Mongolia and Nigeria can have it but not Hong Kong...Why?

Mak Yin-ting - HKJA Chairperson (reflecting on the recent IFEX conference)

[中文][Aug 2011 - The Journalist“Nigeria just passed the Freedom of Information Act few days ago. We are pleased to have Edetaen Ojo, Executive Director of Media Rights Agenda (MRA) in Lagos, to share his experience with us.”

Lacking statutory protection for access to information, Hong Kong media 
is more vulnerable to the manipulation of government which holds a huge
 amount of public information.
When the conference host of the International Freedom of Expression Exchange (IFEX) made this introduction, I immediately wondered why Hong Kong, which claims to respect freedoms and openness, refuses to enact such a legislation to protect people’s right to know, while four West African countries have done so.

I got more angry a week later as I headed home from Beirut, Lebanon, when I learnt that the Mongolian parliament had also passed a law on Freedom of Information, Transparency, Right and Freedom to Access Information on June 16. This law will take effect in December.

Including Mongolia there are now at least 68 countries which have enacted legislation giving their citizens access to information in the public domain. South Africa's Promotion of Access to Information Act even allows people access to information held by the private sector.

There are a dozen similar legislations before other parliaments or in the process of being drafted. Brazil is one of them.

But, once a pioneer in legislating freedoms, Hong Kong has dropped behind the global trend.

Challenge by UN body

With the joint effort of HKJA and some legislators, the government promulgated the Code on Access to Information, an administrative code that is not legally binding. It sets out the types of information held by departments and the courts that must be made available to the public as a matter of routine or in response to a request. Apart from the lack of any legally binding power, the code has been criticised for the many exemptions allowed. Despite these defects, however, it still represented a beginning in allowing access to information. It was tolerable at the time because only a few dozen countries or so had enacted such legislation. Even the United Kingdom, the then sovereign power over Hong Kong, had not enacted any Freedom of Information Act and would not be doing so till the year 2000.

Participants at IFEX meeting in Lebanon exchanging views on how to fight for enactment of access to information legislations.
With the passage of time the disadvantages of the existing code are becoming harder to ignore. First, any request for information in 33 areas under 16 categories may be refused, its existence denied or not confirmed. With such a wide range of exemptions a lot of information can obviously be withheld by departments and public bodies.

Another pertinent fact is that complaints to the Ombudsman are on the rise. There were just five complaints in 2006. This figure rose to 25 in 2008. This increase may well be the reason why the Ombudsman subsequently decided to investigate how the code on access to information was working. The Ombudsman was critical of the implementation of the code: “The cases … illustrate deficiencies among certain departments, displaying considerable misunderstanding of the provisions and unfamiliarity with the procedural requirements of the Code after well over a decade of implementation. Some have refused requests for information without giving any reason or with reasons not specified in the Code”.

Neighbours have guaranteed access

The Ombudsman pointed to the inadequate training and publicity given to the code. Regrettably, the basic deficiencies of lack of statutory protection and the overly narrow scope of application of the code are not dealt with.

The government felt it prudent to leave the code alone while only intensifying the publicity work. This sluggish introduction of statutory protection not only delays the benefits of the right to know for Hong Kong people but may also come under challenge by the Human Rights Committee of the United Nation.

The Human Rights Committee finished reviewing its Draft General Comment No. 34 on Article 19 of the International Covenant on Civil and Political Rights (ICCPR) in April. In the reviewing General Comment, it states that “Article 19, paragraph 2 embraces a right of access to information held by public bodies.” It further says, “the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to receive media output.”

To give effect to the right of access to information, the General Comment goes on to say: “...states parties should proactively put in the public domain government information of public interest. States parties should make every effort to ensure easy, prompt, effective and practical access to such information. States parties should also enact the necessary procedures, whereby one may gain access to information, such as by means of freedom of information legislation.”

The Committee will continue its second reading in Geneva from 11 to 29 July. It is expected that the General Comment may be passed soon. If the Hong Kong government refuses to legislate by then, it may be challenged for deviating from the ICCPR rules.

Access to information ensures enjoyment of basic human rights and the cultivation of an open and transparent political environment. Needless to say, it is vitally important to the business community. Our neighbouring countries in Asia, namely, Japan, Taiwan, South Korea, Malaysia, Indonesia and Mainland China have enacted legislation to guarantee access to information to facilitate business circle in decision-making. The Hong Kong government’s sluggishness in enacting such legislation risks pushing businessmen to neighbouring countries.