We do not much talk about it. What is the Right to Know? Who is giving us to enjoy this right?
The Mongolians lived in the dictatorship regime that public served the Government. Now we are living in a democratic system that the Government serves the public. We name it as civil and humanitarian society.
So first, we form the Parliament by democratic elections and the Parliament is committed to provide political, economic and social conditions for our lives. The Parliament appoints the Government and imposes obligations to make the public's life better and happier.
Second, we finance the Government and its institutions from our pocket money.
This is giving us a legitimate right to control the Parliament and the Government on how they fulfill their promises and how efficiently they use our money. Without information we cannot take the control. Information is oxygen of democracy. That is why we have right to know. The public takes their control through mass media, NGOs and other institutions of civil society. These institutions cannot be responsible; if they are not powerful and there is no favorable environment for functioning otherwise they would try to find wrong ways to fulfill their duties. If civil society is ill-equipped, we cannot build healthy democracy. We will be able to take controls if freedom of information is officially guaranteed.
Experts of Awareness Development Fund, an international organization based in London insist that economic difficulties are closely linked to failure to respect for the rights of individuals to political freedom. They assume economic development without transparency and political accountability and equal respect for all citizens is unsustainable.
We are building the democracy. Mongolia has significant achievements in guaranteeing human rights. Freedom of media is also legally guaranteed and free and independent press became a reality and its role in the society is changing. Numbers of NGOs established and they serve the society and members to protect their rights.
In 1998 the Parliament passed the Law on Media Freedom, which bans censorship, restricts state ownership of media and prohibits the Parliament to adopt any laws restricting media freedom. Unfortunately, the implementation of this law is weak that Mongolian Radio and TV are still financed by the Government and serve the Government. It is said that provincial radio and TV stations have been transferred to the local Parliaments but they are still under the control of local authorities. The previous traditions are kept. In these conditions we receive information that the officials want and it violates principle of media pluralism. It means Mongolia does not respect for the main principles of democracy and human rights.
Legal mechanisms are weak and economic environment is unfavorable for the further development of independent media. Independent press is not enough powerful to fulfill their duties on providing the public an information of public interests and assisting the public to control the Government. The Law on Media Freedom encourages the Constitutional provisions of citizen's freedoms but some provisions of other laws are still contradictory to the main laws. It makes limited the right of public to access information and now it is just interest of authorities to provide information or not. So it is necessary that some strong measures must be taken on improving environment for democratic and pluralistic media that ensuring to fulfill their duties of public " watch dog".
The Law on NGOs was passed by the Parliament in 1995 but there are no legal and economic mechanisms making the Government and business community to promote NGOs. It was definitely wrong decision that the Parliament amended the Taxation Law provisions, which guaranteed the tax reduction for supporting social activities and events.
Last year the Globe International's lawyers' team conducted an Analyze on the Mongolian laws in the framework of Media Legal Reform project financed by OSI- Budapest. The team has reviewed more than 230 Mongolian laws and 91 of them contain provisions related to media. 51 of them need to be changed in order to more secure rights to express opinion, freely publish, seek for and receive information guaranteed by the Constitution.
When we talk about information freedom we understand that there are groups of freedoms, which are closely linked to each other. Freedom of information is important for strengthening democracy. Information held by public authorities is not acquired for the benefit of officials or politicians, but for the public as whole. Unless there are good reasons for withholding such an information, everyone should be able access it. Freedom of information is a key component of transparent and accountable government. It plays a key role in enabling citizens to see what is going on within government, and exposing corruption and mismanagement. Open government is essential if voters are able to assess the elected officials and if individuals are to exercise their democratic rights to protest against wrong policies and decisions. It is increasingly being recognized that states are under obligation to take practical steps to give effect to right to freedom of information. Legislation of freedom of information will foster a political culture in which public security of those in authority is seen as normal and desirable aspect of democratic process.
Access to information law will give substance to a constitutional provision. If that is absent, the government has to justify why information must be kept secret.
The right to freedom of information, particularly access to information held by public authorities, has attracted a great deal of attention recently. In past 5 years numbers of countries have taken steps to enact legislation giving effect to this right. It includes countries similar to Mongolia such as Hungary, Bulgaria, Russia, Check republic, Albania, and even Kyrgyzstan, which is one of countries where media freedom is restricted.
Mongolia recognizes Universal Declaration of Human Rights and has acceded to International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. By this Mongolia declares that follows provisions on human rights and freedom information of these important documents.
