Brief Historical Overview of the Right to Access Information

THE RIGHT TO ACCESS INFORMATION

Since the beginning of civilization and the establishment of societies, there has been a need for a governance system that manages relations between entities and individuals. This system developed from the principle of «the strong rules over the weak» which evolved over time to the present-day establishment of the “rule of law.” But the rule of law has not always been applied in the public interest, as demonstrated throughout history; law and the contemporary conception of human rights can and have become secondary under authoritarian rule

Political and legal theories on the ideal model of governance abound, ranging from monarchies to republics, but most governance models of the past concentrated power in the hands of one person or one small group. The progressive separation of powers and the eventual emergence of democracy, however, mark a turning point in our governance model that later introduces the idea of universal human rights. Its essence reflects that people are the source of authority and sovereignty in the state

The application of democratic principles also brought about the belief that power rests in the hands of the people. To exercise this power, a nation’s citizens must be able to select their representatives through regular fair and free elections and to be able to hold their representatives accountable. The latter is achievable if, in part, government transparency is guaranteed through citizens ability to freely access information. The right to access information is one of the most important ways in which anyone can monitor the work of the authorities and public administrations.

Internationally

The United Nations (UN) defines Freedom of Information (FOI) “as the right to access information held by public bodies” and views it as “an integral part of the fundamental right of freedom of expression”

While the right to access information did not originate in the UN, the body’s recognition of it elevated its importance. In fact, in 1766, the King of Sweden issued a decree on the Freedom of Writing and of the Press, abolishing censorship in these two professions and ensuring citizens the right to access declassified government documents. Later, during the French Revolution of 1789, the National Constituent Assembly approved The Declaration of the Rights of Man and of the Citizen, which guaranteed the French people, through Article 14, “The right to ascertain, by themselves, or through their representatives, the need for a public tax, to consent to it freely, to watch over its use, and to determine its proportion, basis, collection and duration.” This recognition, while only acknowledging rights around taxation, established a new chapter in which citizens have the right to access information. In 1795, the Dutch followed in the footsteps of the French and issued the Declaration of the Rights of Man and the Citizen of Holland, which recognized the right of citizens to view and hold to account the work of public administrations.

These declarations, while important, were limited to the geographic regions of their respective nations. The recognition that “freedom of information is a fundamental human right” regardless of national and social origin came about following the establishment of the United Nations, whose General Assembly also recognized that right as “the touchstone of all the freedoms to which the United Nations is consecrated”

In 1948, the Universal Declaration of Human Rights was proclaimed by the UN General Assembly (UNGA), eclaring that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” This ensures the right of individuals to access and obtain information without being subjected to any type of harassment by the authorities

In 1966, the International Covenant on Civil and Political Rights (ICCPR) affirmed the Universal Declaration of Human Rights stating that “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.» This right is not absolute, however, and could be restricted to protect the rights of others or national security and public safety

The Rio Declaration on Environment and Development, which was produced at the Earth Summit in Rio de Janeiro in June 1992, called upon states to grant their citizens access to information related to the environment. The  document also asked that states “facilitate and encourage public awareness and participation by making information widely available”

Within the framework of the United Nations action on transparency and anti-corruption, the General Assembly adopted the Convention against Corruption in October 2003. It urged member states to establish effective policies to combat corruption, promote community participation and reflect the principles of “integrity, transparency and accountability.” These measures comprise adopting procedures and regulations that enable the public to obtain information on their public administrations, including their structure, work, decision-making processes, decisions and relevant legal instruments. It also grants the public necessary measures to encourage individuals and groups, such as civil society and non-governmental organizations, to participate in preventing and combating corruption. Member states are also urged to raise public awareness about the existence, causes and risks of corruption, and to strengthen engagement with the issue by promoting transparency in decision-making processes, encouraging individuals to share their input and ensuring effective access to information

At the UN Conference on Sustainable Development, also known as Rio 2012, conference participants adopted a final document titled «The Future We Want,” which stressed the importance of «engaging citizens and stakeholders and providing them with relevant information, as appropriate, on the three dimensions of sustainable development» while emphasizing that «broad public participation and access to information and judicial and administrative proceedings are essential to the promotion of sustainable development.» The document also highlighted the role of civil society by acknowledging “the importance of enabling all members of civil society to be actively engaged in sustainable development» and by recognizing that “participation of civil society depends upon, inter alia, strengthening access to information and building civil society capacity and an enabling environment”

