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Council of Europe fights for your Right to Know, too

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Authors: Eugene Matos de Lara and Audrey Beaulieu

“People have the right to know what those in power are doing” -Dunja Mijatovic Council of Europe, Commissioner for Human Rights.

Access to information legislation was first seen in 1766 in Sweden, with parliamentary interest to access information held by the King. Finland in 1951, the United States in 1966, and Norwayin 1970 also adopted similar legislation. Today there are 98 states with access laws; of these, more than 50 incorporated in their constitution. The Inter-American Court of Human Rights 2006 and the European Court of Human Rights 2009 both ruled that access to information is a human right, confirmed in July 2011 by the United Nations Human Rights Committee, a sine qua non of 21st-century democracy.

Global civil society movements have been promoting transparency, with activists and journalists reporting daily on successes in obtaining information and denouncing obstacles and frustrations in the implementation of this right. To this end, the Council of Europe was inspired by pluralistic and democratic ideals for greater European unity, adopted the Council of Europe Convention on Access to Official Documents recognising a general right of access to official documents held by public authorities. It brings a minimum standard for the fair processing of requests for access to official documents with the obligation for member states to secure independent review for restricted documents unless with held if the protection of the documents is considered legitimate.

The right to freedom of information

Access to information is a government scrutiny tool. Without it, human rights violations, corruption cases, and anti-democratic practices would never be uncovered. Besides exposing demerits, the policy is also known to improve the quality of public debates while increasing participation in the decision making process. Indeed, transparency of authorities should be regarded as a fundamental precondition for the enjoyment of fundamental rights, as guaranteed by Article 10 of the European Convention on Human Rights. The policy equips citizens and NGOs with the necessary tool to counter refusal from authorities to provide information. The European Court of Human Rights recognized that withheld documents could be accessed in specific circumstances. In principle, all information should be available, and those upheld can also be accessed, particularly when access to that particular information is crucial for the individual or group to exercise their freedoms unless of course, the information is of national security or of private nature.

Access to information in times of crisis a first line weapon against fake news

The COVID pandemic has enabled us to test access policies and benchmark the effectiveness of the right to know during trivial times, as Dunja Mijatovic mentioned. In fact, having easy access to reliable information protects the population from being misled and misinformed, a first-line weapon dismantling popular fake news and conspiracies. Instead, during COVID, access to information has supported citizens in responding adequately to the crisis. Ultimately, transparency is also a trust-building exercise.

Corruption and environmental issues

Information is a weapon against corruption. The Council of Europe Group of States against Corruption (GRECO) is looking at the specific issue of access to official documents in the context of its Fifth Evaluation Round, which focuses on preventing corruption and promoting integrity in central governments and law enforcement agencies. In about a third of the reports published so far, GRECO has recommended the state to improve access to official documents. In regards to the environment, the United Nations Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, commonly referred to as the Aarhus Convention, expands the right of access to information on environmental matters thus complementing the Tromsø Convention. Declaring these policies as the primary tools that empower citizens and defenders to protect the environment we live in.

Good models exist

Most Council of Europe member states have adequate mechanisms regarding the right to information. For example, in Estonia, “the Public Information Act provides for broad disclosure of public information” states Mijatovic. Moreover, “in Croatia, Serbia, Slovenia and several other countries there is an independent oversight body – such as an Information Commissioner – responsible for monitoring and enforcing the right to information, while some other countries entrust Parliamentary Ombudsmen with supervision of the right of access to information”. Finally, “the constitutions of several European countries do indeed guarantee the fundamental right to information.” Nonetheless, there are still in consistent levels of transparency among state institutions or a failure to meet the requirement for proactive disclosure. The entry into force of the Tromso Convention willbe an opportunity to bring back to the table the importance of the right to information and to read just European States practices regarding the enhancement.

Barriers and Challenges

Digitization is still recent, and authorities are not accustomed to dealing openly. There is a sentiment of reservation and caution. Before the advent of the internet, governments enjoyed a level of political efficiency and practical obscurity. Viewing public records required the time and effort of a visit to the records’ physical location and prevented easy access to details of individual files. Openness has made the policy cycle longer, with a more thorough consultation process and debates. The availability of digital documents has caused an unavoidable conflict.