Article 19 of the International Covenant on Civil and Political Rights asserts the right to hold opinions without interference as follows:
1. Everyone shall have the rights to hold opinions without interference
2. Everyone shall have the right to freedom of expression; this right shall include the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, or in print, in the form of art, or though any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall not be only such as are provided by law and are necessary
The Constitution of Mongolia guarantees citizen's freedoms of thought, freely express opinion, speech, freely publish and assembly peaceful demonstration. It also protects the right to seek and receive information except that which the State and its bodies are legally bound to protect as secret.
Ensuring freedom of expression " regardless of frontiers" is missing in the Constitution of Mongolia.
In 2000 the Parliament passed Law on National Commission of Human Rights, and it is important step in developing freedom of expression. National Human Rights Commission is defined as " an institution mandated with the promotion and protection of human rights and charged with monitoring over the implementation of the provisions on human rights and freedoms, provided by the Constitution of Mongolia, laws and international treaties of Mongolia ". It is important that Article 9.1 of the law protects rights of citizens to lodge complaints to the Commission. This provision is a substance to the Constitutional provisions ( 16.14), which reads: Citizens have right to appeal to the Court to protect their rights in the case of violations of their human rights and freedoms, guaranteed in the Constitution, laws and international treaties.
Article 16.17 of the Constitution says: right to seek and receive information except that which the state and its bodies are legally bound to protect as secret. On order to protect human rights, dignity and reputation of persons and to ensure national defense, security and public order, the information, which is not subject to disclosure shall be classified and protected. It is normal but in order hand it is a problem that which information goes within disclosure list.
The Constitution says in Article 10.2 " Mongolia shall fulfill in good faith its obligations under international treaties to which is it a Party" and " The international treaties to which Mongolia is a Party, shall become effective as domestic legislation upon the entry into force of the laws on their ratification or accession" (the Constitution,10.3)
However, Mongolia limits its international obligation by Article 10.4 of the Constitution that: Mongolia shall not abide by any international treaty or international instruments incompatible with its Constitution.
As mentioned above, Mongolia has recognized the international principles and therefore the Government must ensure only the narrowest restrictions on these fundamental rights.
Some other Mongolian laws contain provisions obliging the authorities to respect for their positions while exercising their rights to express opinions. It involves policemen, judges, prosecutors and members of the National Human Rights Commission. Article 24.4 of the Law on the Government restricts the Ministers' freedom of expression and speech by saying " the ministers must agree with the Prime Minister". It also related to other state and government authorities and workers by the Moral Code of State Officials, which says " state officials are not allowed to provide information without permission of higher authorities"
Some other Mongolian laws contain provisions obliging the authorities to respect for their positions while exercising their rights to express opinions. It involves policemen, judges, prosecutors and members of the National Human Rights Commission. Article 24.4 of the Law on the Government restricts the Ministers' freedom of expression and speech by saying " the ministers must agree with the Prime Minister". It also related to other state and government authorities and workers by the Moral Code of State Officials, which says " state officials are not allowed to provide information without permission of higher authorities"
Mongolia protects secrets in 4 levels:

1. The Law on State Secret (1995) protects state secrets. Article 5 of the law says: " information, documents and confidential parts of other documents related to concepts of national security and ensuring economic security", " information of utmost importance on foreign policy and foreign stance, confidential agreements, contracts and their drafts made between Mongolia and other countries." The Law on List of State Secrets involves 73 secrets.
2. Mongolia protects individual privacy by the Law on Individual Privacy adopted in 1995. Articles 2, 3 of this law give definition and types of individual privacy and according to the law " individual privacy means information, documents or physical items that are kept confidential …and disclosure of which might cause significant damage to legitimate interests, reputation and esteem of the person in question and types are defined as privacy of correspondence, health, property owned and family life. These privacy are protected by article 5 of this law, which states: " Persons, who received access to private information of individuals in accordance with law or trust shall be prohibited from disclosing this information.
In accordance with of Law on Anti-Corruption (Article 11.1 and 2) adopted in 1996, an income and property statement is a part of personal secrets and protection and disclosure of these secrets are regulated by the Law on Individual Privacy
3. Law on Privacy of Organization says any organization shall determine list of
secrets and follow it. It gives possibility to include even simple information to make secret.
When considering balancing the right to privacy against the right to freedom of information and expression, the role of media in bringing to public attention matters of genuine public interests should be taken into account. Decisions of the European Commission and of national courts of in Europe indicate that the right to privacy does not prevent disclosure of information in the interests of preventing crime and protecting public order. Public persons must accept greater infringements on their privacy that ordinary people. In balancing the press freedom and the public's right to know on the one hand and the right to privacy and on other, the courts have tended to accord greater weight to the press's role as public "watchdog". In democratic countries the journalists have a legitimate rights to obtain information in the government database except those, which are within disclosure list. As concerns private information, the public is more interested in information of their interests, i.e. information on public figures elected by own desires, not by public pressure, who are more responsible than other people. Media freedom enables to provide information on public figures and assess their works. therefore, in accordance with international standards, politicians, public officials and celebrities accept that the scope of critics addressed to them is wider.
