ISLAMABAD: In the wake of Panama Leaks, rumour mills are in full swing and have started churning out about the very future of democracy in the country. In such a scenario, it is all the more important to strengthen democratic institutions in the country through an effective Right to Information (RTI) law.
ISLAMABAD: The Pakistan Muslim League-Nawaz (PML-N) government is still dragging its feet on the federal Right to Information (RTI) law despite approval of the bill by the Senate Standing Committee more than two years ago.
Even 10 years ago while signing the Charter of Democracy (COD) with the Pakistan People’s Party, the PML-N had agreed to pass a law on access to information but the promise could not become reality to date. Since April 2014 when the bill was passed by the Senate Standing Committee on Information, the Minister for Information Parvaiz Rashid promised on numerous occasion to bring the bill in the next cabinet meeting but the same could not be fulfilled.
Pakistan People’s Party which failed to pass the bill during its own 5-year-tenure is urging the government to enact the law immediately. Former President and Co-Chairman of PPP Asif Ali Zardari has reiterated the call on Monday on the eve of World Press Freedom Day.
However the government does not seem to be in hurry on the issue. Talking to The News in January this year the Minister for Information Parvez Rashid had claimed the bill will be cleared in a single sitting of a five-member parliamentary committee of the ruling party.
“Since the cabinet meeting has not been taking place for a long time and the (RTI) bill was getting delayed, the prime minister decided to form a committee to consider this law. This is a way out to table the bill in Parliament as soon as possible,” said the minister.
The committee, comprising Parvaiz Rashid, Ahsan Iqbal, Anusha Rahman Khan, Irfan Siddiqui and Marriyum Aurangzeb, was supposed to formulate recommendations on the Right to Information Bill 2014.
However four months after the latest promise the committee is yet to finalise the bill. “We have held six meetings of the committee since its inception and the government is committed to introduce the bill very soon,” Maryum Orangzeb, a key member of the committee told The News. She said detail review of the bill is underway as it is being compared with similar legislation around the world.
While asked why the committee is taking so much time in finalising the bill despite its passage by the Senate Standing Committee comprising all the political parties, she said: “We are taking time because we want to come up with a bill that is acceptable to all stakeholders.”
She added that Punjab and Khyber Pakhtunkhwa RTI laws and their implementations are also being considered while finalising the federal law. Maryum said opinion is being sought from legal experts to avoid duplicate legislation. She said the Minister for Information Parvez Rashid is keen to soon table the bill in the parliament.
When asked why the committee’s deliberations on this bill are kept so secret, she said soon the people will know everything. The delay has prompted strong criticism from the opposition lawmakers and civil society. They are also criticising the government for not making the proceedings of the parliamentary committee public.
“This very bill is about freedom of information but the proceedings of the government committee are shrouded in mystery,” said Zahid Abdullah a campaigner for RTI associated with Centre for Peace and Development Initiative (CPDI).
He said the process of legislation must be kept transparent. Zahid hailed the draft law as one of the best legislations on RTI in its current shape if measured by global standards. Opposition law makers are skeptical of the government’s commitment. The Chairman of the Senate Standing Committee on Information Kamil Ali Agha has included the matter in the agenda of the committee’s meeting to be held later this week.
A member of the Committee Farhatullah Babar said the opposition is skeptical because in past 17 times the government had promised to bring the draft to the cabinet meeting but they failed each time in fulfilling their promise.
“The minister for information had promised to the information committee of the Senate more than two years ago that the bill will be presented for cabinet approval to be tabled in Parliament. However, it seems the government is not interested and wants to buy time and then pass the bill at the fade end of current term so that the rulers do not have to abide by the RTI,” he told The News.
The RTI bill, drafted in 2014 for replacing a weak legislation, Freedom of Information Ordinance (FOI) 2002, has also been sent to the international RTI experts for review who declared it the best legislation in the world if adopted. The FOI Ordinance 2002, currently in practice, received 78th position in international ranking of 2013.
The court judgements that say public has a ‘right to know’ about everything done by public functionaries.It is largely believed that the constitutional right to information was accorded when Article 19-A was inserted into the constitution through 18th Amendment in 2010. The Article 19-A says: “Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.”