One of the conflicts is a privacy protection and policy safeguards invoked against freedom of information requests. Requirements to provide transparency of activities must be mitigated with national security, individuals’ safety, corporate interests, and citizens’ right to privacy. Finding the right balance is essential to understand how local governments manage the dichotomy between providing open access to their records by maintaining the public’s privacy rights.

Several governments think twice before pursuing transparency policies. Access to information hasn’t been a priority for some of the European States. Mijatovic reported that “filtering of information and delays in responses to freedom of information requests have been observed in several member states”. Although there is a growth in these laws’ popularity, we are always a step behind meeting the supply and demand of information objectives in an era of digitization.

Legal perspectives

Tromso Convention has only been ratified by eleven countries, which are mostly located in Scandinavia (Finland, Norway and Sweden) or in Eastern Europe (Bosnia, Estonia, Hungary, Lithuania, Moldavia and Ukraine). Reading this statement, three questions should come to our minds:

1.    Why not all European states have ratified Tromso Convention?

2.    Why do Scandinavian countries have chosen to ratify the Convention?

3.    Why are most of the Member States from Eastern Europe?

Regarding the first question, the answer resides in the fact that the ones who haven’t taken part in the Convention already have strong national laws protecting freedom of information and don’t need to bother with extra protection and external surveillance. For instance, Germany passed a law in 2005, promoting the unconditional right to access information. Many other European states such as Belgium, Croatia, Denmark, France &Poland have similar national law.

Regarding the second question, considering that all Scandinavian countries already have national laws assessing freedom of information, the most likely reason behind their ratification would be symbolic support to the cause or because the Convention’s framework is less restrictive than their national laws.

Finally, concerning the last question, we could suppose that most Eastern countries have an interest in demonstrating themselves as more transparent, more following the rule of law. For example, if we examine Montenegro’s case, we could assume that taking part in the Tromso Convention is a step closer to their accession to the EU in 2025.

As for the reservations that have been made, only Finland, Norway and Sweden have made some noticeable. Regarding Norway, the country declared that “communication with the reigning Family and its Household” will remain private in accordance with Article 3,paragraph 1 of the Convention. This limitation covers something interesting, considering that, as mentioned earlier, access to the data type of legislation was first adopted in order to get access to information held by the King. In parallel, Finland declared that “the provisions of Article 8 of the Convention concerning the review procedure [will] not apply to a decision made by the President of the Republic in response to a request for access to a document. Article 8 provides protection against arbitrary decisions and allows members of the population to assert their right to information. Sweden has made a similarreservation on Article 8 paragraph 1 regarding “decisions taken by the Government, ministers and the Parliamentary Ombudsmen”.

Thoughts towards better implementation

For smoother data access implementation, governments can act on transparency without waiting for legislation through internal bureaucratic policy. These voluntary provisions for openness can be an exercise towards a more organic cultural transformation.

Lengthy debates on open access are entertained by exceptions to access. To be sure, governments have enough legal and political tools to withhold information, regardless of how exemptions have been drafted. Instead, a more productive and efficient process is possible if we concentrate on positive implementation and enforcement, including the procedures for challenges on legal exemptions.

The implementation phase of access laws is challenging due to a lack of leadership motivation, inadequate support for those implementing these requests, especially since they require a long term social and political commitment. To do so, an overall dedication and government bureaucratic cultural shift should take place. Although the implementation of access to information should be included internally in all departments, considering a standardized centralized approach to lead the new regime with authority could send an important message. Record keeping and archiving should be updated to respond to requests with improved information management systems. As such, the goal would be to make a plethora of information immediately and unconditionally available.

International private Law specialist of the University of Ottawa. He is the former publisher of the academic journal Border Crossing.

