Chapter 7. The legal nature and composition of IGAIs in MENA countries

The chapter begins by observing that, among the four MENA region countries studied, only Jordan has not granted its IGAI an independent status. It then considers in detail the legal nature of the four IGAIs as collegial bodies, as well as the terms and conditions and the procedures for appointing their members.

    

The four MENA region countries examined in this report have or are about to set up collegial-body commissions that will act as national IGAIs. The provisions for Lebanon’s National Anti-Corruption Commission, which will act as an IGAI, have not yet been established and thus cannot be studied. In the case of Jordan, Tunisia, and Morocco, the IGAI’s independence from the government varies according to the law. Furthermore, in one case, the IGAI includes public officials whose work relates to the IGAI’s attributions, while in the other two cases, the institution’s composition is broader and more open to other competencies and to civil society. Lastly, in Jordan and in Morocco, the executive branch appoints the IGAI members, while in Tunisia, this role is held by the Assembly of the Representatives of the People.

7.1. The IGAIs’ attachment or independence

Jordan, Lebanon, Morocco, and Tunisia have all opted to give their IGAI a collegial body that is, either integrated into the state’s structures, or has its own legal independence. However, the procedures for appointing IGAI members vary. Given that Lebanon still does not have any laws for its National Anti-Corruption Commission and that it has not yet developed a draft law to fill this gap, this country’s situation will not be discussed in the following sections.

7.1.1. The creation of a collegial institution

Collegiality seeks to guarantee an IGAI’s independence, pluralism, and competency. It balances the different influences at work in the process of appointing the panel’s members. It acts in a collective, circumspect manner on complex topics of great importance to the society’s development (Menuret et al., 2012). Lawmakers may choose to establish collegial bodies with fewer members to favour confidentiality and the speed of decisions, as well as a general effectiveness of action. Some authorities have more members, which gives them a broader range of competencies and ensures the observance of a sense of pluralism by including the maximum number of perspectives, experts, or representatives from the relevant sectors.

Jordan, Lebanon, Morocco, and Tunisia have all decided to grant a collegial institution the mission of ensuring the right to access information. In Jordan, this is the nine-member Information Council1. The Tunisian Authority for Access to Information is also a collegial institution whose nine members have more varied origins than its Jordanian equivalent. According to the Moroccan law, this mission falls to the ten-member Commission on the Right to Access Information. Lastly, Lebanon has charged its National Anti-Corruption Commission with guaranteeing the provisions regarding the right to information, however without having determined the Commission’s composition.

7.1.2. An IGAI’s administrative attachment or independence

According to international principles2, an IGAI must be independent from the government administration, it is understood that the majority of cases it handles must involve individual citizens. In certain situations, IGAIs are completely independent administrative authorities created to meet several goals, including the provision of a strong guarantee of impartiality from the state to the public, and ensuring the effectiveness of government intervention in terms of speed, adaptation to changes in needs and markets, and continuity of action. An IGAI’s creation may also partly be a political response to the aspiration to new modes of regulating the economy and society, by giving a large space to mediation, and by paying closer attention to actual transparency in the government’s actions (French Council of State, 2001).

In the four MENA region countries examined in this report, lawmakers did not always make the same choices. Some IGAIs are directly attached to administrative departments and do not have a legal personality separate from that of the state. They come under the hierarchical authority of the head of the administration into which they have been inserted. This person might be the Prime Minister, by virtue of his/her power of regulation and investigation under ordinary laws, or a minister when the legislation explicitly designates such a person. Jordanian lawmakers did not want the Information Council to be independent of the government; therefore, they placed the Minister of Culture in charge of it (Mendel, 2016).

In Morocco, Article 22 of the law on access to information states that the president of the Commission on Access to Information is named by the King and 6 of its members are appointed by independent constitutional bodies. The Commission is however under the authority of the Head of Government. The lack of decree providing a framework for the implementation of the law has led to the formulation of hypotheses regarding the extent of its subordination. The Commission would report directly to the Head of Government and consequently would be under his/her direct authority. It would thus not have the status of an independent administrative authority, like the Supervisory Commission for the Protection of Personal Data; it is instead an administrative unit without its own legal personality.

