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Al-Arab Al-Yawm Files the First Lawsuit for the Right of Access to Information in Jordan

13 November 2010

An investigative report that exposes the fragility of the law and the government’s irreverence in dealing with it. Mohammad Abu-Rumman, the political writer and analyst, could not hide his anger and protestation as he flipped through the pages of the book “Kill Khaled”, by the Australian researcher Paul McGeough, in which he analyzes the attempt to assassinate Khaled Masha’al, the director of the Hamas Political Bureau in Amman on September 25, 1997. “The researcher acquired dangerous and secret information and documented meetings with high officials in Jordan,” emphasizes Abu-Rumman, comparing the government’s generosity in offering secret information, with what he himself faced during preparing his PhD dissertation on relations between Jordan and Hamas, in terms of reluctance on the part of officials to provide him with information, with the justification that such information is classified. Abu-Rumman did not utilize the Law on the Right of Access to Information, which is “a mere formality and a decorative law”, according to him, as a result of the “tutelage and monopoly logic” that governs the work of official parties in dealing with information. The Right of Access to Information Law was discussed and approved in a parliamentary session that did not exceed sixty minutes; an orphan session in which the parliament discussed a law that set the features of dealing with information between the authority and six million Jordanians, making Jordan the first country to enact such a law. Three years after the law was published in the Official Gazette on June 17, 2007, it did not contribute to stirring the still waters in the field of exchanging information, and never contributed to improving Jordan’s name internationally in the realm of freedoms. The number of journalists using the law, for example, did not exceed 5%, according to a scientific survey carried out for the investigation, the results of which will be published in the second part. Jordan’s classification went back from a partially-free country to “not a free country” in 2010, according to Freedom House, an American organization whose reports Arabs view as some kind of an interference in the internal affairs of their countries. The government’s failure to provide an adequate environment for implementing the Law, and its hesitation and lack of seriousness in dealing with it were the reasons behind obstruction and invalidation, as this part of this investigation shows. The Law in the Annals of the Government Institutions Abeer Abu-Touq, a journalist with the Youth Supplement of Al-Dustour daily newspaper was shocked when she went again to the Ministry of Agriculture, after waiting for more than a month to follow-up on a piece of information she had requested. One of the officials met her with a lukewarm response: “Your request was lost. God help you, apply once more.” Ms. Abu-Touq says: “I actually did apply a second time, and a third, and after a lot of effort and a waiting period that exceeded one and a half months, I was successful in obtaining the information.” The writer of this investigation submitted ten requests to obtain an information item for the purpose of measuring the extent to which government institutions respond to the law (attached is a table showing the details of submissions). The National Library and the House of Representatives were the fastest in responding to these requests. As for the Ministry of Education, to whom a request was submitted to obtain information regarding student violence against teachers in government schools, its media spokesman called the writer of this report five weeks later, asking her to send the request once more. A request was sent to the Ministry of Interior for information regarding the cover under which missionary groups that had been deported from Jordan in 2008 operated. The response was received one month later, void of any relevant information. The Prime Ministry also withheld information requested by ARIJ regarding the report on the status of information in Jordan for 2008, which is normally presented by the Information Council to the government. The justification provided was that “ARIJ network does not satisfy the condition of legitimate interest,” although the information item was going to be used “to support an investigative report to be published in Al-Arab Al-Yawm newspaper”, according to ARIJ. The government’s refusal was based on the text of Article (7) of the Law on the Right to Access of Information, stipulating that: “Observing the provisions of applicable legislations, every Jordanian has the right to obtain information requested in accordance with the provisions of this Law if he has a legitimate interest or a legitimate reason.” Proving the legitimacy of interest stipulated in Article (7) of the Law by the party requesting the information is not simple, according to Basma Al-Hassan, a lawyer specialized in media affairs. In order to avoid this, the writer resorted to submitting the request in her personal capacity. The Prime Ministry transferred it to the Public Sector Development Commission, which later denied having received it. Al-Arab Al-Yawm submitted a request to the Lands and Surveying Department requesting to know the identity of Arab and foreign investors and the prices of government lands that were sold to them. Once again, the Department refused to respond on the pretext of “information confidentiality”, based on the classification of such information as “limited access,” according to the law of Protecting the Secrets and Documents of the State, whose items contradict the Law on the Right to Access of Information. Meanwhile, and specifically after enquiring