The News on Sunday: PK: Sunday, February 26, 2017.
Over the last few years, Pakistan has become more accepting of citizen’s right to information, and provinces have come up with their respective laws. But, as sharing of otherwise restricted information is a new phenomenon, the government departments are finding it hard to share it. Perhaps, the very idea of losing control over the official record/information is making them uncomfortable.
Take the example of the ongoing disagreement between the Anti-Corruption Establishment (ACE), Punjab and the Punjab Information Commission (PIC) over sharing of details of an inquiry against an individual employed with the education department. ACE Punjab has refused to share details of the inquiry other than the final order with the applicant and cited Rule 10 (6) of the Punjab Anti-Corruption Establishment Rules, 2014, in support of its decision, saying it allows them to share the final report only and nothing else. Besides, the Establishment has also quoted a Lahore High Court (LHC) order dated January 18, 2017 in which it has allowed ACE Punjab not to share information protected under the establishment’s rules.
The PIC, on the other hand, contends that there is no specific description of information under the Punjab Transparency and Right to Information law, and exceptions can only be those mentioned under its Section 13. The restrictions imposed under any other law are acceptable only if these are in conformity with this section, it adds.
The commission’s representative argues that if the government departments are allowed to refuse information on the basis of their own laws, everyone will include such provisions, making the RTI law ineffective and compromising the very spirit of having this piece of information.
Muhkhtar Ahmad Ali, Information Commissioner, Punjab tells TNS that they had asked ACE Punjab to provide all the requested information, duly certified, to the applicant as it does not fall under Section 13 of RTI law.
Explaining the section, he says, a Public Information Officer (PIO) may refuse an application where disclosure of the required information can cause harm to national defence or security, public order or international relations of Pakistan; a legitimate privacy interest, unless the person concerned has consented to disclosure of information; the protection of legally privileged information or of the rules relating to breach of confidence; the life, health or safety of any person; the prevention or detection of crime, the apprehension or prosecution of offenders, or the administration of justice and so on. “In this particular case none such risks are involved,” he adds. Under the RTI law, the government departments and bodies are required to appoint PIOs who shall handle the information requests by citizens.
Abid Saqi, a member of the Pakistan Bar Council and ex-president Lahore High Court Bar Association (LHCBA), challenges the concept of secrecy and keeping citizens uninformed about affairs of the state. He believes Article 19A, being part of the Constitution of Pakistan, is supreme and all other subordinate legislation is secondary and cannot over-ride it.
The Article reads: “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.”
Therefore, he says, all the departmental laws that deny public access to information, without any genuine reason, are in contradiction with the principles of democracy and a person’s basic right to be informed.
There is a debate on Section 13 of RTI law as well that talks about exceptions. Mukhtar Ahmad Ali explains that even where this section is applicable, only the part, paragraph or sentence that is relevant will not be disclosed while all other information will have to be shared.
The overall stance of the government representatives also needs to be explored. It has to be seen why there is a general propensity to deny information requests. Abid Bhatti, Public Relations Officer (PRO) at ACE, says, “the issue at hand is quite contentious and there isn’t much clarity on it”.
Bhatti tells TNS that every other day a department or government body faces such challenging situations where someone or the other asks for information that they think they shall not give. For example, he says, “in cases of inquiries against the accused, there are statements verbal or written, witnesses’ accounts, confidential information and so on, disclosure of which they think can affect the working of the department and the quality of the inquiry. So, the departments mostly agree on sharing the final findings/reports and withhold notings on files, details of proceedings etc.”
Asad Jamal, a lawyer with expertise in information laws, believes the PIC position is agreeable both technically/legally and in principle. His contention is that Rule 10(6) of the ACE Rules 2014 only says, “Copies of final report of the cases dropped shall not be supplied to any one without the prior permission in writing of the Director and the Director General. It does not say that copy of the various documents of the case will not be provided at all.”
Jamal says the point is that the RTI Act 2013 supersedes other laws as section 24 clearly prescribes that the Act precedes over other laws/provisions of other laws. “Though an exception mentioned in the exception clause of RTI Act i.e. Section 13, overrides exceptions contained in other laws including the Anti-Corruption Act, any exception or limitation in any other law may not extend the scope of section 13.”
He says “the question is: whether a government department can arbitrarily deny access to information? Or use limitations clause in a manner so as to deny the fundamental constitutional right to information? There can be no blanket power with any department or office which curtails constitutional rights. The limitations on constitutional freedom of information must be used sparingly and only where the harm caused by disclosure of information outweighs public interest.”
Regarding the existence of an LHC decision in support of ACE Punjab in another case, Ali says that in the commission’s view, the said order applies only to the case in relation to which it is passed, as it doesn’t set broad principles for across the board application and thus can’t be relied upon to deny access to information sought under the Act. This, he says, “has been mentioned in their order”.
The ACE DG and Chief Secretary Punjab have been advised to amend provisions in laws and rules that are inconsistent with Article 19A of the Constitution and provisions of the RTI law.
Abid Bhatti explains though PIOs are supposed to respond to information queries, they do not take a decision on their own and refrain from passing on the information that they think is sensitive. “Even in the superior courts, there is a procedure under which information about a case can be sought. So, why is it expected that the government departments shall furnish whatever information a person calls for just like that.”
“However, if someone approaches the PIC with complaint against them and gets an order in this regard, the department may comply,” he concludes.