| |
Culture
of Silence Must End
The
system of government in most of the developing countries, including
Pakistan, is a cabal, with a secret clique operating behind closed
doors, that remains inaccessible to the common citizenry. In fact,
this has been one of its major sources of power. Mercifully, however,
this culture of secrecy that characterizes government functioning
is gradually changing due to global developments.
The right of access to information is growing, assuming prominence
in the contemporary world with the spread of democratic culture
and the increasing credence given to people's participation in
the process of sustainable development. It is being increasingly
viewed as fundamental to the realization of economic and social,
as well as, civil and political rights. Effective democracy requires
informed participation by all.
Many governments deny their citizens these rights and perpetuate
their own rule through cultures of secrecy. While this is true
of even the most democratic government, its impact on the people
of the developing countries is more marked. Having been left out
of the process of governance due to poverty and illiteracy, the
majority of the population in such states being governed cannot
comprehend the processes that affect their lives. Suppression
of information by the State thus often leads to the most blatant
forms of human rights violations.
In recent years, large scale corruption and abuse of power by
governments have placed a renewed emphasis on the need for transparency
and accountability which can only be established where there is
easy access to information, not only by those in the government
but by a range of actors in the private sector. Similarly, people's
active involvement in the development process requires full and
accurate information regarding development plans, resource allocations
and expenditures.
Principles of Accountability
In a democratic system, governance from
the village to the central level has to be accountable to the
people. A Right to Information will ensure that the people can
hold public bodies accountable on a regular basis without having
to lay the entire burden on their elected representatives who
are themselves often unable to get the information.
Principles of Participation
Since most governmental works are carried
out for the benefit of the people they must know exactly how things
are being done. To participate in the planning and decision making
process, people must have sufficient information about the nature
of projects and programs to be undertaken in their areas. This
will enable them to give their opinion well in time for required
changes or modifications. This in turn will reduce project costs
and will increase project outputs manifold.
Principles of Transparency
In recent times, we have seen great misuse,
misappropriation and also careless use of public funds. To counter
this, it is essential that there should be complete transparency
in all public dealings. This is bound to bring about a more careful
utilization and application of funds.
Constitutional Protection of the Right to Know
The concept of freedom of information has
developed out of the basic right to freedom of opinion and expression
enshrined in the Universal Declaration of Human Rights (1948).
Its Article 19 states that:
Every one 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.
In Sweden, the constitutional guarantee of the right to know and
the concept of open government goes back to 1766. There are few
other countries whose constitutions expressly guarantee a right
of access to government held information. The South African Constitution
(1996) goes a step further by guaranteeing a right of access to
information that is required for the exercise or protection of
any rights held not only by the government but also by private
parties. Similarly, the Constitution of Nepal (1990) gives every
citizen the right to demand and receive Information on any matter
of public importance, provided that nothing could compel any person
to provide information on any matter about which secrecy is to
be maintained by law (Article 16).
The Constitution of Pakistan (1973), like many other constitutions,
enshrines only guarantees of free expression, and is silent on
the question of access to information. Article 19, relevant in
this regard,
says that:
Every citizen shall have the right to freedom of speech and expression,
and there shall be freedom of the press, subject to any reasonable
restrictions imposed by law in the interest of the glory of Islam
or the integrity, security or defense of Pakistan or any other
part thereof, friendly relations with foreign States, public order,
decency, or morality, or in relation to contempt of court, commission
of or incitement to an offense.
These guarantees of freedom of speech are being increasingly interpreted
to include also the right to receive information. The interpretation
of free expression clauses that do not expressly guarantee a right
to access to government held information requires a high degree
of judicial philosophy and activism. The Indian Supreme Court,
for example, has held that the freedom of expression clause of
the Constitution of India does oblige the government to disclose
particulars of government transaction. It is therefore becoming
increasingly clear that having a specific constitutional right
to know framework is imperative to effectively ensure a system
of open government.
Some countries, even though without constitutional guarantees
of the right to know, have adopted FOIAs (Freedom of Information
Acts). With the passage of the FOIAs, the burden of proof shifts
from the individual to the government. Those seeking information
are no longer required to show a need for information. Instead,
the need to know has been replaced by a right to know doctrine.
The government now has to justify the need for security. The FOIAs
thus have set new standards for determining which records may
be withheld. Given its potential impact and far reaching implications,
this right is usually made subject to certain conditions such
as respect of the rights or reputations of others; protection
of national security or of public order, or of public health or
morals.
Although much of the required information does not have any bearing
on, for example, national security or the reputation of others,
it is surprising to see the extent of the use of the claim of
privilege to deny disclosures in matters which do not seem to
be in the least sensitive or requiring confidentiality. Requests
for information from any public body are generally refused saying
that it is a part of secret records or that it is confidential
or that it just cannot be given. Most people continue to accept
this as the truth.
The Freedom of Information Ordinance 2002
On January 29, 1997, the caretaker Government
of PM Meraj Khalid enacted the Freedom of Information Ordinance
(No XV). All ordinances are only valid for a period of four months
under Article 89(2)(i) of the Constitution unless validated by
an act of Parliament; this was not done with this law and it thus
lapsed.