directly about government lands, the government sent a circular to all its institutions to commit to the Protection of State Documents (which prohibits any government employee from leaking any “secret” information), subject to legal prosecution. Classification of Government Documents … Each to his Own Institutions using “information secrecy” as an excuse represent an obstacle faced not only by the writer of this report, but also by Yahya Shqair, the journalist and specialist in information laws, who surprised officials at the Jordan Media Institute when he presented a document that he could not obtain from the Institute’s administration by using the Law on the Right to Access of Information. Shqair says that as a result of a disagreement between him and the Institute’s administration over conditions for full-time study, he requested to examine the contract signed between the institute and the University of Jordan in this regard. However, the “confidential nature of the information” prevented me from obtaining the document. As a matter of fact, what I requested was not confidential, as is evident from the fact that I obtained it later.” Lawyer Al-Hassan sees that the Law on the Right to Access of Information gave the Institute a wide margin to conceal the information with the excuse of “confidentiality.” Article 14 of the Law compels government institutions to index their documents according to professional statutes, and to classify what should be considered confidential and protected according to current legislations. There is no problem with the Article, according to Irahim Izzeddin, a former Minister of Information and Chairman of the dissolved Higher Council of Information. “The right to access information set the Law for Protecting Government Secrets and Documents as a guideline for institutions to follow in classifying their documents, considering that each state may classify its documents as open or classified, in order to protect its security and sovereignty,” say Izziddin. Although the intended classification of documents is to refer to the Law for Protecting Government Secrets and Documents; a law well-known to be the most concealing of information law, the picture seems to be foggy in some government institutions. The results of a random survey carried out on 16 government institutions within the framework of the investigation shows that there are no common standards among government institutions to classify their documents. At the Ministry of Industry and Trade, for example, archiving and classification are performed according to a system approved within the Ministry. Public Security Directorate classifies information according to its own policy. The Anti-Corruption Commission indexes information according to what it considers important for public opinion, while the Civic Status Department refuses to provide any information regarding the indexing of its documents by order from the General Director. The Ministry of Labor also asked researcher Ma’an Abdallah, authorized by Al-Arab Al-Yawm to carry out the survey, to return one week later to get the answers. Minutes of meetings of the Cabinet of Ministers meetings disappear on the shelves of the Prime Ministry, with the excuse that they have not been transcribed yet. The investigative report writer asked to see these minutes of meetings pertaining to the Dead Sea Casino deal discussions (Fall 2007) after the file was mysteriously closed lately, the Prime Ministry’s answer was: There are no minutes of meetings of the Cabinet of Ministers!” Three years after ratifying the Law, and eight circulars over discrete periods, sent by Prime Minister Sameer Al-Rifa’ei to government institutions requesting them to complete indexing operations, did not succeed in completing the mission at the Ministries’ level, and only 15% of government institutions completed indexing their documents, and the government never carried out one field trip to inspect who completed the classification process, “according to information provided by the Information Commissioner, Ma’moun Al-Talhouni to the investigation report writer. Al-Arab Al Yawm Files the First Law Suit for Accessing Information What distinguishes the Law on the Right to Access of Information most is the right of its user to appeal in courts an institution’s refusal to provide information. This is what actually happened on September 20, when the Higher Court of Justice recoded the first lawsuit since the Law was approved, filed by the report writer against the Lands and Survey Department for concealing information on the prices at which government land was sold, and in whose favor the sale was made. The road was not well-paved since the outset. The court refused to consider the report writer a “journalist” because she lacks membership in the Jordan Press Association, which deprives her, according to the court’s point of view, from the legal status to request the information. To avoid this confusion, the complainant was registered as a Jordanian citizen only. This is a problem that could face 500 people working in the field of journalism and media, who are not registered at the Association, out of 1200 journalists operating in the Kingdom, according to estimates by the Center for the Protection and Freedom of Journalists. Complications did not stop at this. Despite the possibility of calculating charges at the lowest limit of JD50, according to the lawyer authorized to pursue the case, Mr. Mohammad Qtaishat, the judge decided to impose the highest limit at the Higher Court of Justice, of JD500. Qtaishat explains: We will appeal the classification of the information by the Department as “limited”, and therefore cannot be revealed by the official, in accordance with the temporary Law for Protecting Government Secrets and Documents enacted in 1971. Government land is