Global Policy Forum

A Murky Transparency Law


By Thelma Mejia

Inter Press Service
February 22, 2007

The "law on transparency and access to public information" in force in Honduras since January is in violation of international conventions on freedom of expression and against corruption, and creates loopholes for preventing the declassification of "reserved" or restricted information.

"Virtually any document can be classified as reserved. Any minister can do this if he or she considers that public access to that information may be prejudicial to humanitarian aid, national security, economic stability or governability, among other vague criteria," Jaime López told IPS. Under the new law, all information about humanitarian aid is secret. The amounts of aid received and the uses to which they are put cannot be divulged. "It's incredible that a law with such a positive purpose can be twisted so as to serve the opposite intention," said López, the head of the regional Probidad (Probity) Network, referring to the nearly four years of efforts by civil society to get a "sunshine" law in this country.

The new law provides for the creation of an Institute for Access to Public Information, with the purpose of regulating such access. But the Institute's powers are limited because it must share functions with other state institutions. This overlapping may compromise its independence, López said. There are also serious problems with information classified as reserved. The law stipulates a 10-year period before declassification, but elsewhere it provides for "purging of files," which can be done every five years. Since the law does not specify which documents can be purged, the inference is that any document, secret or not, can be destroyed. "Reserved documents could be destroyed before they are due for declassification, and thus the public would never be able to have access to them," he said.

Lawyer and former National Human Rights Commissioner (Ombudsman) Leo Valladares told IPS that the law is out of step with international conventions Honduras has signed. For example, it limits the right to information by implying that access is a concession by the state, "which is not true. It is an irrevocable right of every citizen, guaranteed by the American Convention on Human Rights and the freedom of expression enshrined in the constitution," he said.

The law is also in violation of the Inter-American Convention Against Corruption, because the last article stipulates that only public information generated after the law enters into force is subject to its provisions. "This means that it won't be possible to investigate what happened years ago, and not even last year or this year, because the law says it will only fully enter into force in 2008. This is an open violation of the constitution and the convention against corruption," said Valladares, who presented a previous draft law on access to information which was never debated in Congress.

Neither the Honduran constitution nor previous legislation establish the right of access to public information. The only related constitutional guarantees are the right of freedom of expression, and in very general terms, the right to petition. The law on transparency and access to public information was an electoral campaign promise made by President Manuel Zelaya, after Congress had blocked a proposal for such a law since 2004. That draft law had been presented by Alianza 72, a coalition of civil society organisations named after article 72 of the constitution, which establishes freedom of expression. Zelaya took office in January 2006.

At a Feb. 10 march "For Integrity and against Corruption", organised by the state National Anti-Corruption Council (CNA), which is made up of members of civil society, the business community, unions and state agencies, Zelaya vowed in public, draft law in hand, that the new legislation would make the corrupt tremble. He said the law would be implemented immediately, and that the Institute for Access to Public Information would be functioning within six months. He claimed this was the best sunshine law to be passed in Latin America, and the first of its kind in Central America. "We will go down in history because we are transparent and we don't want corruption," Zelaya said, to the applause of many of the 15,000 demonstrators.

The organisers were not expecting the president to be present at the march, which was gatecrashed by thousands of followers of the governing Liberal Party, according to several social organisations. The newspaper El Heraldo reported on Feb. 12 that the political activists were paid 10 dollars and a plate of food each to take part in the march. "Our job was to cheer the president and prevent him from being heckled," one of the demonstrators told the newspaper. Meanwhile, the presidency offices were empty, because ministers and advisers were out leading the march. "The march was taken over by the government as if it were its own initiative, and it is worrying that a demonstration of this kind should end up being corrupted by a government that is promoting transparency," said political analyst and lawyer Ramón Romero, a professor at the National Autonomous University of Honduras (UNAH). "Everything points to the law on transparency being a joke, as well. It was turned upside down in Congress; people in society seem not to react, and when they do, the government pulls a fast one on them," Romero told IPS, adding that he felt "frustrated" and "cheated" because he had attended the march.

The Committee for Free Expression (C-Libre), which fought alongside Alianza 72 for a law on access to public information, condemned eight articles that, in its opinion, put a stranglehold on transparency. These refer to reserved information, the role of the Institute, the secrecy surrounding humanitarian aid, and above all the law being applicable only to third-ranking officials. In effect, the presidents of the three branches of state, their ministers and advisers, and mayors, city councillors, and deputies are excluded from the scope of the law. "It's a law for public employees, which only reinforces the circle of secretiveness in Honduras," said C-Libre activist Félix Molina.

Social organisations plan to make use of what is left of the law, by disseminating the public information available. In the opinion of Probidad's López, there will be "large volumes of documents that can be opened to public scrutiny, but key data about abuses of power and protection afforded privileged groups will be missing." According to the Social Forum on External Debt and Development in Honduras (FOSDEH), this country loses 38 million lempiras (about two million dollars) a day through corruption. Since the Zelaya administration took office, over 20 cases of corruption have come to light. Four of the cases were prosecuted, but three of them were dismissed this month.

Paradoxically, these events do not appear to have affected the president's image. According to surveys, he enjoys an approval rating of 70 percent after one year in post. Over the course of that year, Zelaya made 29 trips abroad. He was accompanied by 145 journalists, all of whose travel, accommodation and meals were paid for by the government, with a cost of 72 million dollars, according to reports from Honduran online media outlets based on their own investigations.

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