There is no denying the fact that Article 19-A specifically guarantees the right to information and this right is declared a fundamental right. However, there have been judgements by superior judiciary wherein citizens’ right to information has been upheld and protected even in pre-18th Amendment era. For example, in PLD 2008 Karachi 68], access to information has been declared as sine qua non of constitutional democracy. The judgement says that the public has a ‘right to know’ about everything done by public functionaries.
The judgement goes on to explain the reason as to why citizens should have right to information and we are told that the “responsibility of public functionaries to disclose their acts works both against corruption and oppression”. The judgement goes on to affirm principle of maximum disclosure by saying that “as a rule information should be disclosed and only as an exception privilege should be claimed on justifiable grounds.”
Again, in PLD 1993 SC 746), Supreme Court not only declared it a duty of the government to disseminate information but provide pertinent reasons as to why the government should disseminate information. The apex court considers access to information vital to enable citizens “to adjudge the conduct of those who are in office and the wisdom and follies of their policies”.
After the specific recognition of right to information through the insertion of Article 19-A through 18th Amendment, there have been at least two excellent judgements in which superior judiciary has deliberated upon right to information by juxtaposing different sections of Freedom of Information Ordinance 2002 with Article 19-A.
In a case, Justice Jawwad S. Khawaja made some pertinent observations on right to information with reference to the running of affairs of the country. He laments that “ever since the independence of the country in 1947, people in quest of the truth have mostly been left with conjectures, rumours and half-truths. Concealment of information has, in turn, led to a distorted history of the country and a destabilising division in the polity.” Highlighting the significance of Article 19-A, he says that it has “enabled every citizen to become independent of power centres which, heretofore, have been in control of information on matters of public importance.”
Commenting on the “intrinsic worth of information as a stand-alone fundamental right”, he says that the “very essence of a democratic dispensation is informed choice.” Elaborating on the value of informed choice in the context of democratic set-up, he says that it is through informed choices that people “acquire the ability to reward or punish their elected representatives or aspirants to elected office, when it is time for the people to exercise their choice.” This line of reasoning leads him to conclude that information on matters of public importance is “foundational bedrock of representative democracy and the accountability of chosen representatives of the people.”
Civil society groups have been demanding the repeal of Freedom of Information Ordinance 2002 because it is restrictive in nature and limited in scope apart from other various short-comings. Analysing Section 3 of the Freedom of Information Ordinance 2002, Justice Jawwad S. Khawaja seems to be on the same page with civil society. He brings to the fore its restrictive nature by juxtaposing with Article 19-A and concludes that “the Constitutional right is much broader and more assertive than the statutory right which by its own terms is restricted to disclosure of official record only.”
The Lahore High Court gave a landmark judgement with far reaching implications on January 18, 2016 in the case of Waheed Shahzad Butt versus The Federation of Pakistan. The judgement has put paid to the practise of filing representations with the President of Pakistan by public bodies against the decisions of Federal Ombudsman and Federal Tax Ombudsman, appellate bodies under Freedom of Information Ordinance 2002. The judgement says that the Tax Ombudsman passes a ‘decision’ on the complaint of an aggrieved person under the Freedom of Information Ordinance 2002 while Tax Ombudsman makes merely a ‘recommendation’ under the jurisdiction of the Federal Tax Ombudsman Ordinance.
The learned judge wrote: “A decision is a binding adjudication of rights and claims between two or more persons whereas recommendation denotes something in the nature of a suggestion. It is, therefore, held that the President had no jurisdiction to entertain and pass a decision on the representation filed by the Board against the decision of the Tax Ombudsman”. This judgement also highlights shortcomings in Freedom of Information Ordinance 2002. The learned judge observes that exclusions contained in section 8 of the FOI Ordinance are quite loosely worded, open-ended and in abstract form. There is no ‘criteria’ in Freedom of Information Ordinance 2002 on which the “application of a requester may be turned down”.
