Muhammad Maroof Mittha
The federal government has relinquished its authority over the subjects on the concurrent list and the same have been transferred to provinces. Now all the provinces are obligated to provide for the laws ensuring enforcement of the right to information that has also been made part of the fundamental rights after the 18th Amendment. The provincial governments of Khyber Pakhtunkhawa, Sindh and Balochistan have already implemented the laws in this aspect and the Punjab government has publicized the Draft Punjab Freedom of Information Act, 2013, through newspaper advertisements and web portal for comments and feedback.
The laws promulgated have profound implications on the relationship between the state and society. They are aimed at covering rights and procedures that can be exercised by citizens at their will on the societal front, and it is expected to provide for provisions that ensure its internalization by public bodies and public institutions on the other front. While going through the draft bill, various legal anomalies and disabling provisions have been observed, which can result in the denial of the right to information as guaranteed by the constitution. These anomalies and disabling provisions include infinite timelines, undefined terms, vague list of exceptions and absence of certain provisions that must have been part of this draft.
The structure provided for exercising right to information is comprised of the public information officer (PIO) and Information Commission. The PIO is a person who will be designated within the public body to provide any information requested by an applicant. The PIO has been granted the power to refuse information on the grounds of exemption. If the PIO delays or refuses to provide the information, the applicant may approach the Information Commission with a complaint or may seek internal review from head of the public body. The procedure has been made unduly lengthy and timeframe allowed by the draft law to provide the requested information is unreasonably long. This timeline should be rationalized and 20 extendable days at the discretion of PIO, and likewise 30 days at the commission’s discretion should not be considerably reduced.
The 2002 Freedom of Information Ordinance empowered the office of federal ombudsman to adjudicate the complaints. Cognizance of complaints by an Information Commission instead of an ombudsman is a step in the right direction as the ombudsman would render his findings on the complaints, but he was not sufficiently authorized to enforce his orders. The proposed Information Commission has been equipped with sufficient powers to enforce its orders. Even otherwise, the composition of the Information Commission gives the impression of an independent commission that is not merely functioning as an authority to adjudicate complaints and determine public interest, but is also tasked with facilitating and advising the provincial government to ensure enforcement of the right to information. The commission has the powers to facilitate training of PIOs to implement the right to information that is extremely important as the people working for government organization have a deeply ingrained habit of hiding all kinds of information.
The proposed law has not prescribed any deadline for formation of the Information Commission, suggesting that the government will be at liberty to create it at its own convenience which may delay the effective implementation of the law. Furthermore, in the 2013 budget no money has been allocated for implementation of the law. So, the province will have to wait till 2014 to translate it into an effective tool of ensuring transparency. This delay would impede the access to information as envisioned by the constitution.
Under the access to information laws worldwide, there are usually certain subjects on which the information may not be provided keeping in view the public interest. In India the list is clear and definite to minimize the room for refusal of information. In this draft law the list is vague, broad and exhaustive, thus the exemptions mentioned in the law can extended in every possible situation to refuse any information requested. The law has not clearly defined generic terms used in exceptions like ‘public order’, ‘national defense and security’, ‘international relations’, ‘legally privileged information’, ‘legitimate commercial interests’, ‘ability to manage economy’ etc. This uncertainty will lead to abuse and denial of right to information as commanded by the constitution itself.
In the province of Punjab the information is generally refused citing instant harm to public at large and it is declassified after a certain period of time making it available for public scrutiny and accountability. Since the law is not there and the authority to maintain and dispose of record, including the information refused lies with the public body the draft law itself must define a time period for declassifying the information that has been refused or held by the public body on the basis of exceptions provided.
One of the tools to monitor and ensure enforceability of the law is deterrence in the form of punitive actions including fine and imprisonment. The proposed law has not provided for the definite punishments for offences that are distinguishable and it has even rounded destruction of record and obstruction in providing information in generalized terms. The law must define the offences and provide for clear and definite punitive actions for effective enforceability otherwise, the uncertain enforceability mechanism may defy spirit of the law.
Protecting whistleblowers is a relatively old notion in jurisprudence, and it provides for safeguards preventing retaliatory action against persons who unearths misconduct, irregularities and illegalities undertaken by public officials. The post-colonial Pakistan inherited secrecy and silence as tools of governance among numerous others. The bureaucracy is still in the habit of concealing its actions under the 1923 Officials Secrets Act, confidentiality and information labeled as privileged. Therefore, institutional misconduct cannot be accounted for until anyone from the institution risks his/her position to disclose any information relating to irregularity. And if no protection against the retaliatory actions of public body is granted to whistleblowers, it will discourage disclosure of information which may be extremely important for public good. Interestingly, the KPK government has given this legal protection to whistleblowers in the law.
After restructuring the federation, the local government has been added as third tier of governance and provincial governments are bound to devolve political, financial and administrative powers. All the information relating to local governments must be accessible to the public as these governments are the most significant tool in democratic dispensation. The law promulgated by the Punjab government contains explicit provisions in relation to enforcement of right to information. The law has laid down the timeframe of 15 days in which the requested information is to be provided and rest of the procedure is to be prescribed by the rules. The right to information coupled with local government system will empower and connect ordinary person to national politics.
The right to information is a tool of ensuring accountability and transparency in government affairs. Since its creation, the state has continued to follow the policy of ruling people as ‘subjects’ through the tools of secrecy and silence. This secretive approach has alienated the common man from the national polity and affairs of the state. The provincial government has to take effective measures to provide for access to information as early as possible. The flaws of the draft laws must be removed. The law should provide definite, clear and comprehensive mechanism for access to information, or it will adversely affect the spirit of right to information as guaranteed by the constitution.
Muhammad Maroof Mittha is human rights activist and an advocate at Lahore High Court