance and information management systems.
A civil-society-drafted FOI bill in 2006 did not move further due to the need at that time to make this proposal reflect local conditions. This draft bill nonetheless provided an important starting point.

Final Note

The Leaders of Pacific Islands countries have recognized the importance of FOI in promoting transparency and public accountability, and thus address the problem of corruption. The Samoan Prime Minister, Hon. Tuilaepa Lupesoliai Sailele Malielegaoi, specifically recognized that "resources lost to corruption are resources lost to the poor... [that] slows the progress towards the achievement of the Millennium Development Goals."14
FOI is a necessity, as observed by a UNDP officer in the Pacific:15

The right to know is fundamental to empowering people to better exercise and protect their human rights. As such, the right to access information underpins the Millennium Development Goals because it recognised that without information people will struggle to enjoy their right to health services, education, a clean environment and adequate housing.

HURIGHTS OSAKA appreciates the substantive assistance provided by Ms. Charmaine Rodrigues, the UNDP Pacific Regional Legislative Strengthening Expert, in the preparation of this article.

For further information, please contact HURIGHTS OSAKA.

Endnotes

1. "Biketawa" Declaration, Pacific Islands Forum Leaders' Retreat, 31st Pacific Islands Forum, Biketawa, Republic of Kiribati, 28 October 2000.
2. Forum Principles of Good Leadership and Accountability, at www.forumsec.org/pages.cfm/political-governance-security/good-governance/forum-principles-of-good-leadership-accountability.html. The text of this paragraph is based on Laura Halligan and Claire Cronin, Status of the Right to Information - The Pacific Islands of the Commonwealth (Delhi: Commonwealth Human Rights Initiative, 2009) page 3. Full report available at www.humanrightsinitiative.org/publications/rti/status_of_rti_in_pacific_island_of_cw.pdf.
3. Principles 1 and 4, Forum Principles of Good Leadership, ibid.
4. Forum Principles of Accountability, ibid.
5. Principle 5, Forum Principles of Accountability, ibid.
6. Forum Leaders Communiqué, Thirty-Fifth Pacific Islands Forum, Apia, Samoa, 5-7 August 2004.
7. Article 13. Participation of society, United Nations Convention against Corruption, United Nations General Assembly resolution 58/4, 31 October 2003.
8. Halligan and Cronin, op. cit.
9. Ibid., pages 79-80.
10. Ibid., page 81.
11. Chronox Manek , "FOI in Papua New Guinea - Challenges, and the Way Forward," in Freedom of Information: The Right to Know (Paris, UNESCO, 2011) page 40.
12. See Isaac Nicholas, Proposed whistle-blower law revisited, at http://malumnalu.blogspot.com/2012/01/proposed-whistle-blower-law-revisited.html.
13. The text of this section is drawn from "Tongan Government engages in National Consultation in its commitment to a Freedom of Information Policy," Tonga Government Portal, www.pmo.gov.to/press-releases/3364-tongan-government-engages-in-national-consultation-workshop-in-its-commitment-to-a-freedom-of-information-policy.
14. United Nations Development Programme Pacific Centre, International Right to Know Day highlights information for achievement of MDGs in the Pacific, at www.undppc.org.fj/pages.cfm/newsroom/2010/international-right-know-day-highlights-importance-of-information-achievement-of-mdgs-pacific.html?printerfriendly=true.
15. Comments of Ms. Charmaine Rodrigues, the UNDP Pacific Regional Legislative Strengthening Expert, at the Right to Information Workshop organized by the Media Association of Vanuatu (MAV) and Transparency Vanuatu in Port Vila, ibid.


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