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Iceland’s Historic(al) Elections

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The morning of September, 26 was a good one for Lenya Run Karim of the Pirate Party. Once the preliminary results were announced, things were clear: the 21-year-old law student of the University of Iceland, originating from a Kurdish immigrant family, had become the youngest MP in the country’s history.

In historical significance, however, this event was second to another. Iceland, the world champion in terms of gender equality, became the first country in Europe to have more women MPs than men, 33 versus 30. The news immediately made world headlines: only five countries in the world have achieved such impressive results. Remarkably, all are non-European: Rwanda, Nicaragua and Cuba have a majority of women in parliament, while Mexico and the UAE have an equal number of male and female MPs.

Nine hours later, news agencies around the world had to edit their headlines. The recount in the Northwest constituency affected the outcome across the country to delay the ‘triumph for women’ for another four years.

Small numbers, big changes

The Icelandic electoral system is designed so that 54 out of the 63 seats in the Althingi, the national parliament, are primary or constituency seats, while another nine are equalization seats. Only parties passing the 5 per cent threshold are allowed to distribute equalisation seats that go to the candidates who failed to win constituency mandates and received the most votes in their constituency. However, the number of equalisation mandates in each of the 6 constituencies is legislated. In theory, this could lead to a situation in which the leading party candidate in one constituency may simply lack an equalisation mandate, so the leading candidate of the same party—but in another constituency—receives it.

This is what happened this year. Because of a difference of only ten votes between the Reform Party and the Pirate Party, both vying for the only equalisation mandate in the Northwest, the constituency’s electoral commission announced a recount on its own initiative. There were also questions concerning the counting procedure as such: the ballots were not sealed but simply locked in a Borgarnes hotel room. The updated results hardly affected the distribution of seats between the parties, bringing in five new MPs, none of whom were women, with the 21-year-old Lenya Run Karim replaced by her 52-year-old party colleague.

In the afternoon of September, 27, at the request of the Left-Green Movement, supported by the Independence Party, the Pirates and the Reform Party, the commission in the South announced a recount of their own—the difference between the Left-Greens and the Centrists was only seven votes. There was no ‘domino effect’, as in the case of the Northwest, as the five-hour recount showed the same result. Recounts in other districts are unlikely, nor is it likely that Althingi—vested with the power to declare the elections valid—would invalidate the results in the Northwest. Nevertheless, the ‘replaced’ candidates have already announced their intention to appeal against the results, citing violations of ballot storage procedures. Under the Icelandic law, this is quite enough to invalidate the results and call a re-election in the Northwest, as the Supreme Court of Iceland invalidated the Constitutional Council elections due to a breach of procedure 10 years ago. Be that as it may, the current score remains 33:30, in favor of men.

Progressives’ progress and threshold for socialists

On the whole, there were no surprises: the provisional allocation of mandates resembles, if with minor changes, the opinion polls on the eve of the election.

The ruling three-party coalition has rejuvenated its position, winning 37 out of the 63 Althingi seats. The centrist Progressive Party saw a real electoral triumph, improving its 2017 result by five seats. Prime-minister Katrín Jakobsdóttir’s Left-Green Movement, albeit with a slight loss, won eight seats, surpassing all pre-election expectations. Although the centre-right Independence Party outperformed everyone again to win almost a quarter of all votes, 16 seats are one of the worst results of the Icelandic ‘Grand Old Party’ ever.

The results of the Social-Democrats, almost 10% versus 12.1% in 2017, and of the Pirates, 8.6% versus 9.2%, have deteriorated. Support for the Centre Party of Sigmundur Gunnlaugsson, former prime-minister and victim of the Panama Papers, has halved from 10.9% to 5.4%. The centrists have seen a steady decline in recent years, largely due to a sexist scandal involving party MPs. The populist People’s Party and the pro-European Reform Party have seen gains of 8.8% and 8.3%, as compared to 6.9% and 6.7% in the previous elections.

Of the leading Icelandic parties, only the Socialist Party failed to pass the 5 per cent threshold: despite a rating above 7% in August, the Socialists received only 4.1% of the vote.