What is remarkable in this judgement is that public bodies will not be able to claim blanket exemption when information is requested under FOIO 2002. The judgement says that if a public body claims to exclude any information from disclosure, it will have to “justify/demonstrate that that stance is supported (with sufficient particulars and by demonstrable factual basis) by weighing of the relevant aspects of the public interest.”
It would be stating the obvious to say there exists dichotomy between judicial pronouncements on the significance of citizens’ right to information with regard to ensuring public accountability and greater public participation in the affairs of governance and the lacklustre performance of political parties in putting in place mechanisms by enacting right to information laws so that citizens could exercise their right to information.
On January 16, 2016, citizens were told that the PML-N government has constituted a special committee to review draft right to information bill unanimously approved by Senate Committee on Information and Broadcasting on July 15, 2014 in the light of ‘changing security situation’. The PML-N is half way through its tenure and it is high time it stops obfuscation on constitutionally guaranteed fundamental human right of the citizens and makes good on its various public pledges and documented commitment in Charter of Democracy to repeal Freedom of Information Ordinance 2002 by tabling right to information bill in the Parliament.
No matter who has been at the helm of affairs — be it military dictators or democratically elected politicians — secrecy has been the rule and the disclosure of information an exception throughout the history of Pakistan. The disconnect between state institutions and citizens has its roots in this secretive way of running the affairs of the country. This disconnect was a prerequisite for putting in place a coercive relationship between the colonists and the natives through different law, rules and regulations, as was the case in the colonial era. After all, colonists were here to subjugate and not to serve, extract resources rather than develop human capital.
However, even after Independence, successive governments conveniently benefited from the colonial legal and administrative regime that encourages and protects the secretive functioning of public bodies and dispensation of official business behind closed doors. Instead of changing the colonial era patron-client relationship between the rulers and the people, by changing the secrecy narrative, the ruling elite has further strengthened it as it helps to project them as saviours when they toss crumbs at the masses while continuing to be the principal beneficiaries of the system. The key pillars of the secrecy narrative in the country, such as national security, a threat to the safety of public officials, the privacy of elected representatives and the damage done to the country’s foreign relations by public officials, need to be seen in line with public interest. Furthermore, a transparency narrative that gives primacy to public good without compromising the safety and privacy of the individuals and the security needs of the state, needs to be strengthened.
Information commissions established under the Khyber-Pakhtunkhwa Right to Information Act of 2013 and the Punjab Transparency and Right to Information Act of 2013, can play a pivotal role in building this transparency narrative. We are in for a long haul but it is encouraging to note that a new transparency narrative countering the secrecy narrative within the bounds of the law of the land has already started emerging.
Now, public officials cannot raise the spectre of personal safety to deny access to information as was the case when access to the certified copy of the logbook of the District Coordination Officer (DCO) was requested under the Punjab Transparency and Right to Information Act of 2013. It was maintained in the hearing before the Punjab Information Commission, that the DCO performs his duty in a sensitive area and that there will be a threat to his safety; as the logbook contains information about the past movements of the DCO, which could be used to anticipate his future movements.
In an order dated October 3, 2014, the commission said: “This argument merits consideration, as the Respondent undeniably performs certain sensitive functions and it has been argued that his past movements might be used to predict his future travels. But the point is whether, in this instance, the potential or perceived risk to life or safety of a person touches the threshold where it could be justifiably used as a ground to restrict transparency and a fundamental right to information under Article 19A of the Constitution. The Commission is of the view that the mere mention, assumption or apprehension of possible harm to life or safety of a person is not enough to claim an exception u/s 13(e) of the Act””.
In a request filed under the RTI laws of the land, public officials have been building a secrecy narrative around the supposed invasion of privacy. In the case of Mr Amer Ejaz vs Secretary, Punjab Assembly, the Punjab Information Commission in its order on January 12, 2015: “settled the issue of the attendance record of the members of the provincial assembly as personal information.” The commission said: “The requested information is about the attendance record of elected representatives who perform a public function within their constitutional mandate and are accountable to citizens. They are also compensated in the form of salary, allowances and other perks or privileges for the work they undertake and the functions they perform; whereas the attendance record provides a basis for documenting performance, processing compensation and administering legislative business all of these relate to the official or public, not their personal domain”.
