Shamim Shahid
Good governance requires a fair legal framework that is enforced impartially. It also requires full protection of human rights, in particular those of minorities. The impartial enforcement of law requires an independent judiciary and an impartial and honest police force. Transparency in the making and implementation of policies is essential for good governance. And good governance is not just about government. It is also about political parties, parliament, the judiciary, the media and civil society. It is about how citizens, leaders and public institutions relate to each other in order to make the change happen.
In fact, the good governance means the process of decisions-making and the process by which decisions are implemented or not implemented. The civilized world in recent past made hectic efforts for ensuring good governance with making maximum emphasis on transparency in all spheres of life. Transparency means that decisions are made and implemented in a manner that follows rules and regulations. It also means that information is freely available and directly accessible to those who will be affected by such decisions and their enforcement. It also means that enough information is provided and that it is provided in easily understandable form.
In connection with its charter, the U.N. General Assembly in 1946 recognized that the freedom of information is a fundamental human right and the touchstone for all freedoms to which the U.N. is consecrated. And in 1948, the U.N. through Article 19 of the Universal Declaration of Human Rights defines the right to access information in these words: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” The 1966 International Covenant on Civil and Political Rights also recognizes the right to access information.
In Pakistan, the right of access to information was made part of the 1973 constitution through its Article 19: “Every citizen shall have the right of freedom of speech and expression, and there shall be freedom of the press, subject to any restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defense of Pakistan or any part thereof, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, commission or incitement to an offense.” Though through this article, Pakistan has listed itself in UN’s those members, which had ratified its Article 19 regarding right to information, but it also imposed certain restrictions and the constitution of Pakistan does not expressly give a right of access to information. However, the Supreme Court of Pakistan ruled in 1993 that Article 19 includes a right of citizens to receive information.
Many countries explicitly recognize this fundamental right in their constitutions or in specific legislation. Pakistan was the first country in South Asia to make a law on freedom of information, promulgated it through a presidential order in 1997. The ordinance, however, lapsed and was neither re-promulgated nor placed before the subsequent elected parliament for legislation. Similarly, the 2002 Freedom of Information Ordinance was enacted along with the devolution plan by a military dictator. This law was also enacted through a presidential ordinance, but covered with controversial 17th Amendment which was repealed through the 18th Amendment in April 2010. In the light of the 18th Amendment, the right of access to information was made obligatory and the provinces were given a free hand for going ahead with further legislations in this respect.
Soon after the passage of the 18th Amendment, the provinces were given a free hand to go for further legislations with a view to ensuring due democratic and human rights to the people. In this respect, some of the legislation made but most of the work left. The Khyber Pakhtunkhwa government on August 13, 2013, formally announced promulgation of the 2013 Khyber Pakhtunkhwa Right to Information Ordinance. And the ordinance was formally made public by Imran Khan at a ceremony on August 18, 2013. This step of the PTI government in Khyber Pakhtunkhwa deserves an appreciation and it became an example to other provinces and the federation.
The Right to Information Ordinance was promulgated with to ensure the flow of information to common people through the media. All aspects of good governance are facilitated by a strong and independent media. Only when journalists are free to monitor, investigate and criticize the government policies and actions can good governance take root. The media has a critical role in promoting the rule of law and transparency, through investigative journalism, promoting the openness of court, legislative and administrative proceedings, the access to officials and official documents.
And the main purpose of the Right to Information Ordinance is to ensure good governance, transparency and make the government organizations accountable. The first 14 Articles of the ordinance is pertained to its purposes and procedures, enabling the media people or other individuals for getting required information from the public body. It also describes the functions and responsibilities of the public bodies and commission to be dealing with requests for information.