Coronavirus, climate & economy

Healthcare and the fight against COVID-19 was, expectedly, on top of the agenda of the elections: 72% of voters ranked it as the defining issue, according to a Fréttablaðið poll. Thanks to swift and stringent measures, the Icelandic government brought the coronavirus under control from day one, and the country has enjoyed one of the lowest infection rates in the world for most of the time. At the same time, the pandemic exposed a number of problems in the national healthcare system: staff shortages, low salaries and long waiting lists for emergency surgery.

Climate change, which Icelanders are already experiencing, was an equally important topic. This summer, the temperature has not dropped below 20°C for 59 days, an anomaly for a North-Atlantic island. However, Icelanders’ concerns never converted into increased support for the four left-leaning parties advocating greater reductions in CO2 emission than the country has committed to under the Paris Agreement: their combined result fell by 0.5%.

The economy and employment were also among the main issues in this election. The pandemic has severely damaged the island nation’s economy, which is heavily tourism-reliant—perhaps, unsurprisingly, many Icelanders are in favor of reviving the tourism sector as well as diversifying the economy further.

The EU membership, by far a ‘traditional’ issue in Icelandic politics, is unlikely to be featured on the agenda of the newly-elected parliament as the combined result of the Eurosceptics, despite a loss of 4%, still exceeds half of the overall votes. The new Althingi will probably face the issue of constitutional reform once again, which is only becoming more topical in the light of the pandemic and the equalization mandates story.

New (old) government?

The parties are to negotiate coalition formation. The most likely scenario now is that the ruling coalition of the Independence Party, the Left-Greens and the Progressives continues. It has been the most ideologically diverse and the first three-party coalition in Iceland’s history to last a full term. A successful fight against the pandemic has only strengthened its positions and helped it secure additional votes. Independence Party leader and finance minister Bjarni Benediktsson has earlier said he would be prepared to keep the ruling coalition if it holds the majority. President Guðni Jóhannesson announced immediately after the elections that he would confirm the mandate of the ruling coalition to form a new government if the three parties could strike a deal.

Other developments are possible but unlikely. Should the Left-Greens decide to leave the coalition, they could be replaced by the Reform Party or the People’s Party, while any coalition without the Independence Party can only be a four-party or larger coalition.

Who will become the new prime-minister still remains to be seen—but if the ruling coalition remains in place, the current prime-minister and leader of the Left-Greens, Katrín Jakobsdóttir, stands a good chance of keeping her post: she is still the most popular politician in Iceland with a 40 per cent approval rate.

The 2021 Althingi election, with one of the lowest turnouts in history at 80.1%, has not produced a clear winner. The election results reflect a Europe-wide trend in which traditional “major” parties are losing support. The electorate is fragmenting and their votes are pulled by smaller new parties. The coronavirus pandemic has only reinforced this trend.

The 2021 campaign did not foreshadow a sensation. Although Iceland has not become the first European country with a women’s majority in parliament, these elections will certainly go down in history as a test of Icelanders’ trust to their own democracy.

From our partner RIAC

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EU-Balkan Summit: No Set Timeframe for Western Balkans Accession

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From left to right: Janez JANŠA (Prime Minister, Slovenia), Charles MICHEL (President of the European Council), Ursula VON DER LEYEN (President of the European Commission) Copyright: European Union

On October 6, Slovenia hosted a summit between the EU and the Western Balkans states. The EU-27 met with their counterparts (Albania, Bosnia-Herzegovina, Serbia, Montenegro, North Macedonia and Kosovo) in the sumptuous Renaissance setting of Brdo Castle, 30 kilometers north of the capital, Ljubljana. Despite calls from a minority of heads of state and government, there were no sign of a breakthrough on the sensitive issue of enlargement. The accession of these countries to the European Union is still not unanimous among the 27 EU member states.

During her final tour of the Balkans three weeks ago, German Chancellor Angela Merkel stated that the peninsula’s integration was of “geostrategic” importance. On the eve of the summit, Austrian Chancellor Sebastian Kurz backed Slovenia’s goal of integrating this zone’s countries into the EU by 2030.

