Even PTI, PML-N not serious on Information Rights Bill

ISLAMABAD: Rhetoric aside, the PML-N and PTI are awkwardly alike in denying the public the right to information as their provincial governments in Punjab and Khyber Pakhtunkhwa (KP) have framed Right to Information (RTI) laws that will change nothing on ground.
While the provincial governments have taken some small steps, the federal government has done nothing visible to public eye although Information Ministry claims to have drafted an RTI law that is being tightly guarded like Abbottabad Commission report.
Background discussions with the stakeholders and the officials engaged in the exercise indicate that work on Punjab’s draft law has been halted over the differences on appellant body.
Out of the five-member body assigned to finalise the draft, majority voted for setting up a powerful information commission comprising at least three members to take up complaints against the departments reluctant to provide information to citizens within the duration of 21-day period. The proposal was vetoed by two members of the committee who said the provincial
ombudsman should be assigned the task of appellant body, an experiment that has already failed at provincial and federal level. Also the fact remains that RTI laws in India, considered the best in the world, have their success grounded in the establishment of an independent information commission that is exclusively assigned to deal with the complaints and proceed against the departments not showing compliance.
Interestingly the two members of the Punjab’s committee vetoed the setting up of information commission and insisted on the role of ombudsman included the provincial ombudsman himself, a case of glaring conflict of interest. Now the issue has been referred to chief minister Punjab to resolve who has passed it on for discussion in the cabinet meeting, a development being interpreted as a delaying tactic on the part of the government that is said to be keen in keeping the role of ombudsman.
The situation in KP is not different either. The provincial cabinet recently approved the draft of RTI law, however the contents of draft have been greeted with skepticism by the activists. Contrary to the deadlock in Punjab on the appellant body, the KP law has envisaged the role of information commission but that will be a one-man forum meaning thereby it would not be different from what the ombudsman would be doing in Punjab.
Centre for Peace and Development Initiatives (CPDI) that has been working on RTI law closely examined the KP’s RTI draft and offered clause-wise comments. About the information commission, CPDI said it should be a three-member body including a former judge of superior court, a bureaucrat with 15-year experience and one RTI activist. In order to make the commission a potent body, the CPDI suggest, it should have suo moto powers to initiate inquiry about any of the violations of the concerned laws. Contrary to role determined in the KP’s draft law reducing it to mere initiate an inquiry, CPDI, said the commission, should also be empowered to make decisions and issue appropriate directions.
As KP’d draft RTI law has excluded provincial assembly and the courts from being questioned, CPDI has urged the provincial government to include them among the departments as they are run by public money hence be called into question like in other democracies. It also demands bringing autonomous and semi-autonomous bodies in the ambit authorising public to secure information from them. RTI laws in India and Bangladesh cover courts. Even in Pakistan, the Federal Freedom of Information Ordinance 2002, Sindh Freedom of Information Act 2006, and Balochistan Freedom of Information Act 2005 are applicable to courts.
As the KP’s draft law dealing with information exempted from seeking has loosely defined the categories leaving it to the discretion of the concerned departments to interpret law in their favour to hinder information, CPDI has demanded clearly and tightly phrased list of exempt information in order to minimise the possibility of any ambiguity.
The CPDI has also questioned the exemption of official documents ‘legally considered as state, official, business or other secrets that are accessible only to a specific group of persons.’ This exemption, the CPDI noted, is neither justifiable nor needed in the presence of other exemptions under section 4 of the draft law. “If retained in its present form, it would render the whole law ineffective,” CPDI said.
The CPDI has also questioned the exemption of documents for internal working maintained in files, any intermediary opinion or recommendation, Cabinet papers including records of the deliberation. There is no justification, the CPDI said, whatsoever to keep such information exempt, especially after a decision or a determination has been made. As it is, this exemption is not reasonable in view of regional and international best practice. In many countries around the world, including India, all such information including proposals, cabinet requested information may relate to, and include a legal person registered or incorporated in Pakistan.

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ISLAMABAD: As the Senate Committee’s draft bill on the Right to Information (RTI) Act 2013 has come under sharp criticism, RTI activists have declared it in contravention of the Constitution.

There is a long negative list (borrowing an analogy from Pak-India trade) and a small positive list of the information one can apply for. The draft law does not contain any definition of information and more energy has been spent in spelling out categories of information a citizen cannot access through a petition as six sections of the bill deal with the ‘negative list’.

Zahid Abdullah, Coordinator Coalition on Right to Information (CRTI), has urged the Senate sub-committee on information and broadcasting (author of this draft) to adopt the Freedom of Information Law 2013 of the Punjab after getting input from the civil society.

Punjab’s law was drafted by the caretaker government headed by chief minister Najam Sethi. Being a seasoned journalist, Sethi was determined to pass the draft into law through an ordinance; it was later decided to be left for the newly elected government to do.