public property and all citizens have the right to know relevant information and numbers.” When Government Drawers are Void of Information Forms According to Article (9) of the Law on the Right to Access of Information, the journalist has to fill out an approved official form before applying for accessing information. This is an issue that is not known to many journalists interviewed by the investigation report writer. The importance of the report lies in “formalizing the information request”, according to Ma’amoun Al-Talhouni, the Information Commissioner. The man asserts that “the Prime Ministry issued more than one circular through which it encouraged ministries and institutions to provide the standard form in their offices.” The irony was in the results of a field survey carried out as part of the investigation, which included 16 institutions, and which “revealed that the Public Service Office at the Prime Ministry does not have this form. It was only available at the Income Tax Department.” The situation is not any better in the electronic realm. The form is only available in one official site among dozens of government sites, and that is the National Information Council. Information Council: Government Sponsorship and Non-Binding Decisions The Information Form is simply the passport to submitting a complaint to the Information Council in case an institution concealed a piece of information from someone requesting it. This is exactly what happened with Mohammad Al-Khatib, a former journalist with Radio Al-Balad. Al-Khatib had no alternative but to submit a complaint on 16/10/2010 against the Central Bank, according to Article 17 of the Law on the Right to Access of Information. Al-Khatib’s complaint came after the Central Bank haggled for more than a month that ended with the Bank’s refusal to provide him with the information on the “ratio of faltering housing and personal loans in 2009,” with the excuse that such information is confidential, according to Article 45 of the Central Bank Law. The Information Council, however, recommended that the Bank should give the information to the journalist, because the reason for refusal is non-valid. “Things did not go well, however,” says Al-Khatib. “The Law on the Right to Access of Information does not compel the relevant party to adhere to the decisions of the Information Council, which instigated the Bank to refuse the Council’s recommendation, according to Al-Khatib. In this context, both Ma’amoun Al-Talhouni, the Information Commissioner and journalist Yahya Shqair, who contributed to the preparation of the Law, agree that “the non-compelling nature of the Council’s decisions contributed to contracting its role as an implementer and overseer of the Law implementation.” It is noteworthy that Yemen, the second Arab country to ratify the draft Law on the Right to Access of Information, overrode the confusion of the Council decision’s binding nature according to the text of Article 31 of the Law: “Recommendations and decisions issued by the Information Commissioner are binding to all parties.” The non-binding nature of the Council decisions is not the only reason behind the lack of confidence between the Council and the users of the Law, “according to Mohammad Qtaishat, the expert lawyer in information issues.” The Council supervising the flow of information from the executive authority to citizens was born from the womb of the former, to be controlled by government employees assigned by the Prime Minister,” according to Qtaishat. On his part, the Center for the Protection of Freedom of Journalism proposed to the parliament before it ratified the Law, that it appoints Information Council staff, rather than the government doing that, according to Nidal Mansour, Director of the Center. The Council, however, did not take the proposal into consideration. After seeing the minutes of meeting for ratifying the Law, it was evident that it is responsible for setting the present composition of the Council. Strange Statistics The bleak image of the information flow and use between the ruler and the ruled is contrasted with a bright one in western countries. In July of 2010, Ireland celebrated the one-thousandth-complaint filed with the court based on the Law on the Right to Access of Information there. In the United States, the number of applications submitted in accordance with the Law reached two and a half million applications during 2007 alone. In another country, like Britain, which is known for its strictness and rigor in dealing with secret documents, the number of applications submitted during the first year of the law’s life reached one thousand. Attachment No. (1) Institution Date Application Sent Date of Response to Application Response Information Subject Ministry of Education 5/7/2010 After 5 weeks The Information Spokesperson requested the journalist to re-submit the application Violence and counter-violence in public schools Ministry of Health 6/7/2010 No answer received There was no answer. A source at the Ministry of Health told the journalist who requested the information that the Ministry does not wish to provide the information requested. Monthly health reports issued by Al-Hashimiyeh Medical Center Petroleum Refinery Company 20/5/2010 20/5/2010 Some questions were partially answered Information about prices and taxes imposed on petroleum derivatives. Ministry of Interior 12/5/2010 24/6/2010 The answer had nothing to do with the request Deporting groups that carried our missionary activities in Jordan in 2008 Prime Ministry Information and Communication Department 24/5/2010 24/6/2010 There are no minutes of meetings at the Prime Ministry Minutes of the session discussing the Dead Sea Casino deal Prime Ministry 15/6/2010 8/7/2010 The request was turned down because the “interest condition” was lacking