Ac­cess to in­for­ma­tion in Le­banon

Dead or alive?

Executive Magazine - - FRONT PAGE - GHAS­SAN MOUKHEIBER is a lawyer and former Mem­ber of Par­lia­ment. He spon­sored the Ac­cess to In­for­ma­tion Law and fol­lowed it through from in­cep­tion in 2006 to vote in 2017. By Ghas­san Moukheiber

The same ques­tions come up of­ten: “How can I use the Ac­cess to In­for­ma­tion Law (A2I)?”

or “Can I use it at all, or has it joined the ranks of the dozens of good laws that are not en­forced in Le­banon?” Lebanese cit­i­zens, once hope­ful that trans­parency in the coun­try would be height­ened with the pass­ing of the A2I Law on Fe­bru­ary 10, 2017—af­ter years of prepa­ra­tion—are now dis­ap­pointed by the many un­for­tu­nate ex­am­ples that show how dif­fi­cult, or seem­ingly im­pos­si­ble, it is to ac­tu­ally en­force. The lat­est in the se­ries of such dis­ap­point­ments was the de­lay in re­leas­ing a copy of the nat­u­ral­iza­tion de­cree, ul­ti­mately pub­lished af­ter sig­nif­i­cant pres­sure on the web­site of the in­te­rior min­istry. So, is the A2I Law dead?

To all such cit­i­zens, take com­fort that the A2I Law is alive, but re­quires a stronger will and bet­ter means for en­force­ment. The law is an im­por­tant mile­stone on the road to pre­vent­ing and fight­ing cor­rup­tion in Le­banon, but not an end of the road by it­self—it re­quires cit­i­zens to mon­i­tor and pro­mote its full en­force­ment. Be­low are some facts to il­lus­trate is­sues that are not al­ways well un­der­stood:

The A2I Law is in full force and ef­fect.

It does not re­quire any im­ple­men­ta­tion de­cree to be­come oblig­a­tory, as is falsely be­lieved in good or in bad faith, by cit­i­zens and ad­min­is­tra­tion alike. All en­ti­ties listed in the law, col­lec­tively re­ferred to as “the Ad­min­is­tra­tion,” must abide by all its pro­vi­sions with­out false ex­cuses, such as wait­ing for an im­ple­men­ta­tion de­cree that is in the mak­ing. How­ever, all should make sure that such a de- cree—al­beit use­ful if prop­erly drafted and en­acted—should not mod­ify or limit the very broad and pow­er­ful rights pro­vided by the law.

En­force­ment reme­dies are avail­able.

Many ad­min­is­tra­tions re­sponded pos­i­tively to re­quests for in­for­ma­tion. Oth­ers, un­for­tu­nately, did not. In such cases, in ad­di­tion to the le­git­i­mate, if not nec­es­sary, po­lit­i­cal blam­ing and sham­ing—and un­til the Na­tional Anti-Cor­rup­tion Com­mis­sion is es­tab­lished by law—the re­luc­tant ad­min­is­tra­tion can be sub­ject to a ju­di­cial injunction passed by the judge of ur­gent mat­ters of the Shura Coun­cil. This was suc­cess­fully done in the past and cit­i­zens are en­cour­aged to seek such rem­edy in the fu­ture.

The law is about more than just ac­cess to in­for­ma­tion.

Many, in­clud­ing politi­cians and lawyers, over­look the fact that the law also pro­vides new pro­vi­sions: to pro­tect pri­vate per­sonal data and to man­date a writ­ten ra­tio­nale for all in­di­vid­ual ad­min­is­tra­tive de­ci­sions, un­der the sanc­tion of an­nul­ment. Both sub­jects were in de­bate over the nat­u­ral­iza­tion de­cree. The fol­low­ing caveats must be noted: First, the pro­tec­tion of per­sonal data should not be an ex­cuse for not pro­vid­ing ac­cess to per­sonal de­crees; and sec­ond, judges and lawyers should be en­cour­aged to strike down non-mo­ti­vated ad­min­is­tra­tive de­ci­sions us­ing the A2I Law in order to force a change in be­hav­ior of re­luc­tant ad­min­is­tra­tions.

Au­to­mat­i­cally pub­lished in­for­ma­tion is more im­por­tant than ac­cess to in­for­ma­tion upon re­quest.

This in­cludes; an­nual ac­tiv­ity re­ports, reg­u­la­tory ad­min­is­tra­tive de­ci­sions, and, most im­por­tantly, in­for­ma­tion about funds, within 15 days of their ex­pen­di­ture. The chal­lenge re­mains to have all the above ap­pro­pri­ately writ­ten and pub­lished on ded­i­cated web­pages for each ad­min­is­tra­tion. Many sup­port­ive ini­tia­tives are un­der­way. The law fur­ther ex­poses the counter-trend de­ci­sion of the govern­ment to put the elec­tronic ver­sion of the Of­fi­cial Gazette be­hind a pay­wall. This mea­sure is in vi­o­la­tion of the gen­eral prin­ci­ple of trans­parency un­der­pin­ning the A2I Law, and there­fore re­quires a re­ver­sal through the de­vel­op­ment of a free, fully-fleged le­gal web por­tal. Also, the same gen­eral le­gal prin­ci­ple of trans­parency, and ar­ti­cle 56 of the con­sti­tu­tion, man­date that all ad­min­is­tra­tive de­crees and de­ci­sions be au­to­mat­i­cally pub­lished in the Of­fi­cial Gazette, in­clud­ing, but not lim­ited to the so-called in­di­vid­ual de­crees, such as nat­u­ral­iza­tion and par­don de­ci­sions.

As the say­ing goes in the le­gal world, “You win your case twice: once when the judg­ment is passed, and then again when it is en­forced.” The same ap­plies to laws. We won first, af­ter many years of ef­fort, when the A2I Law was en­acted. The chal­lenge now, for cit­i­zens and politi­cians alike, is to keep-up the ef­forts of an­other na­ture, to win again, by mak­ing sure that the law is prop­erly en­forced by all con­cerned ad­min­is­tra­tions.

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