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Regional and International RTI News
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Landmark
High Court Decision: President cannot hear appeals to Ombudsman’s decisions
under the Freedom of Information Ordinance
A one-member bench of the Lahore High Court
led by Justice Shams Mehmood delivered a landmark judgment on the petition of
Advocate Waheed Shehzad. While hearing this petition, the High Court ruled that
the President of Pakistan could not hear appeals against the decisions of the
Federal Ombudsman and Federal Tax Ombudsman, whose decisions have been judged
as final under the Freedom of Information Ordinance (FOIO), 2002.
Advocate Waheed Shehzad had initially filed
a complaint with the Federal Tax Ombudsman (FTO) against the Federal Board of
Revenue’s (FBR’s) refusal to provide him information under the FOIO
pertaining to action taken on the recommendations issued by the Alternate Dispute
Resolution Committee. However, the FTO’s decision upholding his complaint
and ordering disclosure of the requested records was set aside by the President
Mamnoon Hussain when the FBR filed a representation before him. The petitioner
then filed a petition in front of the Lahore High Court questioning whether
the President had jurisdiction within the FOIO to entertain or decide a representation
against directions of the FTO or the Federal Ombudsman issued under the Ordinance.
In response, the Court held that Section 19
(2) of the Ordinance clearly stated that the FTO and the Federal Ombudsman could
“direct” designated officials to disclose requested information.
It further ruled that while the President could overturn the ‘recommendations’
of the FTO or the Federal Ombudsman; his Office did not enjoy the same powers
in relation to ‘directions’ issued by the FTO or the Federal Ombudsman.
The Court also ruled after the introduction of Article 19-A in the Constitution,
the exclusions contained in Section 8 of the FOIO must be “strictly construed”
in justifying the denial of information disclosure.
The Court’s ruling has been celebrated
widely within the stakeholders of Pakistan’s RTI reforms movement, as
it will reduce the time taken for requested information to reach an applicant.
The ruling will also ensure that the FOIO is construed consistently as it grants
the FTO and the Federal Ombudsman is final authority in the hearing of complaints.
Federal
Government forms Committee on Revised Draft of Government of Pakistan Right
to Information Bill
Speaking at a National Seminar on the State
of Right to Information Legislation and Implementation in Pakistan, Mr. Nasir
Jamal, Director General (Internal Publicity), Ministry of Information, Broadcasting
and National Heritage announced that the Government of Pakistan had constituted
a Committee to revise Pakistan’s internationally acclaimed Right to Information
Bill in light of the changing security dynamics of the country. He also said
the opinions of civil society organisations would be sought by the Committee
during its proceedings.
The 5-member Committee, which held its first
meeting on January 11, comprises senior Members of Parliament and the Federal
Cabinet. The Committee, which is chaired by Mr. Pervaiz Rashid, Minister of
Information, Broadcasting and National Heritage, also includes Mr. Ahsan Iqbal,
Minister of Planning, Development and Reform, Mrs Anusha Rahman Khan Minister
of State for Telecommunication (MNA, PML-N), Mr. Irfan Siddiqui, Special Assistant
to the Prime Minister on National Affairs, and Ms. Marriyum Aurangzeb (MNA,
PML-N). The Committee held its second meeting on January 21, 2016, before which
individual members consulted PILDAT on the draft RTI bill.
Article
19-A and Electoral Transparency
The Pakistan Tehreek-e-Insaf (PTI) has used
Article 19-A of the Constitution while seeking transparency in the conduct of
NA-122 bye-elections and its own intra-party elections.
In a petition to the Election Commission of
Pakistan (ECP), PTI leader Mr. Aleem Khan had requested access to the ballot
papers cast in the NA-122 by-elections that he contested against Sardar Ayaz
Sadiq, Speaker of the National Assembly of Pakistan, While Mr. Aleem Khan’s
plea for access to the actual ballot papers cast during the by-elections was
rejected, under the ECP verdict passed on February 01, he was allowed to inspect
the National Database and Registration Authority’s (NADRA’s) records
of transferred votes and inclusion of new voters on the electoral rolls for
a specific time period. This is the first time NADRA has been required to provide
access to its electoral data on a request for information under RTI.
Earlier, on January 21, the Supreme Court sought
the ECP’s reply on a petition filed by Mr. Tasneem M. Noorani, Chief Election
Commissioner of the PTI, for access to the Commission’s data servers.
