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Open Letter to the Honourable Prime Minster of Nepal

last modified Feb 10, 2012 12:00 AM

Open Letter to the Honourable Prime Minster of Nepal,

We, the undersigned organisations and individuals, are writing to you to express concern about the recent adoption by your government of a document setting out the scope of classified information. We believe that the document fails to respect constitutional and international standards regarding the right to information, and that it also fails to respect both the spirit and the letter of the 2007 Nepalese Right to Information Act (the Act).

Our substantive concerns with the classification document are as follows:

  1. It lists 24 categories of secrets, along with 116 types of information that are declared to be secret, many of which are vague and unclear.
  2. It provides that secrets established by other laws shall be preserved, ensuring that secrecy rules prevail over the openness standards set out in the Act.
  3. It allows Cabinet to classify any document as secret.

Under international human rights standards, information may only be withheld from the public where:

    i.      this is provided for in a legal rule which is clear and accessible;

    ii.      disclosure of the information would be likely to cause harm to an interest recognised under international law (namely the rights or reputations of others, national security, public order, or public health or morals); and

    iii.      the harm to the protected interest is greater than the overall benefits of disclosure.

The rules in the classification document signally fail to meet these standards. Indeed, we believe that together they would very seriously undermine the effectiveness of the Right to Information Act, just as it is starting to be implemented.

We are also concerned about the process by which the classification document was adopted, which was by a Committee consisting of the Chief Secretary, a secretary from the Prime Minster’s office and a retired secretary of law. Article 27(1) of the Act provides for classification by a Committee consisting of the Chief Secretary, the secretary of the “relevant ministry” and an expert on the relevant subject. We understand this as meaning that different committees will be constituted for different types of information, to ensure that relevant expertise and experience is brought to bear on the very important question of deciding what is and what is not secret. Otherwise, we believe that the Committee should have undertaken broad consultations with experts, including experts from outside of government. Put differently, we do not believe that a single group of three individuals can possibly be qualified to make all encompassing decisions about the classification of information.

We call on you to withdraw the classification document and to restart the process envisaged under Article 27 of the Act. The new process should ensure that relevant expertise is taken into account in the development of the classification document, and that the final document conforms to standards on the right to information as guaranteed by the Constitution of Nepal and under international law.