LAW: HOW CAN THE RTI LAWS BE FIXED?

In 2010, the insertion of Article 19A in the Constitution, through the 18th Amendment, was a significant development for promoting transparency, accountability and for considering access to information as a constitutional right in Pakistan.

Article 19A guarantees the right to information (RTI) and enables citizens to access information held by public bodies, subject to reasonable restrictions imposed by law. This provision was a positive step towards enhancing transparency and empowering citizens to hold the government accountable.

Pakistan is the first country in South Asia to have adopted a Freedom of Information (FOI) law, introduced as an ordinance by a military ruler in 2002. However, it soon became evident that the legislation was made on the condition of the Asian Development Bank (ADB), and not out of public interest. It was considered ineffective legislation that failed to promote transparency in government work and establish accountability to the Pakistani people; it lacked basic principles of transparency and accountability.

The year 2013 was a progressive year in terms of the RTI movement in Pakistan. Khyber Pakhtunkhwa and Punjab enacted effective right to information laws, enabling citizens to exercise their constitutional right of access to information held by public bodies. Sindh followed suit, by enacting the Sindh Transparency and Right to Information Act, 2016, on March 13, 2017.

Loopholes in Pakistan’s Right To Information laws often make it difficult for citizens to exercise their rights to obtain information. Authorities must address these gaps to ensure transparency in governance

The federation also repealed the weak FOI 2002 ordinance and introduced The Right of Access to Information Act, 2017. Similarly, Balochistan repealed its ineffective law and introduced the Balochistan Right to Information Act, 2021, in February 2021.

Despite these five laws being in place since 2013, however, public officials continue to try to legalise secrecy by adopting vague arguments and misinterpreting some provisions in these laws.

For example, the Registrar Office of the Supreme Court (SC) of Pakistan, the Election Commission of Pakistan (ECP), and various other constitutional institutions resist disclosing information under the federal RTI Act 2017, arguing that the Act does not apply to bodies established by, or under, the Constitution.

This ambiguity needs to be addressed, by providing a more inclusive and clearer definition of “public body” in the Act. It is worth mentioning that Section 2(e)(iv) of the Indian Right to Information Act 2005 explicitly covers bodies established by or under the Indian Constitution.

The Pakistan Information Commission (PIC) clarified in a judgment to the Registrar Office SC that Section 2(ix)(e) states that “Any court, tribunal, commission, or board under the Federal law” falls under the purview of the Act. Interestingly, despite this clarification, the Registrar Office filed a writ petition before the Islamabad High Court (IHC), and the IHC allowed the petition and dismissed the order of the PIC.

Section 2(ix) may be amended to explicitly declare bodies established by or under the Constitution as public bodies under the Act, and to include the offices and secretariats of the president and the prime minister in the definition of “public body.”

This gap — and other loopholes in the federal Act — have led to 73 orders of the Pakistan Information Commission being challenged in the high courts. In a case involving the Senate of Pakistan, instead of implementing the PIC’s order or challenging it in the Islamabad High Court, as required under the Act, the Senate secretariat sent a letter to the Commission stating that the Chairman of the Senate is authorised to declare any or all records of the Senate secretariat as classified.

The information requested from the Senate secretariat pertained to the total number of sanctioned and vacant posts, the quota for the disabled, etc, which the Commission declared to be public information under the Right of Access to Information Act 2017.

Another flaw that needs to be addressed is Section 6 — “Declaration of the public record” — which does not require the provision of a list of records that will be accessible to citizens. Good RTI laws, including the Indian RTI Act 2005, provide a negative list and declare all other records as public records, which are accessible to citizens. Moreover, Section 7(f) of the Act gives powers to the minister-in-charge to classify certain records, which is vague and evasive and should be removed.

Khyber Pakhtunkhwa

In the case of the Khyber Pakhtunkhwa RTI Act 2013, it covers the subordinate judiciary in the definition of public body but leaves out the Peshawar High Court. Higher courts should also be held accountable. Section 2(I)(v) may be amended to explicitly include the Peshawar High Court within the purview of the Act.

Section 26 of the KP act explains the powers of the KP Information Commission. The commission itself should be vested with the powers to initiate contempt proceedings, to ensure the implementation of its orders, as in the case of the PIC. Then, Section 28(1)(e) describes the use of information obtained for malicious purposes as an offence with ulterior motives and frivolous design. However, a good RTI law should not focus solely on the possible misuse of information; instead, it should aim at facilitating maximum disclosure of information. There are other laws in place that deal with the misuse of information. Therefore, Section 28(1)(e) serves no purpose other than discouraging citizens from using this law and should be deleted.

