This statement was originally published on article19.org on 13 November 2015.
The 1973 Constitution only specifically recognised freedom of speech and expression. The Supreme Court ruled in the 1993 Nawaz Sharif case that the right to receive information can be “spelt out from the freedom of expression” provision of the Constitution. In 2007, the Constitutional Court held that “access to information is sine qua non of constitutional democracy. The public has the right to know everything that is done by the public functionaries.” In 2010, there was a significant amendment to the Constitution to include an explicit right to information under Article 19-A, guaranteeing that “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.”
Right to Information Act
In October 2002, President Musharraf promulgated the Freedom of Information Ordinance 2002 (FOI Ordinance), largely at the initiative of the Asian Development Bank. Although the Ordinance should have lapsed within four months, it became permanent following the 17th Amendment to the Constitution which gave protection to all orders/ordinances laws adopted by General Musharraf.
In July 2012, the senate mandated a committee to elaborate a comprehensive access to information law and a very strong draft of a new RTI bill was developed. It drew inspiration from the very progressive Punjab and Khyber-Pakhtunkhwa provinces' RTI laws and among other features establishes a strong information commission. If the bill is adopted as is, it would be one of the strongest RTI laws in the world.
Provisions of the RTI legislation
The purpose of the Pakistani FOI Ordinance is to make the federal government more accountable to its citizens by ensuring access to public records. While the Ordinance does not require the requesters to state the purpose for requesting the information, the Freedom of Information Rules 2004 include an application form that requires the requesters to state the purpose and sign a special declaration guaranteeing that they will use the information only for the stated purposes. Only exemptions found in the Ordinance are permissible grounds for restricting the right to information.
The FOI Ordinance allows any citizen of Pakistan access to official records held by a public body of the federal government. The Ordinance only applies to the federal government including ministries, departments, boards, councils, courts and tribunals and the secretariat of parliament. It does not cover provincial or local government or any private bodies funded by the government or providing public services. There is some ambiguity about what information is accessible. The Ordinance allows access to “official records,” where a record is defined as a record in any form that is used for official purposes of the body that holds it. The Ordinance also defines what public records are and which records cannot be considered as public records, such as notings on files; minutes of meetings; preparatory opinions and recommendations, individuals' bank account records; defence forces and national security; classified information; personal privacy; documents given in confidence; and other records decreed by the government.
Only acts and subordinate legislation such as rules and regulations, notifications, by-laws, manuals, orders having the force of law in Pakistan shall be proactively published and made available at a reasonable price.
DISCLOSURE UPON REQUEST
The Freedom of Information Rules 2004 prescribe a specific form of request and requires applicant to give reasons why and for what purposes they need the information sought. The form includes a high amount of personal details (including the photocopy of an official document) and requires the applicant to describe the requested document.
Every authority is required to designate a freedom of information officer. In case the officer is not designated, the head of the body shall take on the duties of the officer. The Ordinance provide for an explicit duty to assist any requester. There are no explicit procedures in place if the body does not possess the documents; in such a case the request is denied. The authority may also refuse access straight away if the request is not submitted in the prescribed form and does not include all necessary information.
The authority is required to respond within 21 days and no extensions are possible. Under the Rules, the applicant is required to pay an initial fee of 50 rupees for 10 or less pages. An amount of five rupees per page of photocopy shall be paid for every additional page. There are no fee waivers.
Aside from the exclusions described above, the Ordinance also prescribes exemptions, which include international relations, law enforcement, privacy and personal information and economic and commercial affairs. Exemptions are subject to a harm test on a case-by-case basis to information whose disclosure is sought, but there is no public interest override. Reverse public interest test is included, such as that the government can broadly refuse to disclose any other record from the purview of this Ordinance in the public interest.
The Ordinance does not foresee a severability provision. The requesters are to be informed in writing of the reasons for refusal.
Complaints against delay or denial of information may be first filed to the head of the concerned public authority (internal appeal) and then to the Wafaqi Mohtasib (Ombudsman) or if the complaint is against the Federal Board of Revenue, to the Federal Tax Ombudsman. The Ombudsman has the power to make binding orders, such as issuing summons, demanding documents etc., but its decisions are not binding. The Federal Ombudsman may be compared with the Supreme Court in regard to administrative, financial, and functional autonomy and performance, but is less financially independent. After the Wafaqi Mohtasib has issued its recommendation, a person may complain to the president of Pakistan. The Ombudsman's decision does not affect the right to seek other legal remedies, including judicial recourse.
Officials who destroy records with the intention of preventing disclosure can be fined and imprisoned for up to two years. The Mohtasib can fine individuals for making “frivolous, vexatious or malicious” complaints. The Ombudsmen can uphold the complaint and order disclosure or reject the complaint.
REPORTING, MONITORING AND PROMOTIONAL MEASURES
There are no provision on reporting and monitoring mechanisms. The Rules however require all government departments and ministries to publish annual reports and make them accessible to, among others, members of the public.
Implementation of the RTI legislation
The RTI regime in Pakistan is considered to be below international standards. High hopes are therefore bestowed upon the proposed new Federal Freedom of Information Act.
