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.
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