Punjab

Although the Punjab RTI law is a good piece of legislation, it still needs a few improvements. For example, in Section 2(iv), “any court” implicitly includes Lahore High Court as a public body, but this could be made more explicit to avoid confusion. While section 5(2) states that the government shall appoint “not more than 3 commissioners”, appointing just one commissioner may not suffice for the effective implementation of the Act and to ensure citizens’ right to access information.

Furthermore, Section 5(2) does not require the government to appoint one commissioner from each of the three categories, ie judiciary, civil society and bureaucracy. This ambiguity can be addressed

through amendments that make it binding on the government to appoint commissioners from each of the three categories.

In March 2021, a retrogressive amendment was introduced to Section 5(6) of the Punjab Act, in which the provincial government was empowered to extend the tenure of the commissioners for a further three years. This amendment needs to be withdrawn, as the expectation of extension may influence decisions/ orders of commissioners.

Additionally, the Punjab Information Commission lacks the power to initiate contempt proceedings to enforce its orders, unlike the Pakistan Information Commission. To rectify this, a sub-section should be added to Section 6(5), allowing the Punjab Commission to initiate contempt of court proceedings and impose penalties on any officials who fail to comply with its orders.

SINDH

In the case of the Sindh Transparency and Right to Information Act 2016, there are various typographical mistakes that need to be fixed. However, Section 2(i)(iv) may be substituted by “(iv) any Court, Tribunal, Office, Board, Commission, Council, or any other body established by or under the Constitution or a provincial law.”

Section 12(5) limits the choice of the Chief Information Commissioner of the Sindh Information Commission to retired senior government servants, which is not fair and reasonable. It should be possible to select the Chief Information Commissioner from any sector (civil society, retired government officers and legal experts), and the only consideration should be the relevant expertise of the person being considered.

Furthermore, Section 12(8) of the Sindh Transparency and Right to Information Act 2016, states that a member of the commission will not be able to hold office if the member reaches the age of 65 years. This can be a problematic restriction, as certain members may reach the age of superannuation without completing a full term of three years. In fact, this was an issue in KP as well, where the first Chief Information Commissioner of the KP Information Commission had to relinquish office before his term expired, at the age of 65 years.

BALOCHISTAN

In the case of the Balochistan RTI Act 2021, the law still suffers from multiple flaws, which need to be fixed in the light of regional and international best practices and the requirements of Article 19A of the Constitution.

For example, Section 2(n)(iv) explicitly does not cover the superior judiciary, which is not fair, as higher courts too use public funds and must be accountable. Then, Section 7(2) requires submitting a copy of the Computerised National Identity Card (CNIC) while submitting an information request — which is burdensome for a common citizen. Furthermore, Section 7(5) requires the applicant to state a reason for requesting information, which is against local, regional and international best practices.

There is no such requirement in the laws of Punjab, Sindh and KP or at the federal level. This requirement has no useful purpose but, instead, may become an excuse on the part of ill-intentioned officers to question the given reasons, delay disclosure and harass applicants.

The requirements of providing a CNIC and stating the reason for obtaining information were the major stumbling blocks in the FOI Ordinance 2002 and the repealed Balochistan Freedom of Information Act 2005. That was the reason, citizens, civil society and journalists demanded effective legislation.

The implementation of these laws faces significant challenges, evident in the failure to establish the Balochistan Information Commission within the stipulated 120-day timeframe and the prolonged non-functionality of the KP Information Commission due to vacant positions of information commissioners.

Additionally, the Sindh Information Commission lacks a functional website, while the complaint redressal mechanisms of all four commissions exhibit inadequate responsiveness and fail to adhere to the prescribed timeframes outlined in their respective laws.

It is imperative that public bodies prioritise proactive disclosure of information through their websites, relieving the burden on public information officers (PIOs) and streamlining the processing of information requests. Relevant authorities must address these critical challenges to ensure the effective implementation of these laws and overcome the obstacles that hinder access to information.

In order to truly establish an effective right to information regime in Pakistan, prompt action is required to rectify the identified flaws and gaps in existing legislation. Meanwhile, parliamentary oversight should be enforced effectively.

By improving implementation mechanisms and enforcing these laws, Pakistan can cultivate a transparent, accountable and participatory governance system, hopefully fostering a brighter and more inclusive future for the nation.

The writer is a right to information activist and an alumnus of the International Academy for Leadership, IAF, in Germany. X: @TheRazaAliS

Published in Dawn, EOS, September 17th, 2023

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