DunyaNews: Pakistan: Thursday, September 28, 2017.
On August 22, the Senate of Pakistan passed the
Right of Access to Information (RAI) Bill 2017. Members of the Senate
congratulated each other on this epic moment as citizens of Pakistan are being
granted their due right to information, as enshrined in the constitution of
Pakistan. Since then, some discussion has been generated both in the mainstream
media and social media about the merits of this bill. The state-owned PTV also
allocated some time to discuss the merits of this bill and declared it as a
very progressive step in line with the provincial Right to Information (RTI)
legislation.
Many people know that right to information was
granted in 2002 when, during the Musharraf regime, the Freedom of Information
(FOI) Ordinance 2002 was introduced at the federal level. Later, Balochistan
and Sindh legislated similar laws to be effective on provincial departments.
Since 2002, civil society in Pakistan has been critical about the restrictive
nature of these laws. The usage of these laws has proved time and again that
their scope was limited and very little information could be obtained through
them.
The FOI Ordinance 2002 and the subsequent
legislation in Balochistan and Sindh are termed first generation laws because
of their weaknesses and restrictive nature. The Right to Information
legislation done in Khyber Pakhtunkhwa and Punjab in 2013 and in Sindh in 2017,
referred as the second generation laws, was a giant leap forward. There are
some qualitative differences between the first generation and second generation
laws:
- The second generation laws have a narrowly drawn list of exemptions; beyond which every information is public information in essence and citizens have the right to seek this information.
- The second generation laws have a strong pro-active disclosure clause whereby the public body is duty bound to bring maximum information in public domain on its own and without any formal information requests made by citizens,
- The second generation laws have a powerful and independent appellate body, called Information Commission, to whom complaint can be lodged if the information is denied to citizens.
- A penalty clause was also introduced in second generation laws. The public official who willfully deny information to a citizen can be penalised by the commission if it is satisfied that information was denied without any reasonable ground.
The newly introduced RAI Bill has the last three
of the above-mentioned characteristics. It has a relatively strong and well
laid down clause for pro-active disclosure. Although the FOI Ordinance 2002
also had a proactive disclosure clause, it is better explained in the RAI Bill
2017. The new bill also guarantees a powerful and independent appellate body,
the Pakistan Information Commission. This again is a step forward when compared
with the FOI Ordinance 2002!
In the FOI Ordinance 2002, the office of federal
ombudsman is the appellate body and it is supposed to decide a complaint within
six months. In comparison, the Information Commission in the proposed
legislation is required to decide the appeal within 60 days. Similarly, the FOI
Ordinance 2002 does not have any penalty clause. If information is denied to
citizens, all a federal ombudsman can do is to direct the public body to
provide the information. It does not have a sting of penalty that can be
imposed in case of willful denial of information to citizens. The proposed law
does contain the penalty clause whereby a maximum fine of 100 days salary can
be imposed on a public official if information is willfully denied to citizens
or disclosure of information is delayed.
These aspects put the RAI Bill 2017 in the list of
second generation laws, but the free flow of information is controlled through
the introduction of Section 6 in the bill. This section is copied from the FOI
Ordinance 2002 where it appears as Section 7. It explains what kind of
information will be treated as public record and will be available to citizens.
The list is narrow and only includes: (a) policies and guidelines; (b)
transactions involving acquisition and disposal of properties; (c) information regarding
grant of licenses, allotment and other benefits; and (d) final orders and
decisions.
The RAI Bill’s scope has been further reduced by
the introduction of Section 7 (Section 6 of the FOI Ordinance 2002) that states
noting on files and minutes of the meeting are not included in the definition
of public record; hence not available to citizens. Going one step ahead, the
proposed law gives the minister an authority to declare any information as
classified; a power which should rest with the information commission instead.
One can argue that most of the information should
be part of the pro-active disclosure clause and should be available in public
domain. The citizens and civil society organisations who have been using the
FOI Ordinance 2002 to seek information from public departments can understand
the restrictive nature of its Section 7. This section, in effect, not only
stops the flow of information but also legalises concealment of information.
For example, invoking Section 6 of the RAI Bill 2017, we cannot ask for the
attendance list of MNAs and senators, copy of the logbook of official transport
or the steps taken by the environment agency against the manufacturers and
traders of polythene bags.
Had this law not been in place, there was a
possibility that citizens might have received the information from a public
body after making the request. But the FOI Ordinance 2002 and the RAI Bill 2017
legally define public record and put most of the information outside the
purview of citizens. The RAI Bill 2017 appears to be progressive in nature when
we see the information commission, penalty regime and proactive disclosure
clause, but you only need to know simple mathematics to understand it. When you
multiply any number with zero, the answer is always zero, no matter how big
this number is. Section 6 of the RAI Bill 2017 is zero of the bill and multiply
it with any powerful information commission, or strict penalty regime, the
answer will always be zero.
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