However, the unanimity required to begin the hard negotiations is still a long way off, even for the most advanced countries in the accession process, Albania and North Macedonia. Bulgaria, which is already a member of the EU, is opposing North Macedonia’s admission due to linguistic and cultural differences. Since Yugoslavia’s demise, Sofia has rejected the concept of Macedonian language, insisting that it is a Bulgarian dialect, and has condemned the artificial construction of a distinct national identity.

Other countries’ reluctance to join quickly is of a different nature. France and the Netherlands believe that previous enlargements (Bulgaria and Romania in 2007) have resulted in changes that must first be digested before the next round of enlargement. The EU-27 also demand that all necessary prior guarantees be provided regarding the independence of the judiciary and the fight against corruption in these countries. Despite the fact that press freedom is a requirement for membership, the NGO Reporters Without Borders (RSF) urged the EU to make “support for investigative and professional journalism” a key issue at the summit.”

While the EU-27 have not met since June, the topic of Western Balkans integration is competing with other top priorities in the run-up to France’s presidency of the EU in the first half of 2022. On the eve of the summit, a working dinner will be held, the President of the European Council, Charles Michel, called for “a strategic discussion on the role of the Union on the international scene” in his letter of invitation to the EU-Balkans Summit, citing “recent developments in Afghanistan,” the announcement of the AUKUS pact between the United States, Australia, and the United Kingdom, which has enraged Paris.

The Western Balkans remain the focal point of an international game of influence in which the Europeans seek to maintain their dominance. As a result, the importance of reaffirming a “European perspective” at the summit was not an overstatement. Faced with the more frequent incursion of China, Russia, and Turkey in that European region, the EU has pledged a 30 billion euro Economic and Investment Plan for 2021-2027, as well as increased cooperation, particularly to deal with the aftermath of the Covid-19 pandemic.

Opening the borders, however, is out of the question. In the absence of progress on this issue, Albania, North Macedonia, and Serbia have decided to establish their own zone of free movement (The Balkans are Open”) beginning January 1, 2023. “We are starting today to do in the region what we will do tomorrow in the EU,” said Albanian Prime Minister Edi Rama when the agreement was signed last July.

This initiative, launched in 2019 under the name “Mini-Schengen” and based on a 1990s idea, does not have the support of the entire peninsular region, which remains deeply divided over this project. While Bosnia and Herzegovina and Montenegro are not refusing to be a part of it and are open to discussions, the Prime Minister of Kosovo, Albin Kurti, who took office in 2020, for his part accuses Serbia of relying on this project to recreate “a fourth Yugoslavia”

Tensions between Balkan countries continue to be an impediment to European integration. The issue of movement between Kosovo and Serbia has been a source of concern since the end of September. Two weeks of escalation followed Kosovo’s decision to prohibit cars with Serbian license plates from entering its territory, in response to Serbia’s long-standing prohibition on allowing vehicles to pass in the opposite direction.

In response to the mobilization of Kosovar police to block the road, Serbs in Kosovo blocked roads to their towns and villages, and Serbia deployed tanks and the air force near the border. On Sunday, October 3, the conflict seemed to be over, and the roads were reopened. However, the tone had been set three days before the EU-Balkans summit.

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German Election: Ramifications for the US Foreign Policy

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Image source: twitter @OlafScholz

In the recent German election, foreign policy was scarcely an issue. But Germany is an important element in the US foreign policy. There is a number of cases where Germany and the US can cooperate, but all of these dynamics are going to change very soon.

The Germans’ strategic culture makes it hard to be aligned perfectly with the US and disagreements can easily damage the relations. After the tension between the two countries over the Iraq war, in 2003, Henry Kissinger said that he could not imagine the relations between Germany and the US could be aggravated so quickly, so easily, which might end up being the “permanent temptation of German politics”. For a long time, the US used to provide security for Germany during the Cold War and beyond, so, several generations are used to take peace for granted. But recently, there is a growing demand on them to carry more burden, not just for their own security, but for international peace and stability. This demand was not well-received in Berlin.

