Right to information and superior judiciary
It is largely believed that the constitutional right to information was accorded when Article 19-A was inserted into the constitution through 18th Amendment in 2010. The Article 19-A says: “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.”
There is no denying the fact that Article 19-A specifically guarantees the right to information and this right is declared a fundamental right. However, there have been judgements by superior judiciary wherein citizens’ right to information has been upheld and protected even in pre-18th Amendment era. For example, in PLD 2008 Karachi 68], access to information has been declared as sine qua non of constitutional democracy. The judgement says that the public has a ‘right to know’ about everything done by public functionaries.
The judgement goes on to explain the reason as to why citizens should have right to information and we are told that the “responsibility of public functionaries to disclose their acts works both against corruption and oppression”. The judgement goes on to affirm principle of maximum disclosure by saying that “as a rule information should be disclosed and only as an exception privilege should be claimed on justifiable grounds.”
Again, in PLD 1993 SC 746), Supreme Court not only declared it a duty of the government to disseminate information but provide pertinent reasons as to why the government should disseminate information. The apex court considers access to information vital to enable citizens “to adjudge the conduct of those who are in office and the wisdom and follies of their policies”.
After the specific recognition of right to information through the insertion of Article 19-A through 18th Amendment, there have been at least two excellent judgements in which superior judiciary has deliberated upon right to information by juxtaposing different sections of Freedom of Information Ordinance 2002 with Article 19-A.
In a case, Justice Jawwad S. Khawaja made some pertinent observations on right to information with reference to the running of affairs of the country. He laments that “ever since the independence of the country in 1947, people in quest of the truth have mostly been left with conjectures, rumours and half-truths. Concealment of information has, in turn, led to a distorted history of the country and a destabilising division in the polity.” Highlighting the significance of Article 19-A, he says that it has “enabled every citizen to become independent of power centres which, heretofore, have been in control of information on matters of public importance.”
Commenting on the “intrinsic worth of information as a stand-alone fundamental right”, he says that the “very essence of a democratic dispensation is informed choice.” Elaborating on the value of informed choice in the context of democratic set-up, he says that it is through informed choices that people “acquire the ability to reward or punish their elected representatives or aspirants to elected office, when it is time for the people to exercise their choice.” This line of reasoning leads him to conclude that information on matters of public importance is “foundational bedrock of representative democracy and the accountability of chosen representatives of the people.”
Civil society groups have been demanding the repeal of Freedom of Information Ordinance 2002 because it is restrictive in nature and limited in scope apart from other various short-comings. Analysing Section 3 of the Freedom of Information Ordinance 2002, Justice Jawwad S. Khawaja seems to be on the same page with civil society. He brings to the fore its restrictive nature by juxtaposing with Article 19-A and concludes that “the Constitutional right is much broader and more assertive than the statutory right which by its own terms is restricted to disclosure of official record only.”
The Lahore High Court gave a landmark judgement with far reaching implications on January 18, 2016 in the case of Waheed Shahzad Butt versus The Federation of Pakistan. The judgement has put paid to the practise of filing representations with the President of Pakistan by public bodies against the decisions of Federal Ombudsman and Federal Tax Ombudsman, appellate bodies under Freedom of Information Ordinance 2002. The judgement says that the Tax Ombudsman passes a ‘decision’ on the complaint of an aggrieved person under the Freedom of Information Ordinance 2002 while Tax Ombudsman makes merely a ‘recommendation’ under the jurisdiction of the Federal Tax Ombudsman Ordinance.
The learned judge wrote: “A decision is a binding adjudication of rights and claims between two or more persons whereas recommendation denotes something in the nature of a suggestion. It is, therefore, held that the President had no jurisdiction to entertain and pass a decision on the representation filed by the Board against the decision of the Tax Ombudsman”. This judgement also highlights shortcomings in Freedom of Information Ordinance 2002. The learned judge observes that exclusions contained in section 8 of the FOI Ordinance are quite loosely worded, open-ended and in abstract form. There is no ‘criteria’ in Freedom of Information Ordinance 2002 on which the “application of a requester may be turned down”.
What is remarkable in this judgement is that public bodies will not be able to claim blanket exemption when information is requested under FOIO 2002. The judgement says that if a public body claims to exclude any information from disclosure, it will have to “justify/demonstrate that that stance is supported (with sufficient particulars and by demonstrable factual basis) by weighing of the relevant aspects of the public interest.”
It would be stating the obvious to say there exists dichotomy between judicial pronouncements on the significance of citizens’ right to information with regard to ensuring public accountability and greater public participation in the affairs of governance and the lacklustre performance of political parties in putting in place mechanisms by enacting right to information laws so that citizens could exercise their right to information.
On January 16, 2016, citizens were told that the PML-N government has constituted a special committee to review draft right to information bill unanimously approved by Senate Committee on Information and Broadcasting on July 15, 2014 in the light of ‘changing security situation’. The PML-N is half way through its tenure and it is high time it stops obfuscation on constitutionally guaranteed fundamental human right of the citizens and makes good on its various public pledges and documented commitment in Charter of Democracy to repeal Freedom of Information Ordinance 2002 by tabling right to information bill in the Parliament.