The Right To Know

I had become an adult before the Information Age began.  I first saw television when I went to England to study at age 18.  Cinema was then the popular means of visual entertainment in St.Kitts.

There were no calculators. Calculations were done mentally. I still often back check my calculator to keep my mental skills in tune.

I first saw a computer when I was checking in with BA to return home after qualifying in my profession in 1971. That computer occupied an entire room. I am sure its capacity was less than that of my smart phone. There were no personal computers.

The only telephones in St. Kitts were what are now called landlines. Very few people had them. Calls were made through an operator based in a central telephone exchange. There was a very limited international service via Cable and Wireless. 

There were no photocopiers. There was a basic, cumbersome stenciling machine which reproduced things like exam papers. Legal documents were typed on typewriters, another instrument consigned to history.

A camera was a luxury which few could afford. Pictures were reproduced from film in special dark rooms which only photography businesses had.

But, the education I received at the St. Kitts-Nevis Grammar School was top quality and prepared me very well for college and professional studies.

Life was simple but very enjoyable. Families and friends visited each other. They sat around the house and chatted without the distraction of television and cell phones.

People met each other face to face. They spoke to each other by word of mouth and looked at each other as they spoke. Older persons were to be honoured. Teachers were sacrosanct. Preachers were few and revered. Policemen were respected and admired. There was a good measure of social discipline. There was community parenting. Nobody locked his or her house or car. And would you believe it one murder in a year was a monumental tragedy.

Kids played with each other and games were played mainly outdoors with balls. There were no video games. We made full use of the gifts of nature. We hiked, climbed trees and went regularly to the beach.

Kids joined the Public Library and borrowed books. You had a set time to return each book you borrowed.

 The pace of life is substantially increased in the Information Society. Everything is instant. When I was growing up the only thing instant was coffee. This presents a serious ethical issue. I receive on average 30-40 business related emails per day. Many of them request or expect an immediate reply. Unfortunately the Information Society has not yet brought me a faster brain. I therefore manage my email methodically. I do not allow myself to be rushed into giving advice which requires careful thought. If an instant reply is required and I need time to think through the issue I indicate that I am not available to provide the advice instantly. I tell them how long it will take. Nine times out of ten they wait. Do you allow yourselves to be rushed into decisions because of the speed of communication?

Yes, despite its benefits the Information Age has its challenges. We have heard already today of several of these. You techie people are far more au fait with the full dimensions of these challenges. As a partial outsider whose life is assisted but not controlled by technology I will address the macro issues I see as of concern.

I said earlier that the Information Age has not been able to bring me a faster brain. Nor has it changed the intrinsic nature of the human being. That has not changed and sadly never will. You may cure diseases and travel to the planets. You may make ever faster computers and robots. You may create artificial intelligence. But you will never be able to eradicate the human weaknesses of selfishness, greed, avarice, jealousy, lust, love of power, narcissism, ego, hatred, prejudice, deceitfulness among others. These have lasted from the beginning of mankind. They have transcended the Agricultural Age and the Industrial Age and every other age and they will survive the Information Age. The Information Society provides fertile ground for some of these vices. It does also however provide the tools to enlighten the world, to counter the negative effects of the vices, to bring out the positive traits of human nature and to allow the interaction of cultures which can contribute to that process. This should be a major focus of the Information Society.

I urge you therefore to take the opportunity this conference provides for you to discuss the ways in which the Information Society can contribute positively to the improvement of human behavior.

One area which I am observing very closely at a local level is the effect which the Information Society will have on the political tribalism which pervades St. Kitts and Nevis. That totally irrational behavior, begun in 1967, has the potential to destroy the country as evidenced by the events of the 26 months prior to the February 2015 general election. In that period the country was simmering and violence could easily have broken out as happened in 1967 and in 1993. A country with such a small and intimate population, which boasts 98 per cent literacy and free secondary education for all, has been unable to convert from totally partisan politics to issue based politics. We will see if the Information Society leads our young people out of that crazy blight.

Another macro issue of international importance is the job losses resulting from the technology which spawned the Information Society. I was in England in July. I went to travel on the underground train. I could find no person at the station to sell me a ticket, only a bank of computers. Eventually an employee of the train service helped me use the computer. I would have figured it out but it might have taken me a while. One evening I went to a supermarket which had one person on duty, the manager. You had to cash yourself out by computer. I cussed and the manager assisted me.