To the contrary, Article 37 of the Tunisian law established an independent public authority with its own legal personality. The law does not determine the exact legal nature of the Authority for Access to Information; therefore, it may have the status of either an independent administrative authority pursuant to Tunisian law, or that of a specialised administrative court. The two hypotheses are presented below, without case law having taken up this matter to date.

On the one hand, it may be an independent administrative authority to the extent that it has its characteristics, namely those of a state institution responsible for ensuring, in the state’s name, the regulation of sectors that society considers essential and where the intervention of the executive branch remains limited. Similarly to other independent administrative authorities, the Authority for Access to Information will have a certain number of powers (recommendation, decision, regulation, and sanction). The commission’s administrative nature arises from its delegation of certain responsibilities traditionally assigned to the government. Its independence comes from the law that created it, which provides that it is independent of the sectors it oversees and of the public authorities3. Considering the importance of the Authority for Access to Information for the preservation of public freedoms, one can legitimately imagine that lawmakers intended to grant it a legal status much like that of the constitutional authorities established under the 2014 Constitution, which occupy an important place in the organisation of essential sectors for democracy and rule of law in Tunisia (Martinez, 2014).

On the other hand, the judiciary role of the Authority for Access to Information could also come from several articles of the organic law on access to information that describe a judiciary procedure. In particular, Article 38 on the Authority’s attributions provides that it is responsible for “deciding appeals submitted to it on access to information. To this end and as necessary, it may conduct all necessary investigations on site at the body in question, carry out all investigative procedures, and question anyone whose testimony is deemed useful”. Article 31 of the law also regulates the procedure for appealing the Authority’s decisions before an administrative court. Likewise, Article 61 of the law containing transitory provisions specifies that “the administrative court continues to rule on appeals against decisions refusing access to information that fall within its jurisdiction before the authority begins its operations, in accordance with the rules and procedures provided in Decree-Law No. 2011-41 of 26 May 2011 on access to government documents held by pubic bodies, as amended and supplemented by Decree-Law No. 2011-54 of 11 June 2011”. Given the impossibility arising from the law of determining the legal nature of the Authority for Access to Information as either an independent administrative authority or as a court, we must therefore wait for the case law of the courts holding jurisdiction to decide this matter.

7.2. The appointment and composition of the IGAIs

The broad participation in IGAIs of persons of different origins and competencies, especially professionals, as well as the terms and conditions for appointing the members are decisive to an IGAI’s independence and credibility.

7.2.1. The composition and qualities expected of IGAI members

The composition

The composition of the IGAIs in Jordan, Tunisia, and Morocco expresses the intention to link them with the body responsible for protecting personal data. Morocco’s Commission for Access to Information is presided over by the President of the National Supervisory Commission for the Protection of Personal Data. This rapprochement coincides with current evolutions in OECD member countries.

In general, the members of the IGAIs in Jordan, Tunisia, and Morocco come mostly from the government and the upper administration, or they more broadly represent the diversity of the society. In the case of Morocco and Tunisia, one can note the intent to establish a relationship between the IGAI and the archive preservation departments. Besides that, Jordan’s IGAI includes the Human Rights Commissioner, and Morocco’s IGAI includes a representative from the National Human Rights Council and a representative from the Ombudsman Institution. The presence of a representative from the National Authority on Probity and the Fight against Corruption in Morocco’s Commission on Access to Information brings it closer to the goal of fighting corruption, which also led to the creation of Lebanon’s IGAI.

