Right to information is not the State’s priority

Editor’s Note: Moosvi’s article traces the origins of how and why Pakistani authorities “do not feel it is their responsibility to provide information”. He argues that the “long military rule” is why the concepts of accountability, democratic state governance, and people’s participation never took root. The article explains why, from 1986 to 2013, state institutions do not honor the “right to information” as a right. In 1986, political parties failed to legislate a law. In the mid-1990s and 2002, ordinances were passed, but they exclude key Ministries from the obligation to provide information. The judiciary, too, under Chief Justice Iftikhar Chaudry, was opposed to disclosing the “names of judges holding dual nationality”. In fact, the judiciary argued that “the law does not apply to them”. Only in 2013, wherein an NGO succeeded in obtaining “records of attendance by members of the National Assembly”, did the “right to information” prevail. It was, however, an exemption to the norm.

by Moosvi Abdul Rahim, writer and religious scholar

Pakistan was created as a result of a democratic movement. However, due to the long military rule, the concept of a democratic state failed to develop. The cohesive mechanism for accountability of State institutions has not evolved. The concept of people’s participation in governance and State affairs never took root. As a result, the welfare of the people is not among the basic priorities of the State.

The absence of the right to information exacerbated dictatorial regimes. Presumably, through this right, all three pillars of the State could be held accountable. Without access to information, the media is unable to perform its duty: provide information to the masses. To fulfil its obligation a law was needed, backed by constitutional guarantee. But the process has been in the doldrums for a long time.

Under the 1956 and 1973 Constitutions, Article 19 guarantees protection of the rights to freedom of speech and expression for journalists. But, for practical implementation of this right, it is also necessary to have a legislation on the right to information.

In 1986, Professor Khursheed Ahmed, the leader of Jamat-e Islami, presented a draft bill on the right to information in the Senate, but unfortunately it was never discussed. This is despite the promise of the Muslim League and the People’s Party in their manifestos, to legislate a bill on the right to information. None of the political parties fulfilled their promise.

After the overthrow of Ms Benazir Bhutto’s government, the caretaker Prime Minister Malik Mairaj Khalid promulgated an ordinance on the right to information. This was a toothless law because many important ministries were kept out of its ambit. The head of the Muslim League, Mr. Nawaz Sharif, promised during his election campaign that the ordinance will be made stronger and will be presented in the National Assembly to give it the validity of an act of Parliament. But the promise never materialized. The ordinance expired after its due date, and vanished from the record of the Assembly.

In 2002, during the regime of former military ruler General Pervaiz Musharraf, a federal law on the right to information was promulgated. It was a better version than the 1987 Ordinance. But, practically speaking, it proved to be impotent too; like its earlier versions, the important Ministries, such as Foreign Affairs, Defence, Interior Affairs, and Water and Power, were exempted from scrutiny by this law. They are not obliged to provide information. Any request for information would not be entertained within 21 days, making the information irrelevant, particularly for journalists in the print and electronic media.

For a common man to seek information, there are no rules provided as such. Also, there is no mention of which officer of the concerned ministry is obligated to provide information. As we know, in a Federal Ministry, there are hundreds of offices spread throughout Pakistan. These officers do not feel that it is their responsibility to provide information. Because of this problem, to seek information from concerned ministries in Islamabad becomes a very complicated process. To ask concerned officers, and for them to respond to inquiries from the pubic, could take ages.

Under the law, the Federal Ministries have not made their officials aware of their responsibilities. Thus, the officers take the advantage of being ignorant of the law, by not responding to the query. If the concerned Ministry rejects the application to access information, then one has to appeal in the Federal Ombudsman. This is the only institution with mandate to receive complaints. Each day, thousands of complaints are filed, but they remain pending. Prompt action on complaints are never taken. The Federal Ombudsman also cannot take action against an officer who refuses to provide information. As a result, the officers take advantage, by not entertaining request for information.

Even if the Federal Ombudsman decides on any application, the concerned ministry could appeal to the President of Pakistan. The President is the head of the Federal Ministers and Federal Ombudsman. However, this means another tedious process starts, as the bureaucracy in the President’s House seeks information from the ministry in question. These ministries either take a long time, or deliberately delay the submission of their replies. Because of this undue delay, the intent of the law, which requires prompt release of information requested, is defeated. So a majority of ministries have taken the easy way out to any challenge in their refusal to release public records.

In 2013, a non-government organization, Pakistan Institute of Legislative Development and Transparency (PILDAT) submitted an application in the Secretariat of the National Assembly, requesting for the record of attendance by members of the National Assembly. Upon instructions from the Speaker of the National Assembly, the Secretariat denied the request. The Secretariat, in its reply, argued that the disclosure of the information pertaining to the members would adversely affect their prerogative as Parliamentarians.

PILDAT subsequently filed an application against the Order to the Federal Ombudsman. The Ombudsman ruled agaist the National Assembly and ordered that the records be made public. The Speaker of the National Assembly challenged the Order before President Mamnoon Hussain. However, the President decided in support of the Ombudsman. The President agreed that the attendance of National Assembly members is a public record, and should be released to the public. This is an example of the right to information enforced. This case, however, is an exception to the norm. It is the only example wherein the right to access to information has been respected.

Under the tenure of Supreme Court Chief Justice Iftikhar Muhammud Chaudry, information was sought on the list of the names of those judges holding dual nationality. The Registrar of the Supreme Court, however, refused to disclose this information, arguing that the law on the right to information does not apply to the  Supreme Court.

Given this situation, it is crucial that the law on right to information be strengthened, and that it be made more effective to ensure the right of the citizen to access public records. The amendment should include, amongst other things, the creation of an Independent Complaint Commission. The chairperson of this Commission should be a retired judge of the high court. He or she should be appointed by the Chief Justice.

Preferably, the members of the Commission should be nominated and should have activist backgrounds, coming from the Human Rights Commission, the Pakistan Bar Council, the Higher Education Commission, and women’s rights organisations. They should have a term limit of three to five years. The Commission should have power to punish government officials who refuse to provide information without valid reason. The proceeding on an application should be completed within three to seven days, to expedite the matter. If these amendments are enforced, it will be possible to make the federal law on the right to information more effective, and in line with international standards.