 I can lie in my bed and shop. And soon drones will deliver the goods to my doorstep. Lovely and convenient for me as I grow old but what about the people who are losing their jobs and will continue to do so at a greater and greater rate. I hear you say that these people can be retrained. But, I come back to my point that the human being has not changed in our physical propensities. There will always be a substantial part of the population of every country who can only do basic jobs. The world has to create new employment for those people. If it does not what is the point of the technology. What is the point of inventing more and more sophisticated machines and artificial intelligence if a large part of the human race will be left behind. I appreciate that it is a complex issue but it has a moral dimension which the world better start meaningfully addressing.

 The internet also highlights the danger that a little information can cause. Everybody is now their own doctor because they can go on WebMD and other sites with medical information. And everybody can go online and make their own will without understanding the legal implications.

Overuse of the technology poses a serious challenge to societies. Many people are so captured by it that they fail to pay adequate attention to their duties and responsibilities and to their personal growth and development. The negative effect on productivity can be real. And here in St. Kitts we have a serious problem of low productivity. A cell phone and television provide an easy cop out from personal problems.

They provide a ready distraction from personal reflection which is so important. They provide a distraction from family life for which they are a very poor substitute. The youth violence which is far too prevalent in St. Kitts and Nevis is caused in part by lack of role models and poor parenting. Too many kids are brought up by television and video games while self indulgent parents occupy themselves otherwise. We should not be surprised that so many young men become immune to violence and find the company of the gang more supportive than their family.

Now to the issue of focus. The right to information (also referred to as the right to know) is a fundamental right set out in the St. Kitts and Nevis constitution in these terms:

“Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of expression, including freedom to hold opinions without interference, freedom to receive ideas and information without interference (whether the communication is to the public generally or to any person or class of persons) and freedom from interference with his correspondence.”                                                

As the language suggests the right to know has several components. It is contained in the same section and is complimentary to the right of free speech. Free speech is more effective when based on facts and knowledge.

The rationale for making the right to know a fundamental right is as follows: power comes from the people  and is delegated to the government chosen by the people by way of elections; in order for the people to exercise their franchise effectively they should have adequate knowledge of what the government is doing;  for the same purpose and in order to assess those who  hold and those who seek elective office the people should have the right to share ideas and information;  the government has huge power and the machinery to withhold or hide information;  the weakness in human nature can motivate politicians to self-interest and can therefore make them susceptible to corruption and abuse of power; there should be an effective deterrent to that happening; for there to be an effective deterrent, the people should be able to know when it is happening and the people should have effective means of control over those who exercise such tendencies; in summary transparency in government is vital to true and effective democracy.

In Commonwealth Caribbean countries we have been burdened with constitutions which create what the late UWI Professor Simeon MacIntosh called “elective dictatorship” and which some call “dictatorship by Prime Minister”. Our constitutions give excessive powers to the Prime Minister. The late Sir Fred Philips, the first Governor of St. Kitts and Nevis when they became self governing and later an outstanding Caribbean lawyer, described these powers in this way:

“For we must never forget that in small communities such as Caribbean States, it is easy for the Prime Minister wielding an all pervasive influence, to manipulate almost everything and everybody, especially since, in most territories, he (or she) is the appointing authority in respect of almost every person or board operating in the public domain”. 

There is all the more reason therefore for the effective recognition and practice of the right to know. In my view that right should be supported by term limits on the Prime Minister but that is not our topic today.

Before I move on to discuss the components of the right to know let me comment on the responsibilities which go with that right. Free speech does not mean the right to say whatever we want. It has its constraints. We are not free to cry fire in a crowded theatre. We are not free to defame a person’s character. We are not free to threaten violence against anyone. While this is not written in the constitution we should speak truthfully and fairly.  We should communicate civilly. The same responsibilities apply to the exercise of the right of freedom of communication.

The first aspect of the right to know which I will discuss is the right to government held information.