While the Punjab Information Commission is trying to change the secrecy narrative by building a transparency narrative, the PML-N government has reinforced the age old-adage that the more things change, the more they remain the same.
On January 16, 2016, it was reported in the national media that the federal government has formed a special committee to review the draft Right to Information Bill approved by the Senate Committee on Information and Broadcasting on July 15, 2014 in the light of the ‘changing security situation’. The formation of this special committee is especially baffling given the fact that there are already adequate and strong safeguards in the bill to protect sensitive information. For example, Section 2 (vii) defines ‘national security’ and sections 18, 19 and 22 have been specifically inserted to protect the disclosure of sensitive information pertaining to international relations, the enforcement of law and national security, respectively. Furthermore, another safeguard against the disclosure of sensitive information is the proposed Pakistan Information Commission to be established under Section 29 and comprising three information commissioners drawn from the superior judiciary, lawyers’ fraternity and civil society. This commission will decide whether the disclosure of certain information will be harmful to national security or the disclosure will serve public interest. Lastly, even if the federal government is not satisfied with the decision of the Pakistan Information Commission, it would be able to file a writ petition with the superior judiciary to adjudicate on the findings of the commission.
It is extremely unfortunate that a democratically-elected government has chosen to strengthen the secrecy narrative at the expense of the transparency narrative, by raising the bogey of the ‘changing security situation’. In this context, we must keep in mind what Benjamin Franklin said: “Those who surrender freedom for security will not have, nor do they deserve, either one.”
Published in The Express Tribune, February 27th, 2016.
ISLAMABAD: Civil society activists on Wednesday alleged that the federal cabinet lacked the political will to approve the right to information (RTI) bill, which was a main hurdle to its legislation.
They were speaking at a conference titled: ‘Pakistan’s RTI Legislation Regime: Learning from Provincial Legislative Experiences’. The conference was organised by Centre for Peace and Development Initiatives (CPDI), a non-governmental organization, at a local hotel.
Promulgation of the Right to Information Act 2005 in India encouraged the rights activists here to start their struggle for a similar law in Pakistan. Khyber Pakhtunkhwa (KP) assembly took the lead by passing the KP RTI Act 2013, followed by the Punjab government which introduced the Punjab Transparency and RTI Act 2013.
Since then the civil society has been making efforts to have right to information law at national level but the cabinet is sitting on the bill, though it has been on its agenda for the last 15 months.
Bill has been on cabinet’s agenda for the last 15 years
Head of Centre of Civic Education Mr Zafarullah Khan said the bill should be passed as soon as possible but unfortunately it was not on the priorities of the government. “Although legislation is a time consuming process, but civil society should keep pushing the politicians to pass the bill,” he said.
Aftab Alam, head of a non-governmental organisation Irada, said he was not sure if the RTI bill would ever become the law of the land and the struggle of the civil society would ever become fruitful.
“Even if RTI bill is passed, the Cybercrime Bill will make the RTI Law dysfunctional. Government officials will stop giving any information and journalists will not be able to file any story,” he said.
Executive Director CPDI Amer Ejaz said that opposition’s private member bills were usually never passed.
“It is the reason that the bill came on the agenda of the cabinet meeting but was not taken up. Moreover, I can surely say that Cybercrime Bill is drafted by a person who has never used internet,” he said.
Program Manager Transparency and Right to Information at CPDI Zahid Abdullah while talking to Dawn alleged that the cabinet lacked the will to approve the bill which had been lying with it for the last over one year.
“Minister for Information Senator Pervaiz Rasheed always says the bill will be approved in next meeting but the bill cannot draw the attention of the cabinet,” he said.
While replying to a question, Mr Abdullah said that the number of agenda items in the cabinet meeting did not matter. The thing which counts is the political will which the cabinet lacked, he said.
Published in Dawn, October 8th, 2015
ISLAMABAD: Punjab has scored the highest marks in terms of effective RTI legislation when measured against the global best practices while Khyber-Pakhtunkhwa has slid down in the ranking due to the negative amendments enacted recently in addition to other problems in the law.