On October 27, 2002, just a few weeks prior to the induction of
the civilian government, the Musharraf regime enacted the Freedom
of Information Ordinance 2002 (No XCVI). It applied to the whole
of Pakistan; and came into force at once.
The law provides that no one, notwithstanding anything contained
in any other law but subject to the provisions of the Ordinance,
should be denied access to any official record other than exemptions
mentioned in the law. The Ordinance stipulates that it should
be interpreted so as to advance its purposes; and to facilitate
and encourage, promptly and at the lowest reasonable cost, the
disclosure of information [section 3].
Designated Official. The law requires all public bodies to designate
and notify an officer or employee to whom requests under it are
to be made. If such an official has not been designated, or if
he is unavailable, then the person in-charge of the public body
should act as the designated official [sections 10 &11].
Application for Information. The Ordinance allows any citizen
of Pakistan to apply to a designated official in the prescribed
form and at prescribed time, along with necessary particulars,
and such fee as may be prescribed for obtaining information or
public record from a public body; the latter is defined to mean
any Ministry, Division or attached department of the Federal Government;
Secretariat of the Parliament; any office of any Board, Commission,
Council, or other body established by, or under, a Federal law;
and courts and tribunals [section 2(h)]. Nothing under the law
has so far been prescribed despite lapse of six years.
No one can ask for such public record which has been published
in the official Gazette or in the form of a book offered for sale
{section 12}.
The designated official is required to supply to the applicant
the relevant information or a copy of any public record, within
21 days of the receipt of the application. If the official is
of the opinion that:
• the application is not in the proper form; or
• the applicant has not furnished necessary particulars;
or
• has not paid the prescribed fee; or
• the applicant is not entitled to receive such information;
or
• the required information or record does not constitute
a public record; or
• the required information or record constitutes a record
which is excluded under section 8,
then he should record his decision in writing and the applicant
should be informed about such decision within 21 days of the receipt
of the application [section 13].
The information or the public record, supplied to the applicant
should contain a certificate that the information is correct or,
that the copy is a true copy of the public record. Such certificate
should be dated and signed by the designated official.
Public Record
The
term "record" is defined to mean “record in any
form, whether printed or in writing and includes any map, diagram,
photography, film, microfilm, which is used for official purpose
by the public body which holds the record” [section 2(i)].
The following record of all public bodies is declared to be the
public record under the Ordinance:
• policies and guidelines;
• transactions involving acquisition and disposal of property
and expenditure undertaken by a public body in the performance of
its duties;
• information regarding grant of licenses, allotments and
other benefits and privileges and contracts made by a public body;
• final orders and decisions, including decisions relating
to members of public; and
• any other record which may be notified by the Federal Government
as public record [section 7].
The
following, however, has been excluded from the above definition
of public record:
• noting on the files;
• minutes of meetings;
• any intermediary opinion or recommendation;
• record of the banking companies and financial institutions
relating to the accounts of their customers;
• record relating to defense forces, defense installations
or connected or ancillary to defense and national security;
• record declared as classified by the Federal Government;
• record relating to the personal privacy of any individual;
• record of private documents furnished to a public body either
on an express or implied condition that information contained in
any such documents shall not be disclosed to a third person; and
• any other record which the Federal Government may, in public
interest, exclude from the purview of this Ordinance [section 8].
Complaint with the Mohtasib
If
the applicant is not provided the information or copy of the record
within the prescribed time or the designated official refuses to
give such information, then he or she may, within 30 days of the
last date of the prescribed time for giving such information, or
the communication of the order of the designated official declining
to give such information, file a complaint with the head of the
public body and on failing to get the requested information from
him within the prescribed time may file a complaint with the Mohtasib
and in cases relating to Revenue Division, and its subordinate departments,
with the Federal Tax Ombudsman [section 19].
The Mohtasib or the Federal Tax Ombudsman, as the case may be, may,
after hearing the applicant and the designated official, direct
the official to give the information or may reject the complaint.
The Mohtasib or the Federal Tax Ombudsman, as the case may be, may,
after hearing the applicant and the designated official, direct
the official to give the information or may reject the complaint.
Destruction. Any person who destroys a record which at the time
it was destroyed was the subject of a request, or of a complaint
with the intention of preventing its disclosure under this Ordinance,
is punishable with imprisonment for a term up to two years, or with
fine, or with both [section 21].
The law further requires each public body to ensure that all records
as defined under its section 2 (i) are properly maintained [section
4].
The Acts and subordinate legislation such as rules and regulations,
notifications, by-laws, manuals, and orders having the force of
law in Pakistan are also required under this Ordinance to be published
and made available at a reasonable price at an adequate number of
outlets so that their access is easier, less time-consuming and
less expensive [section 5].
The law further requires each public body to computerize all records
covered by the provisions of the Ordinance and connected through
a network all over the country on different systems so that authorised
access to such records is facilitated [section 6].