Annual reports regarding the Law on the Right to Access of Information Prime Ministry 4/10/2010 8/7/2010 The application was transferred to an institution that is not concerned with the information requested. The institution, in turn, denied having received the request. Reports regarding work on the Law on the Right to Access of Information House of representatives 24/5/2010 24/5/2010 The quickest to respond. House of Representatives’ minutes of meeting discussing the Law on the Right to Access of Information Lands and Surveying Department 13/6/2010 23/6/2010 Refused to provide information using the excuse that the information is confidential. Government land and areas. Information Council 5/8/2010 16/8/2010 All enquiries were responded to, except one that addresses financial costs of the campaign to promote the Law on the Right to Access of Information. Law on the Right to Access of Information: Part II More than three years after ratifying it, only 5% of journalists used the Law on the Right to Access of Information. The government blames journalists for refraining from making use of the Law, and experts say “the Law was not enacted for journalists.” A public opinion poll carried out by Al-Arab Al-Yawm revealed that 95% of journalists did not make use of the Law on the Right to Access of Information for their work. The poll covered 130 journalists from various information outlets. The preparation of its questions and the selection of the sample were overseen by the former Director of the Surveys Unit at the Center for Strategic Studies, Dr. Mohammad Al-Masri. It showed that about 49% (almost half those polled) do not use the Law because they believe there are other ways that are more effective to acquire the information. 21% (about one fifth of those polled) did not use it because of the “institutions’ haggling and procrastination in responding to the requests of the information potential user.” Three tenths of the sample justified not using the Law by “the indolence and sluggishness in its procedures and items.” Reluctance of journalists, who are the parties that deal most with information, to use the Law was clear from the first year of its ratification. Figures from a study carried out by The New Jordan Center for Studies in 2009 show that 42% of journalists do not know what the Law on the Right to Access of Information is all about. Reluctance of the government to deal with the Law, and the lack of a true desire on its behalf to facilitate the flow of information to the public are considered the main reasons behind the journalists’ reluctance to use the Law, as was found in the first part of this investigation. Today, Al-Arab Al-Yawm reveals other reasons that led to the compete paralysis in activating this Law, although three years have passed since its ratification in a country that takes pride in being the first to have ratified the Law in the Arab World. The Government Throws the Ball into the Journalists’ Court The government’s failure to activate the Law on the Right to Access of Information did not prevent it from blaming journalists for this. Perhaps the most significant example of this is the statement made by the former Prime Minister, Nader Al-Dahabi in the first few days of last October, when he said: “Unfortunately, until this day, not a single citizen or journalist applied through legal channels to obtain information.” The Prime Minister was oblivious at the time of the fact that at least two journalists applied at the time to obtain information a few months before he made his statement. Rana Al-Sabbagh, a writer and a journalist had applied to the Information Commissioner requesting information six months before Al-Dahabi’s statement, specifically at the beginning of April last year. She requested to see a copy of the contract between the government and the Jordan Media Institute for renting the Institute’s building against a nominal amount of money,” according to Ms. Sabbagh, who is yet to receive and answer. The writer of this investigation report had applied for obtaining information a full year before the Prime Minister’s statement, from the Chief Justice’s office, regarding the status of Shari’a courts. She received an answer two weeks later. Fahd Al-Fanek, chairman of the Board of Directors of Al-Rai daily newspaper, which is close to official parties, agrees in an article published last July with the former Prime Minister. The man believes that “journalists in Jordan are complaining because they are lazy. Suffice it to say that until now, not a single journalist applied to obtain information in accordance with the Law and the procedures therein.” In fact, there in no government mechanism to monitor the number of applicants for obtaining information, whether among journalists or others, according to the Information Commissioner, Ma’amoun Al-Talhouni. The Information Council only records complaints filed by applicants for information after the institution turns down their request to provide information. These have reached six over the past three years. However, Al-Talhouni recounts that the Law “has not been seriously tested by the journalists, since they are the parties that deal most with information (…). How then are they demanding that we improve something they have not tested? The Law, however, did not enjoy enough promotion among people. The government held four workshops only to promote awareness of the Law; three of which were in 2008 and one in 2001. Only 100 people participated, distributed over journalists, ministries’ staff and jurists. The promotion also included a three-month media campaign in the form of paid messages in the local, official and private media. A source close to the Information Council asserted that the government “did not allocate a special budget for promoting the Law, but deducted it from the