Institutions Guaranteeing Access to Information

Chapter 11. The oversight of the IGAI’s actions in MENA countries

Abstract

This chapter looks at the different kinds of oversight to which IGAIs are subject in Jordan, Lebanon, Morocco, and in Tunisia from administrative and political entities, citizens, civil society, and the courts.

Like any public institution, IGAIs are subject to forms of oversight that constitute fundamental democratic practices. These forms of oversight ensure that the institutions act in observance of the rules that founded them, and they guarantee the IGAIs’ subordination to the political power that creates the rules and regulations. They also legitimise the power of citizens, and they are fully justified by the distance separating the government from the governed, which is a source of inequality. These forms of oversight are hierarchical, parliamentary, judicial, or exercised by civil society (Magdalijs, 2004). The legislation on the right to access information in MENA region countries considers the same goals and constraints as that in OECD member countries.

11.1. The administrative and political oversight of the IGAIs

11.1.1. Hierarchical oversight

Hierarchical oversight is exercised vertically by a superior over its subordinate. It legally allows the former to replace the latter’s assessment with its own, unless a legislative provision prohibits such a substitution. However, in the case of an institution tasked with supervising the work of the government, its decisions cannot be questioned by a hierarchical superior within the government administration involved in the decision.

For IGAIs, hierarchical oversight may be exercised when they are located within an administrative hierarchy, and nothing in the legislation indicates that their opinions or decisions cannot be annulled or reformed by the hierarchical authority. This may be the case for the Jordanian Information Council and the Moroccan Commission on Access to Information, which lack their own legal personality and which reside within the administrative structures of their countries.

To the contrary, the first paragraph of Article 23 of the Lebanese law on the right to access information provides that the Lebanese National Anti-Corruption Commission must hand down decisions that are not subject to administrative appeal. The Tunisian Authority for Access to Information is exempt from all forms of hierarchical oversight pursuant to Article 37 of the organic law granting its independence. Therefore, to increase the credibility of the Jordanian and Moroccan IGAIs, the relevant authorities should explicitly reiterate that the decisions handed down by these two institutions are exempt from all hierarchical oversight, and that their decisions are not subject to annulment or reform by government authorities.

11.1.2. Parliamentary oversight

The legislation in the four countries examined does not provide that the IGAI’s operations be subject to specific oversight by their national parliaments. The Parliaments will thus have all the regular means of oversight at their disposal, such as questions addressed to the government, investigative commissions, or discussions about the financing of IGAIs as it appears in the annual draft finance law. As mentioned above, only Article 38 of the Tunisian organic law on the right to access information provides that the Authority for Access to Information submit its annual report to the President of the Republic, the President of the Assembly of the Representatives of the People, and to the Head of Government. The Assembly of the Representatives of the People may examine the annual report and question the President of the Authority for Access to Information once a year. Establishing close ties with their Parliaments can only help IGAIs.

11.2. Oversight by citizens and civil society

In light of the political history of the MENA region, it is understandable that citizens and civil society are carefully monitoring the right to access information and maintaining constant relations with their national IGAIs. This has become even truer since the Arab Spring, which led to the appearance of a large number of non-governmental organisations (NGO) that advocate for transparency and access to information as a way to assert democracy, the rule of law, and fight against corruption. For example, Al Bawsala is a Tunisian non-profit association that asserts its independence of any political influence. It seeks to put citizens at the centre of political action by giving them the means to inform themselves on the work of their elected officials, and to defend their fundamental rights. It also seeks to establish relations with elected officials and decision-makers, to work for the implementation of good governance and a strong sense of political ethics, and to participate in the defence of the idea of the social progress and emancipation of citizens1. Similarly, the NGOs IWatch Tunisia (Ana Yakedh)2, Transparency Morocco3, Transparency Lebanon,4 and Rasheed for Integrity and Transparency5 work on defending transparency in public and economic life, and on fighting corruption. The association Article 19 is a British human rights organisation that defends and promotes freedom of expression and information throughout the world, including in the MENA region6.

The experience of OECD countries has shown that the establishment of networks strengthens the influence of civil society organisations and promotes dialogue with the public authorities. The Moroccan Network for the Right to Access Information (REMDI), which was created in 2010, includes 16 organisations that promote the right to access information, facilitate interactions with the government, and protect organisations from the risk of exclusion (OECD, 2015).

Through the IGAIs’ annual reports, which are sometimes prepared in collaboration with civil society7, legislation promotes a culture of access to information. Similarly, through awareness-raising and training initiatives aimed at the public, they grant citizens and civil society an essential place in exercising the right to information. Lastly, the close relations that IGAIs establish with NGOs that defend access to information may enable IGAIs and NGOs to carry out shared projects in the publics’ interest.