Exempted Information
Information is exempt if and so long as its
disclosure would:
• be likely to cause grave and significant damage to the economy
as a result of the premature disclosure of the proposed introduction,
abolition of variation of any tax, duty, interest rate, exchange
rate or any other instrument of economic management;
• be likely to cause significant damage to the financial interests
of the public body by giving an unreasonable advantage to any person
in relation to a contract which that person is seeking to enter
into with the public body for the acquisition or disposal of property
or the supply of goods or services;
• by revealing information to a competitor, the public body
would be likely to cause significant damage to its commercial activities
[section 18].
• result in the commission of an offense;
• harm the detection, prevention, investigation or inquiry
in a particular case;
• reveal the identity of a confidential source of information;
• facilitate an escape from legal custody;
• harm the security of any property or system, including a
building,
Local
Government Ordinance 2001
The four provincial laws presently in force
also attempt to promote the culture of transparency and freedom
of information. In this respect, law's section 137 states that:
Every citizen shall have the right to information about any office
of the District Government, Tehsil Municipal Administration and
Union Administration.
Every office shall provide requisite information, if not restricted
under any law for the time being in force, on the prescribed forms
and on payment of such fee as may be prescribed.
Information about the staffing and the performance of the office
of a Local Government during the preceding month shall, as far as
possible, be displayed at a prominent place within the premises
of the office for access by the citizens.
The law also stipulates that the meetings of Zila Council shall
be open to public, unless the Council, by a resolution, decides
to hold any meeting in camera [section 42(7)].
The Tehsil Municipal Administration is expected to prepare spatial
plans after disseminating it for public enquiry [section 54(1)(b)].
It may also assign or contract out any of its functions to any public-private,
public or private organization after inviting public objections
[section 54(2)].
The Tehsil Nazim is required to present a report in person on his
performance to the Tehsil Council at least once in six months [section
57].
Similarly, the functions of the Union Council include dissemination
of information on matters of public interest; and collection and
maintenance of statistical information for socio-economic surveys
and to consolidate village and neighborhood development needs and
prioritize them into union wide development proposals [section 76(a)(b)&(i)].
All local governments are required to display at a conspicuous place
its statement of monthly and annual accounts for purposes of public
inspection [section 114(5)].
The law also gives citizens and the residents of a local area to
bring any suit or other legal proceedings against any Local Government,
its officers or other functionaries, for violating their rights
[section 147]
What a right to information law should contain?
Minimal exceptions
Even though the Right to Information is a
fundamental right, exceptions under certain circumstances are inevitable.
In drafting the law, care must be taken to keep the exceptions within
the limits prescribed by the Constitution. The list of exception
must be limited and specific; and must be stated clearly, so as
not to give rise to any ambiguity and thereby allowing for misinterpretation
and abuse.
Easy Access
The law should contain provision for setting up specific systems
for storing and disseminating information and upgrading the existing
system for enabling easy access There should be a method in which
information can reach people easily such as making information of
certain types available at accessible outlets, like post office
etc. Information should also be given a simple and organized form
so that it is easy to comprehend. Gazettes and publications, which
are usually unavailable, are of no use to lay citizens, given low
literacy rate.
Reasonable Fee Structure
The law, if it provides for a levy of fee
for getting information, must ensure that the fee is reasonable
and does not act as a deterrent for asking information and does
not end up debarring information from the disadvantaged who cannot
afford the fees.
Accountability
A Right to Information law must lay down clearly
the principles of accountability. It must state specifically as
to who is responsible for providing information. Penalties should
be imposed on official who delay, without any just cause, the giving
of information or refuse on unwarranted grounds.
Time Limit
The law must contain provisions for timely
imparting of the information. The concerned public officials should
face a penalty for not doing so. The time limit should be reasonable
and should not jeopardize a person's rights; and there should be
an order of urgency and accessibility. Information regarding a person's
life should be made available at the shortest time, say within 48
hours.
Application to Private Bodies
Strictly speaking, the right to information
is for government held information. However, the law must make it
binding on private bodies to disclose certain kinds of information
that could affect public health.
Redress
Simple avenues of redress should be available
in case of refusal of information.
It is our duty to see to it that a good law is made which gives
us effective right. This can be achieved in the following ways:
• Keep track of the issue though radio, television and newspapers.
• Keep a watch on the proceeding of the Parliament or the
cabinet to know when the law is introduced.
• Find out the text of the law which can sometimes be obtained
though journalists and newspaper offices.
• Make representations regarding the issue to the concerned
officials and politicians.
• Be in touch with the people who are working on this issue
and discuss the law with them.
• Write about the issue in the local newspapers, magazines
or other publications.
• Insist on your right to know in every situation where you
need information.
Fundamentals
of the right of access to information
The public has right to have access to information
held by the government. This information could be in the form of
records, files, registers and data, copies of accounts and of procedure,
and may include information on issues concerning projects, which
directly affect the people or the environment, health, agriculture,
weather conditions etc. This information could be used by the enlightened
citizenry to hold government accountable for its actions. It is
beyond doubt the duty of the government to pro-actively keep the
public information on issues important to their well being.
|
