Ruling Underscores Need for RTI Bill in Pakistan

27 January 2012

By Ikramul Hag and Huzaima Bukhari

The writers are lawyers and visiting professors at the Lahore University of Management Sciences. This article first appeared Jan 17 in The News, and is reprinted by permission of the authors.

“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.”  — Article 19A of the Constitution of the Islamic Republic of Pakistan

In his eloquent note to the detailed judgement in Constitutional Petitions 77 to 85/89 of 2011 (commonly called Memogate scandal) released on Jan 12, Justice Jawwad S Khawaja noted that “most petitioners and respondents, and their learned counsels seem to have ignored or glossed over the significance of this major constitutional change.” The learned judge aptly pointed out, “It is an unfortunate facet of our history that during the 64 years since Pakistan’s independence in 1947, the people of Pakistan have been, at times, disserved by a non-inclusive governance paradigm where information critical to them has been withheld from them.”

At critical times in history, the judge observed, “the 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 to a destabilising division in the polity.” The legislature, by inserting Article 19A through the 18th Constitutional Amendment, has “empowered the citizens of Pakistan by making access to information a justiciable right of the people rather than being largesse bestowed by the state at its whims.” Article 19A, according to the judge, has “enabled every citizen to become independent of power centres which, heretofore, have been in control of information on matters of public importance.”

Enforceable Right

In this judgement, it has been emphasised that people’s right to know the truth about what their government and its functionaries are up to, has now become a fully justiciable and enforceable fundamental, inalienable right, enumerated in Chapter II of the Constitution.

Section 3 of the Freedom of Information Ordinance, 2002, says: “Notwithstanding anything contained in any other law for the time being in force, and subject to the provisions of this ordinance, no requester shall be denied access to any official record other than exemptions as provided in Section 15.” This statutory right, confined to official record, is narrow in scope. On the contrary, the constitutional right is wide in its scope and gives right to access to information in all matters of public importance. Obviously, the learned counsel from the side of respondents failed to appreciate the true import and scope of Article 19A, and it has rightly been highlighted in the judgement that ‘…the principle of law is that the fundamental right under Article 19A is a grant of the Constitution and, therefore, cannot be altered or abridged by a law enacted by Parliament.’”

The legislature, after reading the apex court’s judgement elaborating the scope of Article 19A, may feel proud that for the first time it has bestowed on the citizens an unbridled right of access to information. So long as Article 19A is part of the supreme law of the land, nobody, including the apex court, can deny to the citizens their guaranteed fundamental right. There should not be any attempt, as Justice Jawwad S Khawaja emphasised in his note, to limit or trivialise the scope of such right “through an elitist construction whereby information remains the preserve of those who exercise state power.”

Comprehensive Law Needed

The principle laid down by the Supreme Court, having binding force under Article 189 of the Constitution, makes it imperative for parliament to pass a comprehensive “right to information” law.

The exercise of the constitutional right to access to information in all matters of public importance is necessary for transparency, accountability and good governance – essential elements of democratic dispensation. At the heart of this constitutional provision is ensuring accountability of all. Logically, the right to information starts from those who judge and adjudge others.

The starting point of implementation of the Article 19A should be making public the declaration of assets, liabilities and taxes by judges and high-ranking civil and military officials. The civil society and the media should come forward to force parliament to abolish all laws relating to secrecy and/or immunity and enact a comprehensive right to information legislation in the light of the above judgement of the Supreme Court for compulsory disclosure of assets, liabilities and taxes paid by judges, generals and high ranking government officials – at present, such information cannot be obtained under Freedom of Information Ordinance, 2002, whereas the assets of politicians (though laughable) are notified in the Gazette of Pakistan.

Need for Asset Disclosure

The issue of asset disclosure by judges in India was highlighted when a Right to Information Application (RTI) was filed in the Supreme Court by Mr Subhash Agarwal. After much debate and legal battles, the government introduced a bill in parliament providing for disclosure of judges’ asset, but with a protection clause that the assets would not be accessible to people and that the judges would not be made liable for any action on the basis of their disclosure. This led to a commotion in parliament. MPs, rising above party affiliations, collectively condemned this clause, forcing the government to withdraw the bill.

In the wake of the debate in parliament and public campaign, a number of High Court judges made their assets public, dissociating themselves from the stand of the chief justice of India that disclosure of asset would lead to harassment of judges by disgruntled litigants. Eminent former judges and leading jurists joined the civil society – they openly demanded public declaration of assets by judges. The entire civil society and media, unanimously and vocally, opposed the stance of chief justice. Succumbing to opposition-from inside and outside-the chief justice ultimately yielded, announcing that asset declarations of the judges would be placed on an official website. Soon thereafter, 21 judges of the Supreme Court, including Chief Justice K G Balakrishnan, declared their assets, giving details of movable and immovable property owned by them and their spouses.

After championing the cause of people’s right to information in the above judgement, it is a legitimate expectation of the citizens that as a first step, the honourable judges of the Supreme Court and High Courts, like their contemporaries in India, will make public their assets and tax declarations.

Citizen’s right to information has assumed renewed importance in the wake of the Supreme Court’s judgement on Article 19A.

Judicious and meaningful exercise of this right can make the legislature, the judiciary, the executive and media accountable to the public at large. Right to information in all matters of public importance, access to official record and free availability of what is owned by privileged classes must be assured as it will help improve governance, transparency and rule of law.

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