Media groups and NGOs report that the current Ordinance has not been fully implemented and access is still difficult; the Ordinance has been described as ineffective and a toothless piece of legislation. Many information officers are still not aware of their roles and responsibilities under the Ordinance as there has not been a systematic training programme for implementation. A majority of surveyed public authorities admitted they were not even aware of the RTI legislation. An exception to this situation is the province of Punjab, where at least some of the surveyed heads of authorities were aware of the legislation and some (albeit a minority) information officers received training on the Ordinance.
Reportedly, no public funds were allocated for the implementation of the Ordinance and there is a lack of resources and capacity for proper implementation. Research revealed that most authorities do not have proper mechanisms in place to respond to RTI requests. Poor record management is one of the major impediments to the effective exercise of the right to information and the authorities lack resources to digitalise documents.
A survey showed that citizens are rarely given information or are given only very ordinary information or information already in the public domain; only 2 out of 46 information requests in the period of 2013-2014 resulted in a response. Noncompliance with time limits is also a common occurrence. A survey of websites showed that information is published proactively despite the provision on affirmative disclosure of rules and regulations.
The average number of requests to all federal authorities is between one and five a month. The average number of requests per year is around 100.350 The Federal Ombudsman received 164 applications between 2003 and 2011. The compliance with the Ombudsman's instructions to provide the information is varied. Another problem is the accessibility of the Ombudsman's office in Islamabad for the general public and the lack of administrative and financial capacities for fulfilling its obligations.
The Ordinance is supplemented by the Local Government Ordinance providing for proactive disclosure by state governments. All four provinces have their RTI laws: Balochistan Freedom of Information Act 2005 and Sindh Freedom of Information Act 2006 are regarded as largely ineffective, while the law in Punjab from 2013 has been widely praised. Notably, it established an information commission with strong enforcement powers. The law in KhyberPakhtunkhwa was also considered to be progressive but was amended by the Assembly in 2015 to exempt the Assembly from coverage, and reduced the status of the information commission.
STATE SECRETS ACT
Pakistan has retained the colonial Official Secrets Act (OSA), based on the original UK OSA 1923, which sets broad restrictions on the disclosure of classified information. The Cabinet Division has a declassification Committee which reconsiders the classifications. Apart from the OSA, a wide range of secrecy laws reflect the lack of a culture of openness in Pakistan. These statutes include the Security of Pakistan Act 1952, the Maintenance of Public Order Act 1960, the Defence of Pakistan Rules and the Penal Code. The Law of Evidence of 1984 stipulates that no government official can be compelled to give information 'when he considers that the public interest would suffer by disclosure'. While Section 3 of the FOI Ordinance recognises the supremacy over other laws with regard to exemptions, Section 23 of the Ordinance states that it does not derogate other laws.
There is currently no whistleblower protection law in Pakistan at the federal level and the FOI Ordinance does not provide for protection of people disclosing information in the public interest. The Khyber Pakhtunkhwa province is the most progressive in this regard as the provincial Right to Information Act offers protection to whistleblowers and a new comprehensive whistleblower protection bill is being discussed.
ENVIRONMENTAL PROTECTION LEGISLATION
The 1997 Environment Protection Act requires the environmental agency to provide “information and guidance to the public on environmental matters” and establishes procedures for public consultation and participation in environment impact assessment. Information can not be disclosed during the public hearings if it relates to trade and commercial secrets of the investor but the agency may order the disclosure if it considers that the public interest outweighs the possible prejudice to the investor. Information relating to the international relations, national security or maintenance of law and order is not subject to this override provision and cannot be disclosed unless the Federal government explicitly consents to the disclosure. The Environmental Democracy Index gave Pakistan a fair score in its 2015 assessment, finding that the law is inadequate on proactive publication of information.
Pakistan has signed and ratified the ICCPR, but with a number of reservations, including one on Article 19. However, as a result of international pressure, Pakistan withdrew the reservations. Pakistan has also signed and ratified the UNCAC.
Pakistan has not joined the Open Government Partnership, but it is eligible to join. It is also a member of the ADB/OECD Anti-Corruption Initiative for Asia-Pacific and OECD Busan Partnership for Effective Development Co-operation.
The UNDP funded the customisation of the Development Assistance Database platform for Pakistan, thus Pakistan established an Aid Information Management Systems (AIMS) and is listed by the aidinfo.org.
Pakistan was suspended twice from membership of the Commonwealth, following decisions of the Commonwealth Ministerial Action Group on the Harare Declaration (CMAG). The Harare Commonwealth Declaration recognises the individual's inalienable right to participate by means of free and democratic political processes and the CMAG is a mechanism that deals with serious or persistent violations of the Declaration. The first suspension was in 1999 after the military overthrow of the democratically elected government (the suspension was lifted in 2004) and the second in 2007 for failure of President General Musharraf to meet a deadline for lifting emergency rule (suspension lifted in 2008).
Country report: The right to information in Pakistan
This statement was originally published on article19.org on 13 November 2015.