Then, the environment around Germany changed and new threats loomed up in front of them. The great powers’ competition became the main theme in international relations. Still, Germany was not and is not ready for shouldering more responsibility. Politicians know this very well. Ursula von der Leyen, who was German defense minister, asked terms like “nuclear weapons” and “deterrence” be removed from her speeches.

Although on paper, all major parties appreciate the importance of Germany’s relations with the US, the Greens and SPD ask for a reset in the relations. The Greens insist on the European way in transatlantic relations and SPD seeks more multilateralism. Therefore, alignment may be harder to maintain in the future. However, If the tensions between the US and China heat up to melting degrees, then external pressure can overrule the internal pressure and Germany may accede to its transatlantic partners, just like when Helmut Schmid let NATO install medium-range nuclear missiles in Europe after the Soviet Union attacked Afghanistan and the Cold War heated up.

According to the election results, now three coalitions are possible: grand coalition with CDU/CSU and SPD, traffic lights coalition with SPD, FDP, and Greens, Jamaica coalition with CDU/CSU, FDP, and Greens. Jamaica coalition will more likely form the most favorable government for the US because it has both CDU and FDP, and traffic lights will be the least favorite as it has SPD. The grand coalition can maintain the status quo at best, because contrary to the current government, SPD will dominate CDU.

To understand nuances, we need to go over security issues to see how these coalitions will react to them. As far as Russia is concerned, none of them will recognize the annexation of Crimea and they all support related sanctions. However, if tensions heat up, any coalition government with SPD will be less likely assertive. On the other hand, as the Greens stress the importance of European values like democracy and human rights, they tend to be more assertive if the US formulates its foreign policy by these common values and describe US-China rivalry as a clash between democracy and authoritarianism. Moreover, the Greens disapprove of the Nordstream project, of course not for its geopolitics. FDP has also sided against it for a different reason. So, the US must follow closely the negotiations which have already started between anti-Russian smaller parties versus major parties.

For relations with China, pro-business FDP is less assertive. They are seeking for developing EU-China relations and deepening economic ties and civil society relations. While CDU/CSU and Greens see China as a competitor, partner, and systemic rival, SPD and FDP have still hopes that they can bring change through the exchange. Thus, the US might have bigger problems with the traffic lights coalition than the Jamaica coalition in this regard.

As for NATO and its 2 percent of GDP, the division is wider. CDU/CSU and FDP are the only parties who support it. So, in the next government, it might be harder to persuade them to pay more. Finally, for nuclear participation, the situation is the same. CDU/CSU is the only party that argues for it. This makes it an alarming situation because the next government has to decide on replacing Germany’s tornados until 2024, otherwise Germany will drop out of the NATO nuclear participation.

The below table gives a brief review of these three coalitions. 1 indicates the lowest level of favoritism and 3 indicates the highest level of favoritism. As it shows, the most anti-Russia coalition is Jamaica, while the most anti-China coalition is Trafic light. Meanwhile, Grand Coalition is the most pro-NATO coalition. If the US adopts a more normative foreign policy against China and Russia, then the Greens and FDP will be more assertive in their anti-Russian and anti-Chinese policies and Germany will align more firmly with the US if traffic light or Jamaica coalition rise to power.

Issues CoalitionsTrafic LightGrand CoalitionJamaica
Russia213 
China312 
NATO132 

1 indicates the lowest level of favoritism. 3 indicates the highest level of favoritism.

In conclusion, this election should not make Americans any happier. The US has already been frustrated with the current government led by Angela Merkel who gave Germany’s trade with China the first priority, and now that the left-wing will have more say in any imaginable coalition in the future, the Americans should become less pleased. But, still, there are hopes that Germany can be a partner for the US in great power competition if the US could articulate its foreign policy with common values, like democracy and human rights. More normative foreign policy can make a reliable partner out of Germany. Foreign policy rarely became a topic in this election, but observers should expect many ramifications for it.

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