RIGHT TO INFORMATION
COURT : SUPREME COURT OF NEPAL
CASE: CIVIL CASE
According to the information disseminated by the governmental and non-governmental media, Arun Hydro Project, which was about to be launched, would create an economic misuse such as percentage commissions due to the involvement of World Bank and other international contractors and also a long-term impact on environmental protection and social balance. It was alleged that the investment of the project might not be sustained by the country. As vigilant citizens the petitioners requested information on the project from the respondents. However, the respondents denied this and thus infringed the petitioners’ fundamental right to information as granted by Article 16 of the Constitution. There were numerous suspicions on the need, rationale, usefulness and sustainability of the project due to doubtful activities and contention of the respondents. The loan drawn from the foreigners would have to be reimbursed, directly or indirectly, through the taxes paid by the citizens of Nepal including the petitioners. In the Memorandum of Understanding the terms and conditions of the investors were not found stated even though the matter was a public concern and the right to such information is also granted by the International Covenant on Civil and Political Rights which applies in Nepal equally to domestic laws. There were several precedents regarding public concerns. Therefore, the petitioners requested an order of certiorari, thereby directing the respondents to supply all the information regarding the project.
The respondents asserted that several seminars and meetings had been organised to clarify the technical, environmental and economic aspects of the project. At its office a library and information section is operated to supply information to the people as required. Therefore, citizens including petitioners are not deprived of the right to information. The petitioners had no locus standi either. A study of the project had been carried out for a long time and the proposed project is appropriate in every aspect. The technical aspect is perfect and different measures are set to control environmental impacts. The benefits to the local people after completion of the project, training related to its construction and operation, necessary facilities and securities and settlements for people possibly displaced from the project site had already been planned. The provision of Article 16 is not a privilege of the petitioner to receive copy of all statistics and details but only entitlement to general information. The petition mentioned about the Memorandum of Understanding, which shows that the petitioners had access to any necessary information. Accepting inevitability of the need of hydro-electricity for the development of the nation, the project is to be completed under Articles 25(2) and 26(3) of the Constitution, which in fact restrict the exercise of jurisdiction for judicial remedy. Thus, it was requested to nullify the petition.
The respondents had requested an immediate hearing of the case, especially taking into consideration the possible negative effects on investments and operations from the side of donors, which could cause a national loss.
Any dispute, if it affects negatively the interest of the general public, is an issue of public concern. General public concern includes the issues related to residence, employment, security water resources development, social justice etc. Arun-3 project would have a long-term impact on all citizens including the petitioners. The debated issue is about the development of electricity by national and international resources, and therefore is a subject of public interest and concern.
Article 88(2) may not be attracted merely because of the inclusion of a public issue but the subject should bear the nature that fits enunciation by the court.
In the present case, it would not be constitutional for the court to put off the case as the court cannot enforce directive principles of state policies. Since Article 16 provides for each citizen to demand and receive information about a matter of public concern, the petitioners deserve a locus standi to file the petition with the court, as the debated Arun-3 Project is a matter of public concern and importance.
A right is nothing without a remedy. Although Article 16 of the Constitution guarantees the right to information, there is no specific law providing for the manner and matter to provide the information. The spirit of Article 16 seems to be one of managing people’s right to information in a democratic manner.
The petitioners had not related the said dispute with a particular question of law or constitution. As the matter claimed therein is not one of judicial enunciation but rather one related to economics and politics, Article 88(2) cannot be attracted therefore.
When a right is established and if procedure to materialise the right is still lacking, the court has to fill the gap. The demanded documents seemed to be of a huge quantity and it would simply be impossible for the respondents to supply the petitioners with copies of all the documents. If the court would impose such a burden this would go beyond judicial limitations and would be a rigid manifestation of justice.
Therefore, in lack of directives by the law, eight points of procedure were laid down by the decision to supply the copies i.e. information. A writ of mandamus was issued for the purpose of supplying the information on the basis of the above-mentioned eight-point procedures and prevailing laws of the land.
The court has also drawn the attention of the government to formulate the official secrets Act. It has also ordered that the eight-point procedures would come into force until and unless necessary rules and regulations were made.