Ghassan Moukheiber is a member of the Lebanese Parliament and president of the Lebanese chapter of the Global Organization of Parliamentarians Against Corruption. Moukheiber headed the legal drafting committee for the Bill on the Right of Access to Information, which was submitted to parliament before the June elections. He spoke with Executive about the bill’s philosophy and financial implications.
E What rights of access to information do Lebanese citizens currently have?
Access to information exists in a number of scattered regulations. However, there are a number of areas that we [are] try[ing] to improve in the bill we submitted. There has been a publication issued by the Lebanese Transparency Association, mapping the various rights that already exist, which can be found in a multiplicity of laws. However, there are many hindrances because there is no clear understanding in the actual regulation that access to information should be ‘the principal’ and secrecy ‘the exception’, which was clearly stated in the bill.
To make access to information more practical, we have mandated automatic publication of information, which is not the case now. Except in very rare instances, we don’t have automatic publication of reports. The most important thing is that the law, as it currently exists, does not provide remedies if a civil servant of an administration does not provide the information. It remains a theoretical right. Therefore, it was very important to act on these various loopholes in the law, and to provide Lebanon with a new statute. But we need to complete the legislative work with whistleblower protection. And there, we have nothing. There are no provisions that promote the disclosure of facts and evidence related to corruption, and there’s nothing that can really protect whistleblowers.
E Under the bill, information that jeopardizes “financial and economic interests of the state and safety of the national currency” cannot be accessed by the public. How much will this restrict the public’s right to know about its financial institutions?
This drafting reflected a discussion within the drafting committee about information related to the reserve that is kept by the central bank. Whenever the disclosure of information can damage the financial economic interests and the integrity of the Lebanese currency, then it may not become subject to disclosure. And even such a determination is subject to scrutiny and appeal before the independent authority. It was felt by the drafting committee, and apparently also in line with international practice, that the principal is access. The exception is limited or non-authorized access and this is the case of limited access. We are introducing here a level of assessment and again, that is subject to appeal before the [proposed] independent anti-corruption authority.
E Since the government’s finances in Lebanon are so closely linked to commercial banks, how can we combat banking secrecy on a public level?
It [the bill] cannot combat banking secrecy because banking secrecy is still something that is held by all Lebanese as something almost sacred. There has been a deviation from this secrecy by special provisions that relate to money laundering. Money laundering is covered by appropriate Lebanese legislation, albeit differently from whatever is done elsewhere. However, there is specific information from private banks that is public. Their statements of accounts must be published. The overall assets of the banks are also published.
I believe that in the particular area of banks, the bill has provided for the appropriate balance between the requirement to maintain banking secrecy and the requirements of the law to combat money-laundering, and the needs of the public to have the maximum information about everything, because this document applies mostly to the public sector.
E What about campaign finance?
Campaign finance is regulated by the electoral law. Campaign finances are for individuals and therefore are not covered [by the bill]. Electoral law covers that and it has waved banking secrecy on special accounts, but I still believe that the electoral law is incomplete and insufficient to cover all the needs of campaign financing. But this is not to be covered here. I am of the opinion that the law as it was drafted is still incomplete, because a lot of its provisions could be circumvented by banking secrecy. We only lifted banking secrecy on the campaign account, which is insufficient because it is very easy for a campaigning candidate to circumvent that regulation. The second thing that needs to be regulated is party finance. But not everything can be covered by this particular bill, which focuses on the public sector and private institutions that are assimilated to the private sector.
E The bill says that annual reports from government administrations must contain the costs of their activities. What about the financing of these?
No, because their purpose is to make available information without request. This particular article is relatively unusual in classical ‘access to information’ bills. But this follows an international trend and definitely a need that we have in Lebanon, and this is something that I have particularly pushed to include in the bill: annual reports. In annual reports, the provisions are there to make sure that you don’t only have propaganda reports, because a number of ministries and independent authorities do publish annual reports, but they are used for their own public relations so they only show the nice side of what they did. But they never show the downside. What is it that they could not accomplish and why? These provisions are to make sure that not only do they publish reports, but this requires the reports to be candid. Private companies that are handling public services must come under public scrutiny. These privatized companies will still be required to publish annual reports made available to the public, including municipalities. What is important here is that we are also making municipalities subject to public scrutiny. Take, for example, a huge municipality such as Beirut, which is under no scrutiny whatsoever from the public at large. Their meetings are private. It seems that municipalities are black boxes.
E How will the candidness of these reports be enforced?
Enforcement of the whole law is through appeals to the independent anti-corruption authority. The independent anti-corruption authority is granted the power to oversee and implement the bill through appeals, which are submitted by individuals. So an individual who feels that the bill was not implemented or feels that his right of access to information was violated can appeal to the authority and that authority could direct the administration to do its job. The independent authority is not a court, but in extreme cases, you could appeal to a court of competent jurisdiction to force an authority to do it.
It empowers citizens to act because they know. It is making information available. If a ministry, a privatized company or the central bank do not publish the reports according to standards first, they could be held to account by the independent authority. They could be reprimanded, named and blamed. Citizens could name them and blame them and politicians could use that because… we [would] have an obligation.
Today there is no such obligation. When you go to any ministry that publishes such reports you only see the good side of what they do: the rosy propaganda type of information. And what we try to understand in parliament, with little success, is really getting these public authorities to tell us why they could not do what they promised. Or why they could not implement their action plan for the year. So I believe that this bill is a beginning. It is not the end of the story.
E The administration has the power to dismiss a request as arbitrary. How will this be determined?
It will become practice. If you can go and ask the government to provide you with a complete list of all the employees of the state, with their addresses and phone numbers, that could be legitimate, but there are things that could be abusive. Abuse is to be assessed on a case-by-case basis, and in all instances abuse will still be qualified by the independent authority. The quality of abuse is in my opinion directly related to what you will use the information for. As this is a case-by-case situation, it can only be left open. You cannot keep on asking for things just to clog up the administration with requests for information. It is a general principal of law that the access to any right is always limited by its abuse, whether it is by individual citizens or by the state.
