Federal Right to Information Bill yet again Not discussed by the Cabinet
Despite its inclusion on the agenda of the Federal Cabinet
meeting held on August 24, 2015 1 the Government of Pakistan’s
latest Right to Information Bill could yet again not be discussed and was deferred
to the agenda of the next Cabinet meeting.2 The Senate Committee
on Information, Broadcasting and National Heritage, in a meeting chaired by
Senator Kamil Ali Agha, on September 2, 2015, has expressed concerns regarding
the Cabinet’s failure to discuss the Bill, which has caused further delays
in its eventual passage. 3
The Bill, which was initially drafted in 2008, had reached
a similar stage earlier as well, most recently on December 27, 2013 when the
Ministry of Information, Broadcasting and National Heritage first moved a Summary
within the Federal Cabinet for its eventual introduction as an Official Government
Bill.4 It is unfortunate that more than 2 years on, a progressive
law has not moved past the Federal Cabinet for its passage by the Parliament.
It is worth noting yet again that the draft Bill had been widely
praised for being a modern and progressive law, with the potential to top Canada-based
Centre for Law and Democracy’s Global RTI Rating if passed in its current
form. 5
Sindh Information Minister assures early passage of new Right to Information Law
Sindh Minister for Information and Education, Mr. Nisar Ahmed Khuhro, MPA, said
that Sindh would soon get a new and much improved Right to Information Law in
place of the outdated Freedom of Information Act 2006. He was speaking to a
delegation led by PILDAT President Ahmed Bilal Mehboob which called on him at
his Sindh Assembly Chamber on August 19, 2015. Mr. Khuhro informed the PILDAT
delegation that Sindh Information Department had finalised the draft of a new
Right to Information Bill. He also informed the delegation that the new Bill
had been vetted by the Law Department and a Summary had been moved for consideration
and approval by the Sindh Cabinet. The Provincial Information Minister was hopeful
that the Cabinet would discuss and approve the bill in the near future after
which it would be tabled in the Provincial Assembly of Sindh. He said that the
Government of Sindh was keen to bring its existing Freedom of Information Act
2006 in conformity with international standards and the Government of Pakistan’s
18th Constitutional Amendment. The Secretary Sindh Information Department, Mr.
Nazeer Jamali, was also present in the meeting. PILDAT is hopeful that the Sindh
Government will facilitate the passage and promulgation of the draft Bill in
a speedy manner.
Despite Promises, KP did not undo regressive changes to KP RTI Law
A clearer picture of the widely criticized amendments to the Khyber Pukhtunkhwa
Right to Information Act 2013 has finally emerged, even though the amended Bill
has yet to be published online on the Assembly’s website. The amendments,
which were passed by the Provincial Assembly of Khyber Pukhtunkhwa on June 23,
2015, include some noteworthy clauses:
- A new sub-section (3) has been inserted into Section 28, under which all
offenses prescribed in Section 28 (1) of the KP RTI Act 2013 are now bailable,
non-cognizable and triable by the District and Sessions Court.
- The clause under Section 2 (i)(iii) which places the Provincial Assembly
of KP under the ambit of the RTI Act 2013 has been deleted.
- A new word has been inserted into Section 24 under which two Information
Commissioners will be appointed to the KP Right to Information Commission
instead of three in the original Act.
Of these amendments, the first two are the most problematic.
The second amendment has already been widely criticized and pressure has been
mounting on the Provincial Government with every passing day that it fails to
honour public promises to repeal the controversial amendments. These include
promises for an “immediate repeal” of the widely criticized amendments
tweeted from the Pakistan Tehreek-e-Insaf official Twitter account on July 26,
2015, and similar assurances given by Chief Minister of KP, Mr. Pervaiz Khattak,
in a meeting with PILDAT on July 30, 2015.
Since making these well-publicized promises, the Government
of KP has yet to include an Order to repeal the amendments within the 15th Session
of the Provincial Assembly, despite holding seven sittings between August 3,
2015, and August 17, 2015, 6 after which the Assembly Session was adjourned till September 7, 2015.
7
These amendments, especially the first amendment listed above,
must urgently be repealed as they dilute the powers of the Information Commission
to prosecute a criminal offence under the law’s provisions. In KP’s
original RTI law, there was no specific reference to cognizability of offences.
However, now that offences under the RTI Act are non-cognizable under the new
clause inserted into Section 28, arrests for violation of the law’s provisions
cannot be made without approval from the District and Sessions Court.
