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Your right to know! Article 19 A

  "Democracy cannot meaningfully function without an informed citizenry, and such a citizenry is impossible without broad public access...


"Democracy cannot meaningfully function without an informed citizenry, and such a citizenry is impossible without broad public access to information about the operations of government." ~ Ryan Shapiro

Written by Maliha Fayyaz

As the current political atmosphere continues to make waves of numerous controversies, turmoil within the state organs is at its very peak and troubling many minds with questions as to, what compelled the Supreme Court to take SUO MOTO action. Or, why did the parliament initiate the vote of no confidence against the previous prime minister? Or, which laws authorised their actions? Although all these actions pertain to several constitutional articles, their fundamental underlying rationale finds its legitimacy in the idea of accountability.

Accountability of state organs and government agencies is considered to be of such immense importance that from various writings it is transparent that throughout history, authors and scholars of law have tried to make use of their articulate reasoning in providing the constitutional organs with revolutionary theories to keep government bodies in check.

James Madison while advocating for one such peculiar idea of "checks and balances" provided a very interesting proposition with regards to human nature when they are plagued with the vice of power, in his most famous quote from the federalist paper, James Madison said: 

"If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary..... A dependence on the people is no doubt the primary control on the government ",

I would like to emphasise on the last line of this quote that if we were to read between the lines, one interesting interpretation would be to think that there may have been a slight indication towards the idea of accountability, that primary control on government is maintained through its accountability towards the general public, as after-all in a democratic country it is the voters who are considered the political sovereign or popular sovereign if we go by the definition of Cicero.

Now, one can argue for the various ways through which government can be held accountable to the general public but if we as the general public were to ask the government itself to provide us with the information on crucial matters, ensuring transparency, that should suggest the most logical and direct approach towards the matter and this right is exactly what has been granted to the people of Pakistan through article 19-A of the constitution which states 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,"

When it comes to legal awareness, unfortunately, the people of Pakistan suffer from an outright lack of it. It is very important to understand that one cannot fight for a cause whose existence is an unknown knowledge. So, to utilise our fundamental rights we must delve into the understanding of laws governing these rights.

Constitutional history of Article 19-A:

Right to information (RTI) falls within the scope of freedom of speech (Article 19). Originally 1973 constitution did not recognise such a right to information but the Supreme Court’s interpretation in the 1993 Mian Nawaz Sharif v. The President of Pakistan case provided a new perspective on the provision of freedom of expression, ruling that the right to receive information can be “spelt out” from it. In addition to this, in PLD 2008 Karachi 68, the Sindh High Court stated:

 “access to information is the sine qua non of constitutional democracy. The public has the right to know everything that is done by the public functionaries. The responsibility of public functionaries to disclose their acts works both against corruption and oppression.” 

Finally, the 18th Amendment, passed in 2010, explicitly granted the right to information under Article 19-A to the people of Pakistan. Although this right does provide the people of Pakistan with access to information in all matters of public importance it must be noted that the provision also rules for reasonable restrictions imposed by law. And the word “reasonable” has not been clearly defined which leaves an open room for interpretation hence it may prove harmful to the liberty enjoyed by the people in the exercise of their rights.

As can be observed in Mr Zahid Abdullah V. District Coordination Officer Rahim Yar Khan, in which exception clause under Punjab Transparency and Right to Information Act 2013 was invoked, stating that, “the mere mention, assumption or apprehension of possible harm to life or safety of a person is not enough to claim an exception under section 13 (e) of the Act”.

Laws pertaining to RTI:  

Government agencies at the federal and provincial levels have promulgated several laws to safeguard the interests of article 19-A notably, the Right of Access to Information Act, 2017 (at the federal level), the Punjab Right to Information and Transparency Act 2013, The Sindh Transparency and Right to Information Act passed in March 2017, Balochistan Right to Information (RTI) Act, 2021, The Khyber Pakhtun Khwa Right to Information Act, 2013.

Under these acts several information commissions such as Pakistan Information Commission and commissions belonging to each province except for Balochistan have been established, their websites remain open to the public at large where appeals and applications can be submitted in the digitalised form and they further provide guidelines for the use of website and RTI.   

What kind of information can be accessed through RTI?

The RTI Act 2017 has wide scope as it covers all branches of power and a wide range of further bodies. These include the executive and administration, including all ministries, “statutory corporation or other body corporate or institution set up or established or owned or controlled or funded by the Federal Government” and “nongovernmental organisation which directly or indirectly receives or has received public funds, subsidy, tax exemption, piece of land or any other benefit” However, the defence forces and anything connected to national security are already excluded at the level of definition of records.

According to the statistics issued by PIC, citizens have requested information such as enquiry reports against officials, certified copies of the merit lists of candidates and recruitment criteria, number of FIRs filed under different provisions of Cyberlaw and number of convictions, a total number of sanctioned and vacant posts in different public bodies and the quota for the disabled and transgender persons, finalised audit paras and audit reports of public bodies, information about legislative bills laid in the Parliament, information about the publications pertaining to the asset details submitted by parliamentarians to Election Commission of Pakistan details of assets of judges and officers and salaries, perks, privileges and benefits of judges, civil and military officers and many more.

Showing that RTI can be utilised in realising our other rights like access to justice, and gainful employment on an equal basis by ensuring judicious utilisation of public funds, improving governance, and reducing corruption and inefficiency in public bodies through transparency and public accountability.

What is the current status of RTI in Pakistan:

With all the acts in force, one would expect that even with all the exemption clauses, transparency into governmental actions and their accountability to the general public must have been effectively achieved to some extent but statistics tell us otherwise.

In 2020, CPDI conducted a study in all the provinces with regard to the status of RTI in Pakistan. In the province of Punjab, five (5) departments were selected through random sampling and three (3) information requests under Punjab Transparency and Right to Information Act, 2013 were sent to each department. This makes a total of fifteen (15) information requests submitted in the province of Punjab. But in the end, only 2 responses were received.

Other statistics show that, since the establishment of the Pakistan Information Commission (PIC) in 2018, it has so far received a total of 1734 appeals for unanswered requests, proving that it is difficult to get information from federal public bodies, be it constitutional bodies, federal ministries or commissions etc. Federal public bodies provide information as an exception when citizens file information requests under the Act and not as a rule even when requested information is of simple nature and does not need to be contested on any legitimate grounds. As a consequence, citizens have to file appeals with the commission.

What is the future of RTI in Pakistan?

"Secrecy is the linchpin of abuse of power, . . . its enabling force. Transparency is the only real antidote." ~ Glenn Greenwald

A deeper dive into the several implementation strategies adopted for RTI will disclose that they suffer from structural inefficiencies while unawareness among the general public and the low ratio of RTI users is also a leading factor in these problems not being resolved yet, the majority of citizens do not bait an eye towards such issues and are unfortunately stuck in the loops of their partisan preferences. Nevertheless, the future of RTI seems bright, as the general public is becoming more aware of their rights, this awareness is far from perfect yet but something is better than nothing. Once the general public gains more awareness, there is potential that the demand for government accountability and transparency will gain momentum compelling the government bodies to take more effective measures in ensuring that the right is easily available to all.