To give effect to this right many democracies enact legislation known as the Freedom of Information or Access to Information Act. I am informed that a Bill of this type was introduced last week into the National Assembly here. May I respectfully remind the Honourable Attorney General that government has (or is widely perceived to have) a conflict of interest in this and in Integrity in Public Life legislation. It is incumbent on government therefore to enable the most extensive public discussion on the current Bill. As I have not seen the Bill you will forgive me if I refer to the Jamaica legislation. The purpose of such legislation is best described in the Access to Information Act of Jamaica as:

The objects of this Act are to reinforce and give further effect to certain fundamental principles underlying the system of constitutional democracy, namely—

.    (a)  governmental accountability;

.    (b)  transparency; and

.    (c)  public participation in national decision-making,

by granting to the public a general right of access to official documents held by public authorities, subject to exemptions which balance that right against the public interest in exempting from disclosure governmental, commercial or personal information of a sensitive nature.”

This type of legislation creates a balancing act between the right of the citizen to know and the obvious public interest in keeping some information confidential. It requires public authorities (usually including Government ministries, departments and agencies, Government authorities and boards and statutory corporations) to make available on request by a member of the public certain information relating to the functions, decisions, policies and operations of the public authority. The sensitive information and documents exempted from disclosure include (with some qualifications) Cabinet papers; information the disclosure of which would prejudice the security, defence or international relations of the country; confidential communications with foreign governments and international organizations; documents and information relating to law enforcement; information and documents subject to parliamentary privilege or legal professional privilege; information and documents the disclosure of which could have a substantial adverse effect on the economy; documents containing trade secrets, information of commercial value or sensitivity; and information and documents relating to the personal affairs of any person.

Sometimes the exemption lasts for a limited period. That period is 20 years in Jamaica.

The Governor General, the Courts, the security and intelligence services and other public authorities so designated by Parliament are totally exempted from the Jamaica legislation.

Legislation of this type usually establishes the process available to the citizen for application for disclosure of information and the timelines and process for response by the public authority. If the public authority considers it proper to decline to disclose the requested information there is a process for notification of the decision and appeal by the citizen against it. Legislation usually contains oversight mechanisms to enforce the right. Some legislation provides for an official by various names e.g Information Commissioner. Such official carries out the oversight role. Various powers and protections are given to such official to give effect to his role and to protect his independence.

Freedom of Information legislation often also requires public bodies to publish information about their functions and operations, their policies and processes.

Some provide protection for whistleblowers.

 Let us look briefly at the type of information which it is appropriate to disclose. The most obvious ones are government policies and government processes. But these are not as accessible as is necessary. The Information Age provides the easy means of access via websites to this type of information. Government has no reason not to disclose it.

Another area which is very sensitive in St. Kitts and Nevis is disclosure of representation of the country abroad. In 2013 an economic citizen showed up at a Canadian airport with a St. Kitts and Nevis diplomatic passport and claimed the purpose of his visit was to meet with the Canadian Prime Minister. When questioned, the man said that he had paid a million US dollars for the passport. That raised alarm bells which ultimately resulted in Canada imposing visa requirements for nationals of St. Kitts and Nevis to travel to Canada. It raised alarms here too because the Government had never said that it sold diplomatic passports as part of the Citizenship by Investment Programme (CBI). The understandable action taken by Canada damaged the CBI Programme and the good name of the country. The country was told that the man had consular status as representative to Azerbaijan. Most people in St. Kitts and Nevis haven’t a clue where Azerbaijan is and there has been no indication of trade or other significant relations between the two countries.  

Questions remain unanswered as to whether the man did pay for the passport as he said, if so who he paid, whether the sale of diplomatic passports was part of the CBI Programme, how many other such passports have been issued and to whom. This situation provides the perfect rationale for freedom of information legislation. Many are still hoping to get this information from the new government. This is of relevance to the whole region because several countries have citizenship by investment programmes. I am sure that in all of those countries there is debate on disclosure.