In comparison, the Punjab Transparency and Right to Information
Act 2013 only allows courts to take cognizance of offences under it upon the
explicit direction of Punjab Information Commission or one of its officers (Section
17), thereby preserving its status as an independent statutory body for enquiring
into RTI-related offences and complaints. 8
Under KP’s controversial RTI Amendment Act 2015, offences
under the RTI act may now also be tried within the District and Sessions Court.
In the original RTI Act of 2013, under Section 25 (2)(f), offences such as obstruction
of information disclosure by a public official could only be forwarded by the
KP RTI Commission to the Peshawar High Court, which, according to Article 199
(1)� of the Constitution of Pakistan, is the initial forum for appeals or
petitions against the violation of fundamental rights such as the right to information,
which is enshrined under Article 19A of the Constitution. By declaring offences
under the RTI Act as triable within lowers courts, specifically the District
and Sessions Courts, the RTI Amendment Act is in direct violation of the Constitution.
In comparison, Section 18 of Punjab’s RTI law allows
the decisions of the Information Commission to be challenged only through internal
review, or through petition to the High Court. Thus this law is in accord with
Article 199 (1)� of the Constitution as it contains no provisions allowing
petitions or complaints to be heard in the lower courts.
The practical implications of this amendment have yet to be
seen, and will be closely followed by PILDAT in the coming months. It is hoped
that these amendments will finally be repealed once the current Session of the
Provincial Assembly is adjourned on Monday, September 7, 2015, as per promises
made by party leaders in the Government of KP.
Punjab Information Commission summons official to explain
non-compliance of Punjab Governor’s House under the Province’s RTI
law
In summons dated August 20, 2015, the Punjab Information Commission has called
on Mr. Tariq Shehzad, Deputy Secretary (coordination) and Public Information
Officer at the Punjab Governor House, to explain why its April 15 order 9 requiring immediate disclosure of expenditure-related records held by the
Punjab Governor House has still not been followed. 10
Mr. Shehzad had earlier been issued a show-cause notice by
the Punjab Information Commission on March 3, 2015 after repeatedly failing
to appear before it during hearings. The Commission, in its most recent summons,
has called on Mr. Shehzad to explain why his office has not complied with its
orders.
PILDAT believes that compliance with the Commission’s
orders is essential for the Punjab Governor House. As a public body, the Governor
House must restore public trust within it by committing to the proactive disclosure
of all prescribed categories of information, including budgetary and expenditure-related
records.
Controversial appointments to Khyber Pukhtunkhwa Right
to Information Commission challenged
Two separate developments have cast doubts on the internal functioning of the
KP RTI Commission. Both of these developments suggest discrepancies in the Commission’s
recruitment processes.
The first development involves the stay imposed by Peshawar
High Court (PHC) in response to a petition submitted by certain contractual
employees of the Commission seeking permanent service contracts. The PHC has
stayed the filling of recent openings announced by the Commission on a permanent
basis as these positions are currently being occupied by the petitioners.
The Additional Advocate-General of Khyber Pukhtunkhwa, Mr.
Waqar Ahmad Khan claimed that the openings had been announced in accordance
with established service rules to fill said positions on a permanent basis.
He added the petitioners may apply for these posts in competition with other
candidates., Under the Khyber Pukhtunkhwa Civil Servants Act, 1973, appointment
of the petitioners was made on an ad hoc basis, 11 and, according to the Khyber Pukhtunkhwa Civil Servants Rules, 1989 Section
14 (1) such appointments may not exceed 12 months in duration. 12 However, since the case is before the court, only the court’s
verdict can resolve the issue.
The second development, on the other hand, provides greater
cause of concern. It involves a writ petition submitted to the PHC by concerned
citizens, in which they allege that senior-level appointments to the Commission
were made against established service rules. These allegations extend to the
appointment of Information Commissioner, Mr. Abdul Matin Khan, and the appointment
of a consultant, who was later given the charge of Secretary, with all associated
privileges.
This second appointment appears to be more contentious. It
was allegedly made in violation of service rules pertaining to re-employment
of retired persons, and the term of this appointment was also extended allegedly
illegally by another year. As mentioned earlier, according to Section 14 (1)
of the Khyber Pukhtunkhwa Civil Servants Rules, 1989, an ad hoc appointment,
such as one made on a contractual basis, cannot have a term exceeding one year.