4. Criminal Law, Law on Military Recruitment, Law on Statistics, Law on
Criminal, Law on Treasury and others contain some restrictions on access information.
In contest of a democratic principles to freely access information and access information with restrictions, today in Mongolia right to freely access information is extremely limited for the public as whole, not only for journalists. Principle of accessing information with restrictions is served everywhere. It creates difficulties for journalists to fulfill their duties to provide information with public interests. World countries hold secret information as it prescribed in international documents on human rights. If secret list is expanded or too general, it brings confusion that all official information is secret. It will cause legally negative consequences in the society.
Democratic countries recognize that government should be transparent so information should be open to the public.
The right of a journalist to protect their information source is often said to be the only special right claimed by journalists. Other rights are generally regarded as being rights of all citizens. In Mongolia there are no laws guaranteeing this right.
Mass media has an important role in protection of public right to access information and respect for their interests. Journalists exercise more right to express opinion than ordinary people. In many countries of the world the journalists' right to protect the information source is supported and legislated. For instance, Austria, France, Germany, Sweden and other countries afforded the strongest legal protections to the confidentiality of sources. The Courts of Japan and Nigeria have been clear in recognizing the importance in allowing journalists to protect the confidentiality of their sources. The protection is premised on the assessment that society is better served by encouraging people to disclose matters of public interest to the press, even the information may include evidence of their wrongdoing, than by identifying and possibly convicting a particular wrongdoer.
European Commission has stated " the protection of sources from which journalists derive information is an essential means of enabling the press to perform its important function of public watchdog in a democratic society. If journalists could be compelled to reveal their sources, this would make it more difficult for them to obtain information and as a consequence, to inform the public about matters of public interest. The right to freedom of expression….therefore requires that any such compulsion must be limited to exceptional circumstances, where vital public or individual interests are at stake"
I would like to say a few words about Election laws. During the election campaign fundamental human rights as freedom of expression, speech, vote and to be elected become more important. In combination of these rights, mass media have duties to inform the public in main events, platforms of candidates and political parties. Objective information enables the public to make the right choice and elect the right people. As well as mass media must provide possibility for the candidates to present their election platforms.
Election laws on the Parliament, the President, Local Parliament and Referendum contain provisions related to media. Election laws note the specific rights of mass media to observe the polling as well as to attend the counting the votes in order to provide transparency. It is good but in terms of right freedom of information the law is bad.
In 2000 the Parliament adopted the Government program entitled Good governance for human securing and Action plan for its implementation includes activities on "studies and proposals on freedom of information legislation". It is good but it is sad that it is delayed.
Today we need a law guaranteeing freedom of information. Otherwise it will be shame to say Mongolia is democratic country. A group of experts in international law, national security, and human rights were adopted the Johannesburg principles on 1 October 1995. Based on that in 1999, ARTICLE 19- global organization on protection of freedom of expression had drawn principles on Freedom of information legislation. These include:
1. Freedom of information legislation should be guided by the principle of maximum disclosure
2. Public bodies should be under an obligation to publish key information
3. Promote open government
4. Exceptions should be clearly and narrowly drawn and subject to strict "harm" and public interest" tests
5. Requests for information should be processed fairly and independent review of any refusals should be available
6. Individuals should not be deterred from making requests for information by excessive costs
7. Meetings of public bodies should be open to the public
8. Laws, which are inconsistent with the principle of maximum disclosure should amended or repealed
The law on Freedom of Information should state clearly at the outset that its purpose is to provide the right of access to information. Public bodies have an obligation to disclose information and every member citizen has a corresponding right to receive information. This right should not require persons to demonstrate their interest in the information. Where a public authority seeks to deny access to information must justify the refusal at each step of proceeding. In order words, that person must show information it wishes to withhold comes within the scope of secrets. To properly implement the Law, other laws should be reviewed and amended. In this case the freedom of information legislation should have priorities.
The Criminal Code of Mongolia says that person seeking for secret information is a subject for punishment. How about the person posed the secret information? How about the loophole of leakers of secret documents? What will be happened if that information is public interest? There are no answers for us. If you are not corrupted and if you are not afraid from public please pass the Law on Freedom of Information.
It is crucial that NGOs and media outlets work together on drafting and passing of good law on freedom of information.