Monitor on Knowing Your Right to Information | January and February 2016


In this issue

Regional and International RTI News


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 o