Chief minister Shahbaz Sharif had promised while talking to The News said that the information law will be the first bill to be pushed through the Punjab Assembly.

All eyes are set on him to see whether or not he translates his commitment into reality. The draft law is toothless and offers no hope of breaking the tight wall of secrecy by introducing radical clauses.

The draft law, according to CRTI, is in contravention of the spirit of Article 19-A of the Constitution. It is ironic that the draft law on right to information does not contain a clear definition of information, Zahid Abdullah said. The focus of the draft law is on enlisting categories of information that will not be provided to the citizens and six sections have been devoted for this purpose, he explained.

There should have been only one section enlisting information exempted from disclosure and the rest of the information should have been declared public as is the practice in effective laws around the world including India and Bangladesh, a statement issued by CRTI said.

Instead of establishing an independent information commission, the Federal Ombudsman has been entrusted with the task of playing the role of appellate body. If we want to ensure the free flow of information from public bodies to the citizens, the establishment of independent and autonomous information commission is a prerequisite as is the case in many countries including India and Bangladesh, CRTI argued.

Taking decisions on contentious matters pertaining to the right to information is a specialised job, which should only be entrusted to an independent and autonomous information commission.

Further, the role of the appellant body pertaining to the right to information is not just to decide disputes regarding access to information, which often involves vested interests and powerful mafias, and requires certain skills and competencies.

Its functions also include ensuring the proactive disclosure of information, issuing guidelines in this regard to the government and presenting an annual ‘state of right to information’ in the country to the legislative body, said CRTI statement.

The argument that the establishment of a new entity will incur extra expenditures does not really hold water. The benefits of an accountable and transparent government resulting from the efforts of a powerful information commission will far outweigh the costs of establishing such an institution, CRTI explains.

The caretaker Punjab government drafted a much better law in the shape of Punjab Freedom of Information Ordinance 2013, which is under the consideration of the Punjab government, than the one proposed by the Senate sub-committee. CPDI urges the federal government to adopt the draft Punjab Freedom of Information Ordinance 2013 after input from civil society organisations and media.

CPDI Comments on Khyber Pakhtunkhwa Access to Information Act 2013

It is very encouraging that the Government of Khyber Pakhtunkhwa has prepared draft law on right to information. Our comments on the draft are presented in the Table below. Our comments are based on the following:

  • International standards regarding right to information legislation, which include (a) maximum disclosure; (b) minimal exception, (c) obligation for proactive disclosure; (d) process to facilitate access; (e) minimal costs; (f) disclosure should take precedence; (g) open meetings; and (h) duty to assist.
  •  CPDI’s own experience (and the insights thus gained) of using the existing Freedom of Information Ordinance 2002; as well as of submitting and perusing information requests submitted to various government departments at the Federal, provincial and district levels.
  •  Regional legislation (e.g. Indian Right to Information Act 2005 and the Bangladesh’s Right to Information Act 2009) and the experience of the implementation of these laws.This draft needs to be improved to make it consistent with Article 19-A of the Constitution as well as with the regional and international standards. A good right to information act can make a significant difference in terms of empowering citizens, improving governance, strengthening democracy, instituting public accountability and bring about transparency in government functioning. The comments presented below are not exhaustive, as these have been prepared in-house in a short duration. CPDI may be presenting additional ideas and suggestions later, if need be. The following table contains CPDI comments on specific sections of Khyber Pakhtunkhwa Access to Information Act 2013.

CPDI Comments on specific sections of Khyber Pakhtunkhwa Access to Information Act 2013.

Provisions of Khyber Pakhtunkhwa Access to Information Act 2013CPDI Comments
Section 2 DefinitionsDefinition of public body in Section 2 (i) needs to be expanded. Its scope may be expanded to include all kinds of for-profit and not-for-profit non-governmental organizations that are working in Pakistan.
Section 2(j): Information should also include the categories of information like agreement, feasibility report, inquiry reports, budget, official expenses, and records of payments, records of procurements, quotations, tenders, bills, expense claims, vouchers, reimbursement records and work sheets.
Section 7,8,14,15,16,17,18Like Freedom of Information Ordinance 2002, (FOI 2002), it contains three lists of records, a, discloseables records (Section 7, undiscloseables (Section 8) and list of exempted information (Section 14,15,16,17,18). A good right to information law has only one narrowly and clearly drawn list of exempted information and the rest of the information is declared public information. In a democratic country, people have all the right to know how government uses the powers and resources at its disposal, which should only be used in the larger public interest. Section 8 excludes from disclosure noting on the files or minutes of meetings or summaries and intermediary opinions. Any exclusion of documents and information relating to internal working will negate peoples’ right in this regard and, hence, will undermine their ability to oversee and make suggestions for increasing efficiency or improving performance. This is clearly an unreasonable restriction and is, therefore, in contravention of Article 19-A of the Constitution.