Access to the Commission’s servers was once again sought under Article
19-A of the Constitution for the purpose of preparing credible voters lists
for the PTI’s upcoming intra-party elections. The petition was taken up
by a 3-member bench of the apex court led by Justice Mian Saqib Nisar after
being rejected by the Islamabad High Court on November 16, 2015.
The ECP, upon the Court’s January 21 directive,
responded formally to the petition on February 11, 2016. In its response, the
ECP refused to provide the PTI access to its data servers on account that providing
such access would damage the integrity of their data managements systems. The
ECP also stated that providing access to its servers amounted to an interference
in the performance of its constitutional function of ensuring free and fair
elections.
While the second of the two cases is sub judice,
both cases mentioned above serve as important examples of how the Right to Information
can be used in the struggle for transparent elections.
Complaint
against DGPR upheld by Punjab Information Commission
A complaint against non-provision of requested
information by the Directorate General Public Relations (DGPR), Punjab has been
upheld by the Punjab Information Commission (PIC), which has ordered the DGPR,
Punjab to provide all requested information to the applicant by Febraury 18,
2016, at the latest. A portion of the requested record (i.e. from January 1,
2015 – June 30, 2015) was updated on the DGPR website before lapse of
the February 18 deadline set by the PIC (please see: DGPR
Website). Since then, PILDAT has written to the Director General, DGPR Punjab,
Raja Jehangir Anwar, requesting access to the complete record requested.
Case Timeline
October 20, 2015: The applicant requested access
to a month-wise breakdown of the Government of Punjab’s expenditure (between
January 01 and October 20, 2015) on promotional advertisements released through
the DGPR in accordance with the Provincial Advertisement Policy, 2012. The request
was filed at a time when numerous observers had called for increased scrutiny
of the use of funds for government advertisements during the Local Government
Elections season. The first request was addressed to Raja Janagir Anwar, Director
General, DGPR, Punjab, on October 20, 2015, as no Public Information Officer
had been designated then.
November 20, 2015:
Upon receiving no response from the DGPR to this request, the applicant submitted
a request for internal review with the Director General on November 20, 2015
and received a reply on January 23, 2016 stating that the requested records
were “strictly classified” under Section 13 (1-b) and (1-d) of Punjab’s
RTI law, which protect information whose disclosure may legitimately harm the
privacy interests of an individual or commercial interests of a public body
or third party. After receiving an unsatisfactory explanation for denial of
the request, the Commission summoned the Director General and the Director (Coordination)
of the DGPR to a hearing on January 28, 2016. The summoned officials were absent
at this hearing, but were present at the second hearing called on February 08,
2016.
February 8, 2016:
During this hearing, Mr. Mukhtar Ahmad Ali, the Information Commissioner hearing
the complaint, rejected the grounds provided by the DGPR for denial of the information
request. He also directed the DGPR to take immediate steps to ensure its full
compliance with the Punjab Transparency and Right to Information Act, 2013,
especially in relation to the automation of records, the proactive disclosure
of information on the number, type and related costs of released advertisements,
the designation of PIOs and the provision of their contact details on notice-boards
and the website of the DGPR.
Punjab
Governor House discloses expenditure records on long-standing complaint under
RTI
The Punjab Governor House, acting upon the Punjab
Information Commission’s (PIC’s) February 12, 2015 order, has disclosed
records on its annual expenditures upon a citizen’s request (dated September
18, 2014). After resisting disclosure of the requested records for many months,
the Punjab Governor House has now disclosed records of its expenditure for FY
2013-2014 and FY 2014-2015 upon orders of the PIC. However, the disclosed records
do not include information on the Governor House expenditure during the month
of July 2014.
This disclosure is the first time the Punjab
Governor House has opened its expenditures up to public scrutiny. The development
is also important as it establishes the PIC as the final authority in deciding
matters of information disclosure even when its decisions go against officials
in the uppermost echelons of government.
Amendments
to KP RTI law proposed by Information Commission
The KP RTI Commission has proposed a number
of promising amendments to the Province’s RTI law. These amendments are
primarily intended to increase the Commission’s powers in enforcing its
decisions on complaints by citizens against the non-provision of information
by public bodies.