It should be noted that most of the members of Jordan’s IGAI are high-ranking public officials in office. It is composed of the following members: the Minister of Culture (president), the Information Commissioner (vice-president), the secretary general of the Ministry of Justice, the secretary general of the Ministry of the Interior, the secretary general of the Media Council, the Director of the Statistics Department, the Director of the Centre for Training and technology, and Ethics Director for the Armed Forces, and the Human Rights Commissioner. Such a composition for an IGAI diverges from the practice within OECD member countries, where public officials subject to a hierarchy are limited in number to ensure the IGAI’s independence from the executive branch, against which most of the complaints are filed. However, a draft amendment of the Jordanian law is now being examined by the Parliament. This draft proposes that the President of the Jordan Press Association (JPA) and the Jordan Bar Association, as well as the Director of the Media Commission all become members of the Council. Such a development would bring Jordan’s IGAI more in line with the IGAIs in OECD member countries.

The board of the Tunisian Authority for Access to Information is composed of nine members (Art. 41): an administrative judge (president), a judge from an ordinary court (vice-president), a member of the National Statistics Council, a university professor specialised in ICT, an expert in government documents, an attorney, and a journalist. These individuals must demonstrate a minimum of ten years of actual working experience as of the date of the presentation of their application. These members are supplemented by a representative from the Authority for the Protection of Personal Data who must have worked within this institution for a minimum of two years, and a representative of associations active in fields related to access to information. This person must have held a managerial position within one of these associations for a period of at least two years. Therefore, Tunisian lawmakers sought to take their distance from the government sphere and to place emphasis on the independence of the decisions made by the Authority’s members. In fact, it is essentially made up of judges, university professors, and representatives of various professions and from civil society.

The law on access to information seeks to turn the Moroccan IGAI into a body that is largely representative of the public powers, institutions, and society, one which has a majority of members that come from independent institutions or who themselves hold an independent status. The Commission on Access to Information is chaired by the President of the National Supervisory Commission for the Protection of Personal Data, who is appointed by the King from among those persons known for their impartiality, probity, and competence in the domains of the law, courts, or information4. The IGAI is composed of a representative from the Archives of Morocco (which brings it closer to Jordan’s IGAI), two representatives of the government administration designated by the Head of Government, a member designated by the President of the Chamber of Representatives, a member designated by the President of the Chamber of Councillors, a representative from civil society known for his/her competency and experience in the field of access to information, who is designated by the Head of Government. It also includes a representative from the following constitutional institutions: the national Authority for Probity and the Fight against Corruption, the National Human Rights Council, and the Ombudsman Institution.

Table ‎7.1. Composition of the Jordanian, Tunisian and Moroccan IGAIs
Members	Jordan	Tunisia	Morocco
Minister	1 (president)
Director of archives and libraries	1 (Information Commissioner)	1	1
Person responsible for data protection	1	1	1 (president)1
Person responsible for fighting corruption	-	-	1
Person responsible for human rights/Ombudsman	1	-	22
Person responsible for the media	1	-	-
High-ranking public officials	4	1	2
Judges	-	2 (one of which is the president)	-
Academic	-	1	-
Attorney	-	1	-
Journalist	-	1	-
Representative from civil society	-	1	1
Members designated by Parliament	-	*	2
Total	9	9	10
Note: All members of Tunisia’s IGAI are elected by Parliament
← 1. The President of the National Control Commission for the Protection of Personal Data.
← 2. The President of the National Council of Human Rights and the Mediator.
Source: Compilation by the authors using the texts of the Jordanian, Tunisian, and Moroccan laws on IGAIs.

The qualities expected of IGAI members

The laws in force in Jordan, Tunisia, and Morocco seek to establish the necessary conditions for the proper fulfilment of the missions of institutions responsible for access to information by their members. Generally, members of these IGAIs are prominent individuals who have great moral authority that allows them to enforce their positions before the entities required to provide information.

All the laws also provide for the obligation of nationality and the observance of ethics at the highest level, as well as an obligation of professional activity, experience, or competency in the field in question, or in related fields, or ones that concern access to information. All of these obligations are either explicitly stated in the law creating the IGAI, or form the corollary of the qualification of the public official.

We should note that the contribution of IGAIs to freedom of information is due largely to the independence granted to its members in the performance of their duties within the institution. The laws of some of the countries being examined emphasise the autonomy or independence of IGAI members in the performance of their duties. However, we must note that a minister will be tied by the duty of governmental solidarity, and that an official will submit to a hierarchy. For these reasons, one should guarantee that the IGAI’s decision-making bodies sufficiently represent different social interests to guarantee that they mutually balance one another.