People have the right to know about the considerations, factors or arguments taken (or not taken) into account in the process of making a particular decision or passing an order. Hence, without having full access to information about noting on the files or minutes of meetings or summaries and intermediary opinions, it would not be possible for people at large and direct stakeholders in particular to give timely input and present additional information or perspectives, which might lead to improved decision making. It is, therefore, very important that, barring minimal exceptions, all information must be accessible for public comments and feedback.
Section 20 Applet BodyKhyber Pakhtunkhwa Access to Information Act 2013 also envisages Ombudsman as an appellant body. Punjab Freedom of Information Act 2012 approved by the Punjab Cabinet envisaged the establishment of five member Punjab Information Commission, an independent and autonomous body. This is the practice in most of the countries of the world. In our own region, India and Bangladesh have also established independent and autonomous information commission. Our experience of submitting information requests to government departments shows that Federal Ombudsman is a toothless appellant body in terms of making effective intervention and helping citizens have access to information when it such a request to public bodies is unlawfully denied. One, Freedom of Information Ordinance 2002 does not empower Federal Ombudsman to impose penalty on public officials for wrongfully denying access to information. Two, the experience also shows that Federal Ombudsman deals complaints with the narrow prism of maladministration and not denial of fundamental right of citizen which it is entrusted to protect. Three, even in cases where Federal Ombudsman instructed to provide information, public bodies generally opted to file representation to the President of Pakistan instead of providing us the requested information. Therefore, it is recommended that Ombudsman as an applet body should be done away with in the proposed KPK law and independent and autonomous information commission on the lines of draft Punjab Freedom of Information Act be established.

Section 13Reasonable time limit for public bodies to respond to information requests is considered to be 21 days. Seven days suggested in Section 13 is not sufficient time for public officials to collect and share information.

“Right to Information” is a notable Casualty in PMLN Manifesto

Centre for Peace and Development Initiatives (CPDI) has criticized the Pakistan Muslim League (Nawaz) for ignoring effective legislation on Right to Information in the election manifesto. An analysis of the manifesto also revealed that it was drafted in haste and without any scientific research in the background.

Right to Information was conceded to the citizens in 2010 through 18th amendment to the constitution of Islamic Republic of Pakistan. Since then no meaningful attempt has been made by PMLN to pursue federal government for enactment of law. The Punjab, where PMLN was in power for last five years, such attempts were piecemeal, un-coordinated and were not made whole-heartedly and hence remained shy of any effective legislation. Even before the 18th amendment, the leadership of PMLN and PPP committed in Charter of Democracy (COD) to bring a legislation on Right to Information but that commitment was put in background after the 2008 elections. Despite repeated commitment of the PMLN leadership in different conferences and seminar, no meaningful and decisive steps were taken in this regard.

The other promises made in the manifesto are more a rhetoric than a reality. A lot of commitments have been made but their financial implications have not been calculated. The manifesto talks about the reduction of tax evasion but does not elaborate how the trend would be arrested with present rusted tax machinery of Pakistan. The increase in tax-to-GDP ratio from 9% to 15% would remain a forlorn hope with existing tax machinery and without adopting strict policy of tax collection. In countries with tax-to-GDP ratio as high as 15%, the vast majority of parliamentarians do not evade taxes as happens in Pakistan. A first step should have been the commitment from the party not to give tickets to any candidate who has a history o tax evasion. A more vivid party stance on broadening the tax base and taxing the agriculture sector should have been the part of the manifesto. This would give an opportunity to the voter to exercise its informed choice during the forthcoming election.

It was also suggested to reduce inflation by reducing the tax rate. While CPDI is not against the reduction of tax rates, the reduction without broadening the tax base will further decrease the tax revenue and economy would end up nowhere.

The manifesto also talks about reduction of current expenditure other than salaries and allowances. Such reductionwill have a direct effect on the operational budget of the government departments. While CPDI is by no means in favor of wasteful expenditure, at the same time question should be asked that whether we are in a position tofurther reduce the operational budget. Thenon-availability of sufficient operational budget has already turned our schools and hospitals into ruins and we cannot afford further de-generation of these facilities. One-third reduction in current budget, as committed in the manifesto, is not realistic.

One ludicrous commitment was local government election within six months of general elections. One wonder what hurdle to local government elections would be surpassed in six months that otherwise could not be overcome when party was in power in the Punjab. There should be someone in the party to explain that why PMLN failed to hold local government elections in the province?

Manifesto also highlights production of 10,000 MW of electricity but no reasons for the failure to produce a single MW in the Punjab was mentioned as provinces were allowed to mobilize their own resources to generate power.

The leadership of PMLN is requested to respond to these questions in greater details. People will continue to ask these questions from them during the election campaign.