More facts are required to determine if the consultant’s
appointment also violated rules pertaining to the re-employment of retired government
servants; namely, whether the appointment was made with the approval of a higher
appointing authority, in this case the Chief Minister as the assigned post of
Secretary is above BPS-17.
Disbursement of HEC Scholarships must be opened up to public scrutiny
A meeting of the Senate Special Committee on the Issue of Lapse
of Various Foreign Scholarships, 13 was convened on August 12, 2015, to determine why funds allocated by various
international agencies for Pakistani students seeking to study abroad had lapsed
over the last 4 years. 14
It was revealed during the meeting that while the HEC had processed
1,457 foreign-funded scholarships in the last four years, records on the number
of scholarships that had lapsed were not available due to lack of a coordinating
mechanism between the different bodies and Ministries involved in scholarship
disbursement. However, upon authority of Senator Mushahid Hussain Sayed, PILDAT
has learnt of substantial irregularities and flaws in the process of awarding
these scholarships to students. According to the Honourable Senator, under the
guise of a lack of coordination, these scholarships are neither being publicized
properly nor being awarded on merit.
To ensure that these scholarships are awarded transparently
to deserving students, the process of disbursing such funds must be opened up
to public scrutiny. The Federal Right to Information Bill, once passed, will
provide a powerful tool for achieving this purpose. Even if the bureaucracy
successfully resists any measures taken within the Senate for ensuring transparency
in the award of foreign scholarships, data and information on when and how these
funds are being disbursed may be made available in a timely fashion through
public information requests.
Data on Punjab schools still not accessible
A news report emerged on August 21, 2015, 15 regarding the Failure of School Education Department, Government of Punjab,
to meet its information disclosure obligations. Important categories of information
have not yet been published on the Department website. Upon further review,
PILDAT found that the Department has failed to proactively disclose information
related to:
- The categories of information it possesses
- Decision-making processes it follows
- The amount of subsidies and details of beneficiaries of subsidies granted
by it
- Particulars of permits and authorizations granted by it
- The report also reveals the Department’s failure to respond to information
requests submitted by a concerned citizen on February 2, 2015, and August
3, 2015.
This failure to proactively disclose key categories of information
specified in law diminishes the credibility of the widely heralded Punjab Education
Sector Reforms Programme (PESRP). PILDAT feels that all organizations and public
bodies involved in the PESRP should comply with provisions of RTI law, thereby
removing public suspicion of this all-important Programme.
Khyber Pukhtunkhwa RTI Commission Complaints proceeding
status: August 201516
A total of 89 complaints were submitted to the KP RTI Commission in the month
of August 2015. Of these a total of 9 cases were closed, of which one was beyond
the Commission’s jurisdiction. The remaining 8 closed cases all resulted
in the provision of requested information within the prescribed time period.
This is a much higher rate of disclosure than was observed in the previous month,
in which only 10 out of 117 cases were closed, a majority of which were beyond
the Commission’s jurisdiction. For more details please see the previous
issue of this Monitor. 17
RTI Landscape in South Asia
Central Government of India calls for removal of Political Parties under RTI
Act ambit
In response to a public interest petition submitted before the Indian Supreme
Court on May 19, 2015 regarding inclusion of political parties within the ambit
of the country’s RTI legislation,18 the Central Government
of India, on August 24, 2015, argued that political parties could not be considered
public bodies under law, and therefore no information disclosure obligations
could be imposed on them. 19
Earlier, in July 2015, the Supreme Court summoned the Central
Government of India and six national-level political parties – including
the Indian National Congress, Bharatiya Janata Party, Bahujan Samaj Party, Communist
Party of India (Marxist), Communist Party India and Nationalist Congress Party
– to respond to a petition submitted by a civil society organization for
disclosure of information on income and donations received by political parties.
20 This petition
was placed before the Supreme Court after the abovementioned political parties
refused to comply with orders issued by the Central Information Commission (CIC),
India, for the disclosure of income and donations-related information held by
them.
Political parties, both in general and within India, receive
substantial public benefits, such as tax exemptions and grants of public land,
and carry out an essential public function – marking them as public bodies
by most modern definitions in law. If the Government of India begins ensuring
political parties’ compliance with the CIC’s June 3rd order, the
decision is likely to reverberate meaningfully within South Asia and the wider
region. Until this decision is pending PILDAT has flagged this issue for future
monitoring. 21
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