Ministry of Culture’s budget, and that the amount did not exceed JD50,000. One page of a government message in the large daily newspapers costs over JD2,800. The Law is Inadequate for Journalists Mohammad Al-Khatib, the former journalist at the Amman Net Radio to repeat his experience with the Law on the Right to Access of Information after he spent four months trying to obtain a piece of information from the Central Bank by resorting to the Law. But Al-Khatib came out with nothing, and the case was closed with the Central Bank’s refusal to respond to him. These time periods to obtain information stipulated in Articles 9 – 17 “are illogical, and no journalist, whose work requires speed in reporting news can deal with them,” according to Maha Al-Khasawneh, a professor of Information at Yarmouk University. According to these Articles, the institution is under the obligation to respond to the person requesting the information within 30 days. If he chose to appeal the institution’s decision, however, he shall have to wait for about two months if he appealed to the Higher Court of Justice, and one month if he submitted his complaint to the Information Council, which issues non-binding decisions for the government. Journalists are Responsible for the Law’s Failure The Law on the Right to Access of Information did not come as a result of the persistence of information or judicial institutions that felt the pressing need for a law that protects its right to a large supply of information, as was found in the investigation. Reminiscing the birth of the law idea, the former director of the now dissolved Higher Council for Information, Ibrahim Izziddin reveals “a desire that was, at the time, generated within the decision-making annals in Jordan, to enact an information law that polishes the country’s image in the field of freedom of expression,” so that the law is a government creation, with a timid blessing from experts whose number did not exceed the fingers of one hand. Tareq Al-Momani, the former president of the Association of Journalists asserted that he was present when the Law was prepared, as a representative of the journalists, and that those preparing its text consulted over eighty laws from different countries around the world. He did not, however, deny the dire need for “amending some of the Law’s provisions to make it more adequate for journalists.” Despite this confession of the need to amend the Law, the Association of Journalists did not present a list of demands to the government, recommending this despite the fact that three years have elapsed since the Law was ratified. One can remember the list of demands presented by the women coalition in Jordan, through which it succeeded in amending about five controversial articles in the Personal Status Law. The lukewarm attitude of the Association in this context finds justification with the Association president, Hikmat Al-Momani, “who was busy preparing drafts for the Journalists’ Association Law and the Publications Law, noting that the work on amending the Law on the Right to Access of Information will commence soon.” This situation reflected on the journalists themselves, because they were either not aware of the need to activate the Law or were not interested in doing so, as is evident from the initial distribution results of the survey carried out by the investigative report writer. It was used by 30% only of a random sample, which included 130 journalists among whom were chief editors. The surprise came when the report writer attempted to document each case responding that it used the Law, separately. It was evident that all those surveyed did not use the Law properly, with the exception of six of them. The reason lies in misunderstanding, and because those surveyed did not distinguish between applying to an institution in accordance with the procedures outlined in the Law and submitting an official letter to the institution, or requesting the information by phone. All media institutions, as the investigation revealed, did not apply to use the Law on the Right to Access of Information in its institutional capacity as a pressure tool on the government and as a means to test the Law. Journalistic attempts emanated from individual desires on behalf of some journalists. Other Partners in Responsibility Journalists are not the only people who are ignorant of the Law. The House of Representatives was also “not sufficiently aware and knowledgeable of the media laws and regulations when its members discussed it. This is what contributed to its issue by the Parliament in its present, unacceptable form, “according to Mohammad Qtaishat, a lawyer specialized in publishing issues. The resumes of the members of the freedoms and judicial committees, responsible for reviewing the Law before it was presented to the full house reveal the lack of experience in the field of media legislation and freedom of information, as Al-Arab Al-Yawm found out. The expertise of the two committees’ members is distributed between work in the academic field and bureaucratic government positions. The experiences of even the lawyers among them were restricted to various commercial laws. The reluctance of journalists to employ the Law on the Right to Access of Information, added to it the fragility of the Law and its non-binding nature, as the investigation showed, makes the journalistic work, with its news reporting and analytical aspect, more of a jigsaw puzzle, as Mohammad Abu-Rumman, the writer and political analyst describes it. It is a game that does not rest on a solid ground of certainty, and remains hostage to the journalist’s conjectures, as he stands at the door of the source, hoping that the source would extend the kindness of providing something worth writing about.


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