Under Article 7 of the ordinance, request for information: 1) Subject to the provisions of this ordinance, every citizen may lodge a request for information with the public body through the designated officer; 2) a request for information shall be made in writing and lodged in any manner in which the public body has the facilities to receive it, including in persons, by mail, by fax or by e-mail; 3) any written request for information which identifies the information or record sought in sufficient detail to enable the public body to locate it, and which include an address for delivery of the information or record, shall be treated as a request for information; 4) Subject to sub-section (3) a public body may provide an optional form for making request for information, with a view to assisting requesters to make request; 5) in no case shall a requester be required to provide reasons for his request and (6) whereas a request for information is received by a public body , the requester shall be provided with a receipt acknowledging the request, including the date and name of the official responsible for processing it. Through this clause, the procedure was explained for getting information from a public body. And the government for such a purpose would establish a commission and that commission will be responsible for dealing of the applications.
On the one hand, the government is enabling the media organizations or individuals for getting the required information, but on the other certain restrictions have also been imposed to deprive the media or individuals of such rights. Article 19 of the constitutions, pertained to freedom of speech and expression is conditional on 1) glory of Islam, 2) integrity, security or defense of Pakistan, 3) friendly relations with foreign countries 4) public order, 5) decency or morality, 6) in relation to contempt of court and 7) commission or incitement to an offense.
And now all these restrictions have been made part of the new Right to Information Ordinance through its Sections 15 to 21. All these seven articles have defined the restrictions described in Article 19 of the constitution, restricting media and individuals of its just right of information and expression. But unlike the past, this time the Khyber Pakhtunkhwa government has made some relaxations, enabling journalists or other individuals to get the relevant information from the public bodies. For example, Article 14 of the ordinance states: “A public body shall not be required to disclose information which falls within the scope of the exceptions provided for in Sections 15 to 21 of this ordinance, that: a) exceptions in other laws (secrecy provisions) may not extend the scope of the exceptions in this ordinance, although they may elaborate on an exception that is provided for in this ordinance, b) the fact that information has been classified is irrelevant to the question of whether or not it falls within the scope of the exceptions provided for in this ordinance, which must always be accessed directly, at the time of a request, based on clear and objective considerations; c) where only part of a record or the information falls within the scope of the exceptions provided for in this ordinance, that part shall be severed and the rest of the record or information shall be provided to the requester; d) even where information falls within the scope of an exception provided for in this ordinance, the information shall still be provided to the requester where on balance , the overall public interest favours disclosure of the information; e) for the purpose of clause (d) there shall be a strong presumption in favour of the disclosure of information that exposes corruption, criminal, wrongdoing, other serious breaches of the law, human rights abuse, or serious harm to public safety or the environment; and f) the exceptions set out in Sections 15 to 18 of this ordinance, shall cease to apply after a period of twenty years, provided that this may be extended, in exceptional cases, for up to a maximum of another fifteen years, with the approval of information commission.
Beside these restriction as described in Article 15 to 21, 12, other laws and regulations already exist in the country, which restrict free flow of information to media in particular and individuals in general; 1) Security of Pakistan Act, 1952, 2) West Pakistan Maintenance of Public Order, 1960, 3) Officials Secrets Act, 1923, 4) Foreign Relations Act, 1939, 5) The Blasphemy Laws introduced in Pakistan Penal Code, 6) Pakistan Penal Code 1960 (Sections 295-298 and Sedition Laws 121 a, 123a), 7) Post Office Act, 1898, 8) Customs Act, 1969, 9) Telegraph Act, 1885, 10) Defamation Ordinance 2002, 11) Contempt of Court Act, 1973, and 12) Cyber Crimes Bill, 2009. In the presence of these laws, the Right to Information Ordinance may not be useful for those who are dreaming of good governance or corruption-free society.
Despite certain shortfalls, anomalies and deficiencies, the 2013 Right to Information Ordinance is a positive initiative. Now the responsibility rests with the rulers, media personalities, the executive, the judiciary and parliament to raise awareness among the people about their just human, democratic and constitutional rights. Without awareness among the common people, no one can ensure good governance, transparency and corruption-free society.
The writer is Peshawar based senior journalist.
