Mr. Malalauan, a lawyer with an academic background in economics, is a trustee of Action for Economic Reforms. He is co-convenor of the Access to Information Network (ATIN-Philippines), which he represents in the Executive Committee of the Global Transparency Initiative. This piece was published in the in the April 27, 2009 edition of the BusinessWorld, pages S1/4 and S1/5.
On May 4-5 2009, finance and economic planning ministers gather in Bali for the 42nd annual meeting of the Board of Governors of the Asian Development Bank (ADB).
Aside from tackling the impact of the global financial crisis on Asia, the ADB will forward its Strategy 2020, its new long-term strategic framework for 2008–2020. The ADB foresees that as the Asia and Pacific region moves to a higher level of economic development by 2020, it may become increasingly difficult to reach those who remain excluded from the economic growth’s benefits. Thus, one of its strategic agenda is “inclusive growth”.
To be credible with its inclusiveness thrust, the ADB would do well to improve inclusiveness in its own backyard. One way to do this is to recognize the right of people to have access to information that it holds. This is a just and reasonable proposition, considering that the ADB, by virtue of its membership, resources, influence, functions and operations, exercises tremendous powers that partake of a governmental nature. The exercise of said powers affects the lives of millions of men and women.
The right of people to information held by ADB also finds support in law. It is not contested that the ADB, like similar international financial institutions, has international personality. As a subject of international law, it not only possesses rights; it is also bound by obligations incumbent upon them under general rules of international law. Among such obligations are human rights norms that can be considered as having attained the level of customary law or general principles of law. The Universal Declaration of Human Rights (UDHR) adopted by the UN General Assembly in 1948 and the International Covenant on Civil and Political Rights (ICCPR) adopted by the UN General Assembly in 1966 are considered by many to be a codification or evidence of international custom or general principles of law binding even upon non-state parties such as the ADB.
Article 19 of the UDHR states: “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.” The same is also embodied in Article 19 (2) of the ICCPR.
In his fifth report as UN Commission on Human Rights Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Mr. Abid Hussain (India) stated that “the right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its own.” While the report addresses mainly the right to information as it relates to nation states, this should apply with equal force to international organizations such as the ADB.
To the credit of ADB, it has a Public Communications Policy (PCP) that provides access to information about ADB operations. But is the PCP a good policy from the perspective of the right to information?
One way we can answer this question is to evaluate it against the Transparency Charter for International Financial Institutions developed by the Global Transparency Initiative. This Charter enumerates standards, drawn from best practices adopted by democratic states, to which GTI believes the access to information policies of international financial institutions such as the ADB must conform to:
1. The right to access information is a fundamental human right that applies to information held by international financial institutions.
2. International financial institutions should automatically disclose and broadly disseminate, for free, a wide range of information about their structures, finances, policies and procedures, decision-making processes, and country and project work.
3. International financial institutions should disseminate information that facilitates informed participation in decision-making; they should also establish a presumption of public access to key meetings.
4. Everyone has the right to request and to receive information from international financial institutions, subject only to limited exceptions, and the procedures for access should be simple, quick and free or low-cost.
5. The regime of exceptions should be based on the principle that access to information may be refused only where the international financial institution can demonstrate (i) that disclosure would cause serious harm to one of a set of clearly and narrowly defined, and broadly accepted, interests, which are specifically listed; and (ii) that the harm to this interest outweighs the public interest in disclosure.
6. Anyone who believes that an international financial institution has failed to respect its access to information policy has the right to have the matter reviewed by an independent and authoritative body.
7. Whistleblowers – individuals who in good faith disclose information revealing a concern about wrongdoing, corruption or other malpractices – should expressly be protected from any sanction, reprisal, or professional or personal detriment.
8. International financial institutions should devote adequate resources for the effective implementation of their access to information policies, and for building a culture of openness.
9. Access to information policies should be subject to regular review.
A simple textual analysis of the PCP against the GTI Charter already reveals numerous limitations. For one, it falls short of expressly recognizing the applicability to it of the right to information. PCP adheres only to a policy-based approach where adherence to any known rights–based standards remains discretionary.
For another, while many documents are identified to be publicly available, “publicly available” means available through the ADB website. In poor communities, access to internet facility remains a luxury, thereby limiting the extent of the information dissemination. Also, instead of a limited regime of exceptions, the PCP provides a long list of exceptions. Not all exceptions identify the serious harm to a clearly and narrowly defined, and broadly accepted, interest that is sought to be avoided by non-disclosure.
On the important aspect of access by affected people, the ADB passes much of the responsibility for disclosing information to the borrowing government or private sector sponsors. The result is a responsibility far incommensurate to its deep level of involvement in project conceptualization, approval and implementation.
Finally, there is no provision for whistleblower protection in the PCP. And there is no independent appeals mechanism.
One of the provisions of the PCP calls for a comprehensive review after a period not exceeding five years from the effective date of the PCP. The PCP, having become effective on 5 September 2005, will soon be in its fifth year. How ADB will review and reform its PCP will be a test of how serious ADB is about inclusiveness.