Model Code is establish as mechanism for disclosure of official information to enable public access to quality official information
While the Bhutanese media at large and others have opined that the Anti-Corruption Commission’s (ACC), model public service code of conduct, which came into effect from December 31, 2022, through an executive order from the Commission, is infringement on access to information, ACC has said that the Mode Code does not impede access to official information. Rather, it facilitates access to quality information from authorized public servants, which will augment the role of the media in quality public reporting.
Speaking to Business Bhutan, ACC’s Commissioner Jamtsho, said that the limitation accorded in the Model Code does not limit a public servant from disclosing information when required by law to disclose the information in their custody. “Thus, no constitutional right to freedom of speech has been impaired by the Model Code. Rather, it complements the duty to exercise freedom of speech responsibly,” he said. The Commissioner also added that despite absolute restriction on disclosure of official information by the Civil Service Act, the Model Code, in fact, seeks to facilitate the disclosure and dissemination of correct, accurate, reliable and authentic official information by public servant.
When asked if the Model Code will not deteriorate access to information, he said that the Model Code clearly lays down that the official information which has been determined to be made accessible by the general public are made publicly accessible by the authorized public servant. “This is to ensure that only authorized public servants disseminate the information that is required to be disseminated for the public consumption. It will also nurture a sense of responsibility and accountability in handling official information,” he said. He added that the Model Code is not aimed at restricting the access to information. Rather, it is required to establish mechanism for disclosure of official information to enable public access to quality official information – accurate, correct, reliable, complete and authentic official information. “This will promote and enhance the quality of public reporting,” he underlined.
On concerns that it would reduce transparency and accountability, the Commissioner said that public reporting through authorized persons is not aimed at veiling and cloaking the functioning and decision of public agencies and that the general public and media are not prohibited from seeking information from the public functionaries. “It is aimed at ensuring access to information and decision-making processes that are determined as accessible to public. It will also enable the public agencies segregating information that is required to be made publicly accessible and those required to maintain confidential and treated privileged,” he said.
He further highlighted that transparency and public reporting are indeed vital in the fight against corruption. “But it must also be noted that, even the United Nations Convention Against Corruption (Article 10), which is globally recognized as legal instrument containing international best practices in combating corruption, calls for State Parties to adopt procedures and regulate access to official information,” he maintained, adding that this is aimed at striking a balance between right to information and protection of official information which requires restriction on its accessibility.
The Commissioner said that public servant and even media, who make irresponsible, incorrect, false and incomplete disclosure and reporting must be held accountable. “With establishment of proper mechanisms as required by the Model Code, it will minimize irresponsible disclosure of information and prevent false and incomplete public reporting. This will also enable the agencies to hold accountable the authorized public servant for any misinformation,” he said.
Further explaining about the Model Code, the Commissioner underscored that the public release and implementation of the Model Code is expected to foster the culture of accountability as one of the principal objectives of the Model Code is to inform the public of the conduct they are entitled to expect of a public servant. He said the Model Code empowers the general public in demanding healthy public service delivery which in turn can promote accountability in the public service.
On questions concerning the relation between the Model Code and ACC’s goal to fight corruption, Commissioner Jamtsho said that generally, code of conduct is considered to be aspirational in nature. “With implementation of this Model Code, it is expected to improve the ethical climate in public service. Nonetheless, voluntary regulation of conduct of a public servant by code of conduct cannot replace legal standards and external controls. Corruption may, in fact, occur despite subscription to a code of conduct. Therefore, effective implementation of code of conduct is of utmost importance,” he said.
He further added that the Code of conduct is considered to be a successful strategy for fighting against corruption as it provides the aspect of prevention, education and enforcement, which compliments and reinforce each other. Though the main contribution code of conduct is educational and preventive, it also has certain enforcement aspects which can be effective in changing the ethical climate in the public service.
“The Model Code aims at creating awakened citizenry as it informs the general public what they are entitled to expect from the public servant. It empowers the general public to engage in promoting healthy public service,” he said. With empowered and awaken citizenries, it is expected to foster integrity and ethics in every conduct of public servants which will ultimately contribute in fighting corruption.
Further, he noted that the Model Code also provides other aspects that are important in fighting against corruption. “One such measure is the need to conduct integrity vetting before employment in public agencies. The Model Code requires taking into consideration the record of prior malfeasance prior to employment in a public agency to prevent corruption from perpetuating and becoming pervasive in the public service. It sets the basis in making corruption a high risk, low benefit crime,” he said.
On the role of the media in fighting corruption and concerns that impeding access to information will not allow the media to perform its duties, he said that the ACC fully acknowledge that the media has been and must continue to play a critical role in exposing, deterring and preventing corruption through promoting transparency, accountability and sensitizing issues of public concern. “The media must continue to perform their watchdog functions and is an extremely important partner in creating, nurturing, articulating and defining the very culture of integrity in public service,” he added.
Moreover, the Commissioner stressed that the role of the media in instilling and engendering sense of integrity and ethics and intolerance to corruption by public servants and general public cannot indeed be overemphasized. Saying that the ACC counts on the partnership and the support of the media, as the fight against corruption is after all a collective responsibility and fundamental duty, he said that the Model Code only sets the benchmark for the public agencies to institute appropriate mechanism for dissemination of authorized information by authorized public servant. “The public agencies are required to augment the Model Code with agency specific code of conduct that best suit their mandates and functions,” he said.
On the Model Code impinging on freedom of speech, he said; “it is said that one’s liberty and freedom end with prejudice to another’s right.” “For this reason, jurisprudentially, no fundamental rights are absolute and is therefore, accorded with limitations.
Similarly, Article 7(22)(e) provides limitation on fundamental right to freedom of speech provided under Article 7(2). Article 7(22)(e) allows the State machineries to subject reasonable restriction on the disclosure of information received in regard to the affairs of State or in discharge of official duties,” he underlined.
The Commissioner also elaborated that one such restriction is section 44(h) of Civil Service Act 2010, which has been passed by the Parliament which represents the collective will of people of Bhutan. “This section prohibits the civil servant from sharing any facts/information, whether confidential in nature or not, as it requires civil servants to maintain confidentiality of all facts and information discovered in the course of duty, both while in the service and after separation. Similarly, in other countries, there are laws on right to information and official secrecy that regulates the outflow of official information,” he added.
The Commisioner Jamtsho further said that public agencies and the public servants are the repository of information that may concern national security and unity, individual privacy, secrecy, etc. “Freedom of speech also constitutes a duty to express and provide correct, accurate and authentic information. Irresponsible, un-regulated, vested and/or haywire disclosure of information by any public servant could impair national interest and prejudice the right of another. This would ultimately have an adverse impact on the sanctity of the public service,” he said, adding that the Model Code tries to strike a balance between right to freedom of speech and need to protection of official information that has a bearing on national interest and rights of others.
Meanwhile, the ACC will monitor and evaluate the implementation of this Model Code through Organizational Integrity Plan. As such, the ACC will be reviewing the mechanisms adopted by agencies including with respect to disclosure and dissemination of official information and accordingly make necessary intervention with respect to disclosure of official information.
Sangay Rabten from Thimphu