Regionally, in May 2004, the Council of the League of Arab States adopted the Arab Charter on Human Rights (ACHR), affirming the Universal Declaration of Human Rights and other human rights-related treaties with some amendments. The ACHR recognized the right to access information and the media, freedom of expression and the right to exercise freedom of thought and opinion.
Restrictions could be placed on these rights only if required to protect the rights of others and maintain national security or public safety

As more countries are gradually recognizing the right to access information — up from 13 countries in 1990 to 90 countries today — Lebanon has finally recently adopted a right to information law

In Lebanon

Lebanese Republic’s Obligations:
In Lebanon, the right to access information was only discussed as part of the growing global movement to push for the adoption of national laws that guarantee the right to access information. Lebanese civil society organizations seized on this global movement to push for local recognition of the right to access information. In fact, the access to information law was submitted to the Lebanese Parliament in 2009, but it was not discussed in the Parliament‘s Administration and Justice Committee until 2012. On February 10, 2017, the General Assembly of Parliament ratified the access to information law (Law No. 28/2017)

Nonetheless, this law is not the only guarantee of the right to access information. The Lebanese State has several international obligations, which guarantee and protect this right. In 1948, Lebanon signed the Universal Declaration of Human Rights, and on November 30, 1972, it acceded to the International Covenant on Civil and Political Rights. In addition to the approval of the Lebanese Republic’s Obligations: Rio Declaration at the Earth Summit in Rio de Janeiro on June 14, 1992, it signed the Arab Declaration for Human Rights at the 2004 Summit. It also acceded to the United Nations Convention against Corruption on April 22, 2009, as well as signing the Outcome Document of the Rio Conference on June 22, 2012 under the title “The Future We Want”

The question arises as to what extent the Lebanese Government is obliged by joining or signing a particular document? In fact, prior to the 1990 constitutional amendment, there was no legal obligation on behalf of the State to the declarations it adhered to. These declarations were without any constitutional or legal value as they are limited to general guiding principles only. The legislator‘s non-compliance had no legal effect

As for the treaties, in 1983, Article 2 of the Lebanese Civil Procedure Law was amended to read: «The courts must adhere to the principle of the hierarchy of rules. The courts may not declare the invalidity of the work of the legislative authority because ordinary laws do not apply to the Constitution or international treaties.» It is clear that this article has adopted the hierarchy of rules (laws) and the superiority of international treaties over national law, giving precedence to the application of the provisions of the International Covenant on Civil and Political Rights over the Lebanese law. However, if article 19 of the Covenant were to be implemented with regard to the right to access information, this would not be possible because there was no legal procedure for requesting information from public authorities at the time.

Going back to the declarations that Lebanon acceded to, the constitutional amendment in 1990 contributed to adding a new preamble to the Lebanese Constitution, specifically paragraph (b) which reads: “Lebanon is Arab in its identity and in its affiliation. It is a founding and active member of the League of Arab States and abides by its pacts and covenants. Lebanon is also a founding and active member of the United Nations Organization and abides by its covenants and by the Universal Declaration of Human Rights. The Government shall embody these principles in all fields and areas without exception”

The constitutional jurisprudence differed as to the extent to which the Preamble of the constitution is obligatory. Some said that it is obligatory, while others said that it is merely a Guiding Principle to the legislator

However, the Constitutional Council had settled this dispute when the law «Extension of the Mandate of Municipal Councils and Committees Acting on Municipal Councils» was contested. The Constitutional Council has repealed this law based in part of its rule on the basis of paragraph (C) of the Preamble of the Constitution, after it expressly stated that «the principles set forth in the preamble to the Constitution are an integral part of it and enjoy constitutional value, as do the provisions of the Constitution itself”(12). Therefore, the provisions of the constitution’s preamble have constitutional value, so this results in the legislator›s commitment to the preamble’s provisions. In this case, this commitment shall be in accordance with paragraph (B) of the introduction, which shall bind the laws to the treaties and declarations of the League of Arab States and the United Nations while also to the Universal Declaration of Human Rights under the weight of avoidance of  non-constitutionality

In accordance to the above, Lebanon has various international obligations that enjoy  constitutional value from the Universal Declaration of Human Rights, to the International Covenant on Civil and Political Rights to the Convention against Corruption to the Arab Declaration for Human Rights. The Right to Access Information is protected under these obligations of the Lebanese Republic, and therefore; the legislative body’s regulations of this right in Lebanon must not contradict the previous declarations and international conventions

Posted on July 9, 2018 in Right to Access Information project

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