Freedom of Information legislation would help to promote democracy and less secretive governance in St. Kitts and Nevis. It is by no means however the panacea which some like to think that it could be. Firstly, the list of exempted information will be wide. Secondly, a public authority which wishes to be obstructive can drag out the disclosure process. Thirdly, the process can be stressful, time consuming and costly for the citizen. Fourthly, not many citizens have the courage to take on the Government in this way. Fifthly, it is not easy in a small society such as ours to find persons who can effectively and with full independence fill the role of Information Commissioner. The legislation is therefore a good tool but not a substitute for a general change of culture to enlightened governance. Nor is it a substitute for general vigilance on the part of the public to combat a lack of transparent governance 

A second area of the right to know is access to government owned media. Our courts have held repeatedly that this is part of the rights of free speech and information. Yet it has never been put into practice in the 32 years of our country’s independence. Our ZIZ radio and television has always been a government only mouthpiece. As with freedom of information there has to be proper regulation. That should come by way of legislation which should give effect to the right of fair access by political opposition to government media.  It should also regulate the right of access by the individual to such media. As with freedom of information legislation this can be a complex issue to balance the respective interests but it is one which should be addressed.

I give the details of a famous case on this subject which is from Anguilla but involved a distinguished son of this soil John Benjamin QC who practices law in Anguilla where his mother was born. John was host on a popular weekly radio call in programme on the government owned radio station in Anguilla. John and his callers discussed a myriad of issues of public importance. A ticklish subject was brought up by John involving the grant of a lottery licence by the Anguilla government to an American. There was strong public criticism of the government decision. The American became angry and threatened to sue. The government closed down the programme. John is a fearless and independent man. The government messed with the wrong man. John and two of his listeners took the government to court. Now before I tell you of the decision let me say that John had no formal arrangement with government to host the programme. Nevertheless the Judge held that the government had breached his right to free speech and his listeners right to information by stopping the programme simply to stop the criticism. The Anguilla government appealed to the Court of Appeal. The Court of Appeal found in favour of the government. John did not stop there. He took the matter to the Privy Council which found in his favour.

A third component is the right of the media. The media is referred to as the fourth estate following the three branches of government recognized in the separation of powers which underpins our system of governance.  The three branches are the executive, that is the Prime Minister and Cabinet, the legislature that is Parliament (in our case the National Assembly) and the judiciary, that is the courts. In our small country the executive and legislative branches are often controlled by the same people hence the critical importance of the courts.

The media is important in keeping the government in check by allowing the public to express their views in exercise of the right of free speech and in transmitting information and views in exercise of the right to know. The media has responsibilities in performing that role. The people rely on it for true information, for balanced reporting and for responsible comments. The media should itself carry a strong code of conduct and adhere to it. If not governments will find an excuse to legislate the governing rules. That should be avoided at all costs. The famous Observer case in Antigua cemented the right to establish media houses, in that case the Observer Radio Station. The government refused the station a licence to broadcast and was forced by the Privy Council to grant the licence and to pay damages for refusing to do so.

Private media houses are a recent development in St. Kitts and Nevis. Until 20 years ago ZIZ was the only local radio and TV. It is a government mouthpiece and has low journalistic standards. There were then and still are two so-called newspapers but each is the mouthpiece of a political party. Neither fits the true description of a newspaper. I was a founder of WinnFm radio station, the leading independent station which has 50 local shareholders and is beholden to no man or woman. The licence for WinnFm was held up for too long because the Minister of Information at the time said that the licence would be issued over his dead body. Incidentally, he is still alive.

 I couldn’t put the role of the media in better terms than that expressed by the Caribbean Media Association in a Declaration in 2014 and I quote:

We recognise the value of the free press in deepening the democratic process and promotion of the means through which true development is pursued and achieved and agree with the United Nations Educational Scientific and Cultural Organisation (UNESCO) that “only when journalists are free to monitor, investigate and criticise a society’s policies and actions can good governance take hold.”

We also agree that “independent investigative journalism is an ally of open government and thereby enhances the effectiveness, and thence the legitimacy, of development processes.”

In summary the armoury for the effective exercise of the right to know lies in great measure in freedom of information legislation, access to government owned media and a free and independent media. But without the exercise by civil society of its critical role in a democracy and without vigilance by the society generally that armoury can be meaningless. 

Let me in closing urge the decision makers in our society to promote within our institutions of higher learning a culture of research which has been sadly lacking. The Information Society is the ideal facilitator for that development. A country will not progress unless it records its history and unless its educational facilities nurture the spirit of free thought.

I leave you with some advice from Ghandi which befits the Information Society:

Live as if you were to die tomorrow. Learn as if you were to live forever”




 

 

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