7.2.2. The designation of IGAI members

Designation constitutes the administrative act with which the responsible authority selects a person called to occupy a specific position. This power may lead the authority in question to choose at its discretion, to suggest a person for a position, or lastly just to confirm the designation of someone who has been proposed (formal power of appointment). The designation entails the delegation of powers tied to the position. It often also helps, for example when the IGAI member already holds a permanent public position, to signify the independence of the authority in question (Gérald, 2006). The modes of appointing IGAIs in Jordan, Morocco, and Tunisia are characterised by their relative diversity.

The law does not determine the mode of appointing members of the Jordanian IGAI, but it refers to their positions or roles in the government and the administration to substantiate their appointment. Article 40 of the Tunisian organic law on the right to access information specifies that the Authority for Access to Information is composed of a board and a permanent secretary. Board members are designated by the Assembly of the Representatives of the People. The designation process is characterised by its formalism, openness to competition, and transparency. Members of the Authority are appointed by the Head of Government for a non-renewable term of office of six years, upon a decision by the Assembly of the Representatives of the People. A call for applications is launched at the decision of the President of the Specialised Commission of the Assembly of the Representatives of the People, and is published in the Official Journal of the Republic of Tunisia. This call for applications sets the deadline and the procedures for filing applications, as well as the conditions to be met. The Specialised Commission selects and ranks the best three candidates for each position by a three-fifths majority of its members in a secret vote. The candidates who win the most votes are selected, depending on their ranking. In case of an equal number of votes for a man and a woman, the woman shall be selected, and in case of an equal number of votes between two men, the younger one will be selected. The President of the Assembly of the Representatives of the People sends a list to a plenary session of the Assembly that contains the ranking of the three best candidates for each position in order to choose the Authority’s members. The plenary session of the Assembly of the Representatives of the People votes to choose a candidate for each position with an absolute majority of all members in a secret vote. The President of the Assembly of the Representatives of the People sends the list of Authority members elected by the General Assembly to the Head of Government. In July 2017, the Assembly of the Representatives of the People elected the members of the Authority by a wide majority in this way5.

According to the Moroccan law, the IGAI’s members are appointed by the public authorities and certain administrative authorities that exercise considerable independence. The IGAI’s president is the President of the National Supervisory Commission for the Protection of Personal Information. Two representatives from the government administration are designated by the Head of Government. The President of each Chamber of Parliament designate each one member, as will the Ombudsman Institution, the National Human Rights Council, the Archives of Morocco, and the National Authority for Probity and the Fight against Corruption. Lastly, one member represents a civil society organisation working in the field of access to information. He is appointed by the Head of Government.

Notes

← 1. See: Mendel, T. (2016), “Analysis of Law No. 27 for the Year 2007 Guaranteeing the Right to Obtain Information’, UNESCO, Amman, pg. 18, paragraph 2.

← 2. Ibid.

← 3. See: Gaddes, C. (2009), Les autorités administratives indépendantes à travers les avis du conseil constitutionnel, analyse critique des avis 50 et 83 de 2007 [“Independent government authorities through the opinions of the constitutional council, a critical analysis of opinions 50 and 83 of 2007”], India, F.D.S.E.P.S. & A.T.D.C, Constitution & Administration, http://www.chawki.gaddes.org/resources/sousse.pdf.

← 4. National Supervisory Commission for the Protection of Personal Data of the Kingdom of Morocco, “Legislation on the protection of personal data”, www.cndp.ma/fr/espace-juridique/textes-et-lois.html.

← 5. Réalités Online, Élection des membres de l’instance d’accès à l’information [“Election of members of the information access authority”], 18 juillet 2017,www.realites.com.tn/2017/07/arp-election-du-president-et-du-vice-president-de-linstance-dacces-a-linformation.

Chapter 7. The legal nature and composition of IGAIs in MENA countries