The first key amendment proposed by the Commission
is in Section 6 of the KP RTI Act. After sub-section (3), two new sub-sections
have been added to ensure that designated officials, i.e. Public Information
Officers, responsible for dealing with public information requests are provided
full support by their departments. Interference by superiors is the main reason
why Public Information Officers are unable to ensure full disclosure of information
at the level of individual government departments. In this regard, the new Section
26 (4) in the proposed Amendment Bill ensures that Heads of public bodies can
now be prosecuted for obstruction (defined in Section 28) in case a Department
or public body fails to release information, upon directives of the Information
Commission. Further amendments to Section 28 (1)(d) guarantee that provision
of false or misleading information upon request is also considered as an offence
under the RTI Act. Finally, insertion of new Section 26 (5) and (6) defines
procedures for collecting fines imposed by the Commission against non-provision
of information by Government Departments and public bodies. Previously, the
Commission lacked any mechanism for collecting such fines, primarily due to
non-promulgation of Rules under the RTI Act.
Khyber Pakhtunkhwa’s (KP’s) Right
to Information Act was one of the best RTI laws in the world when it was promulgated
in December 2013. A number of controversial amendments inserted into the law
by the Provincial Assembly in June 2015 unfortunately weakened the law. The
new amendments proposed by the Commission, if passed by the Provincial Assembly
of KP, will make the Province’s RTI law even more comprehensive than when
it was initially promulgated in 2013.
Progress
on Sindh’s RTI Bill
On February 29, 2016, PILDAT met with Secretary
Information and Archives Department, and Secretary, Law Department, Government
of Sindh to discuss progress made on the Province’s draft Right to Information
law.
The representatives of the Government of Sindh
said that the Bill had only recently been vetted by the Law Department.
They also said that the Government was now inviting feedback on the Bill from
civil society. They affirmed that this feedback would be incorporated in the
Bill before it is tabled in the Provincial Assembly of Sindh.
Sindh’s draft Right to Information Bill,
2015 is, in many ways, an improvement on its predecessor, the outdated Freedom
of Information Act, 2006. It established a dedicated agency, the Sindh Information
Commission to implement and monitor the state of RTI implementation within provincial
public bodies under its purview. Section 22 also ensures that the Commission
will be provided adequate funds to carry out its prescribed functions. The draft
law also improves on its predecessor by expanding the categories of offences
under which individuals may be sanctioned under the Act. Finally, the draft
RTI Act also provides protection to whistle blowers under Section 24, a provision
that is still absent from the acclaimed Punjab Transparency and Right to Information
Act, 2013.
Despite these improvements, the Bill is not
as robust as the Punjab Transparency or Right to Information Act or the Khyber
Pakhtunkhwa (KP) Right to Information Act, 2013. Earlier, on November 5, 2015,
Honourable Nisar Ahmed Khuhru, the then Provincial Minister of Information,
had stated that Sindh’s draft RTI law would be even more progressive than
its counterparts in KP and Punjab.
The Bill, for example, explicitly excludes certain
types of records like file notings and minutes of meetings from the purview
of RTI Bill in addition to specifying exemption clauses for records to be withheld
based on the harm caused by their disclosure. This places undue restrictions
on the citizen’s right to know, as certain types of records shall not
be disclosed under the Act, even if their disclosure does not harm the public
interest.
Section 5 of the Bill pertaining to proactive
disclosure is also weaker than similar provisions in the KP and Punjab RTI laws
as it does not specify which kinds of records must be proactively disclosed
to the public.
In terms of the procedure for submitting information
requests, Sindh’s draft RTI law is also less progressive than its counterparts.
Applicants are required to submit their requests in a prescribed form and pay
a fee upon submission. This requirement will greatly reduce the level of access
for the most marginalized sections of society.
The draft law also fails to specify the forum
for appeals against the Sindh Information Commission. Finally, the procedure
for appointment and removal of Information Commissioners must be revised to
ensure transparency and eliminate arbitrariness within the recruitment process.
Regional and International RTI News
United Kingdom’s Information
Commissioner advises against Weakening of the Freedom of Information Act
United Kingdom’s (UK’s) Information
Commissioner Christopher Graham has testified against revising the country’s
Freedom of Information Act, 2000 on January 20, 2016. Mr. Graham testified at
the first day of hearings sponsored by a Special Commission formed to provide
more protection for information exchanged between ministers and civil servants.
Among other things, the evidence he provided in his testimony challenged the
notion that decision-making in government was being compromised due to disclosure
under the Act. He stated that in 2015 83% of information requests addressed
to the Central Government were denied, whereas 69% of information requests on
the same were denied in 2014. He was also of the view that the exemption clauses
in the Act (i.e. Section 35 and 36) were sufficient to protect the integrity
of government decision-making, especially in light of revisions made to these
clauses in 2013 and 2011, respectively. |