11.3. Judicial oversight

Judicial oversight is yet another form of oversight. However, a court decision that is deemed to final and irrevocable becomes enforceable, even on the government, makes this form of oversight an essential tool in defending the rule of law. In observance of the rule of law and in compliance with their legal systems, the four MENA region countries examined in this report have entrusted the litigation of their IGAIs’ actions to their administrative courts.

Article 62 of Jordan’s Constitution provides that civil courts hold jurisdiction to hear appeals against the state involving any person or subject, unless otherwise specifically provided in the Constitution and in the laws in effect that refer certain kinds of disputes to religious courts or other, special courts. Law No. 27 of 2014 provides that all administrative decisions, including those by governmental bodies, may be challenged before an administrative court of the first instance within 60 days of the disputed decision, and appealed before the same court within 30 days.

As the Jordanian Information Council is an administrative body, its decisions are subject to oversight by the administrative court, for example, when it signs an administrative contract. However, a decision on the refusal of access to information by the Jordanian Information Council cannot itself be challenged before an administrative court. A decision by the body obligated to communicate information may instead be disputed, under the terms and the conditions defined in Article 17 of Law No. 47 of 2007 on the guarantee of the right to access information. In application of this article, the person requesting has 30 days following the Information Council’s decision to appeal the decision by the relevant body before a court. In all cases, the responsibility of the Director of the National Library, who also holds the position of Information Commissioner, remains limited to that of his main title (Art. 15).

With regard to decisions on requests to access information, Article 31 of the Tunisian organic law on the right to access information provides that the person requesting access to information or the body in question may file an appeal with an administrative court within 30 days of the date on which the relevant institution’s decision was notified. However, the law does not specify the collective or general records made by the Authority, for example its public contracts or personnel decisions. As this is an administrative institution or special administrative jurisdiction, it seems natural that its records be subject to administrative law under ordinary conditions.

It would also be preferable to replace the administrative court with the administrative appeal chambers in the disputes regarding requests for access to information. Until May 2017, the seat of the administrative court was only in Tunis, which was not very accessible to citizens from other regions. However, Organic Law No. 2001-79 of 24 July 2001 on the administrative courts, specifically Article 15, provided for the creation of chambers of the first instance in the regions. More recently, Article 116 of the 2014 Constitution specified that “administrative justice is composed of a superior administrative court, administrative appeals courts, and administrative courts of the first instance”. In accordance with these provisions, the government adopted Decree No. 620 on the creation of 12 chambers of the first instance that act as administrative courts8. In the stead of an administrative court, these chambers may thus be declared to hold jurisdiction over decisions by the Authority for Access to Information based on the requesting person’s place of residence. This would help simplify court procedures for citizens.

Moreover, in application of paragraph 2 of Article 23 of the 2017 law, decisions by the Lebanese National Anti-Corruption Commission are subject to appeal before the Council of State, the country’s only administrative court, through a “full powers” administrative proceeding or an “abuse of power” administrative proceeding. Article 21 of the Moroccan law provides for the possibility of disputing either the decision by the President of the Commission on Access to Information or the refusal decision by the government administration in question before a court, within 60 days of receiving a response from the Commission on Access to Information concerning the complaint or the expiration of the legal term for responding to this complaint. Apparently, in application of Law No. 41-90, which established the administrative courts , such a dispute falls under the jurisdiction of the administrative courts. The other administrative acts by the President of the Moroccan Commission on Access to Information, acting for example as the organiser of the institution, would also fall under the jurisdiction of the administrative courts, either through an “abuse of power” administrative proceeding or a “full powers” administrative proceeding.

Notes

← 1.  See: Al Baswala, “Who are we?” www.albawsala.com/presentation.

← 2.  See: iWatch Tunisia, www.iwatch.tn/ar/ (website, in Arabic).

← 3.  See: Transparency Morocco, http://transparencymaroc.ma/TM/ (website).

← 4.  See: The Lebanese Transparency Association, http://www.transparency-lebanon.org/ (website).

← 5.  See: Transparency International - Jordan, http://rasheedti.org/ (website).

← 6.  See: Article 19, https://www.article19.org/ (website).

← 7.  Article 38 of Tunisian organic law no. 2016-22 of 24 March 2016 on the right to access information. Similarly, paragraph 3 of Article 12 of the Moroccan Constitution proclaims that “associations interested in the public sphere and non-governmental organisations contribute in the context of a participatory democracy to the development, implementation, and evaluation of decisions and projects by elected institutions and public authorities (...)”.

← 8.  Creation of regional administrative chambers of first instance in the governorates of Bizerte, Kef, Sousse, Monastir, Gabès, Sfax, Kasserine, Gafsa, Médenine, Sidi Bouzid, Kairouan, and Nabeul.