Stakeholder's Consultation:

Operationalization of Article 19-A (Right to Information)

Strengthening Participatory Federalism and Decentralization

Strengthening Participatory Federalism and Decentralization

Stakeholder's Consultation:

On October 31st 2013, the Centre for Civic Education Pakistan and UNDP organized a stakeholder's consultation on the “Operationalization of Article 19-A (Right to Information)” Prospects and Puzzles. This consultation aimed to contextualize the various aspects of this right, map existing legal framework and explore how this right is realized in federally organized countries. The following objectives were in mind:

1. To understand the current legislative landscape, and offer inputs to improve the legislative landscape and offer inputs to improve the legislative regime.

2. To examine the status of implementation of RTI laws and provisions

3. To seek ideas for addressing the challenges in implementing the RTI laws

It was also hoped that a briefing paper would emerge as a result of this consultation. Members of civil society, academics, scholars, representatives of media, government officials, donors and other stake holders came together to explore the opportunities for extension of the right to information (RTI) in Pakistan, and the formulation of a strategy for strengthening the implementation of RTI laws.Access to information is viewed as an instrument for transparency and accountability, integral to good governance and people's effective participation in public affairs. It is recognized as a fundamental right in the world today, with 90 countries having passed legislation to ensure their citizens' right to know and many in the process of realizing this aspiration.

Pakistan is signatory to both the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (ICCPR), and had become the first South Asian country that promulgated Freedom of Information in 2002. After one decade the debate remains static. Pakistan has acknowledged the citizens' right to information through the 18th Constitutional Amendment. Balochistan and Sindh Assemblies passed 'Freedom of Information' Acts in 2005 and 2006 respectively, and both Khyber-Pakhtunkhwa and Punjab have drafted 'right to information' ordinances. However, it has been observed that the culture of information sharing is yet to take root, and implementation offers a myriad of administrative challenges.

Operationalization of Article 19-A (Right to Information)

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Proceedings:

Inaugural Session:The day's proceedings began with a welcome address by the Executive Director of the Centre for Civic Education Pakistan, Zafarullah Khan. He welcomed the panelists and the audience to this deliberation on the right to information in Pakistan and extended a special welcome to Senator Farhatullah Babar who has led legislative reform in Pakistan and made efforts for the drafting of the federal law on RTI. He reminded the audience that this is the first RTI law that has been proposed by the elected representatives of the people of Pakistan. Mr. Zafarullah Khan updated the audience on the current legislative picture with regards to the right to information, Sindh and Balochistan assemblies had passed right to information laws in 2006 and 2005 respectively. Khyber Pakhtunkhwa has passed the Right to Information Bill and in Punjab this law exists in the form of an ordinance.

Mr. Zafarullah Khan presented a poster which showed the 247 year history of the development of right to information laws in the world. The first law was passed in Sweden in 1776. He said a new light colour has been added to demonstrate the countries where these have laws on paper but operationalization has not been achieved.

Mr. Khan expressed his deep appreciation for the wisdom of the parliament of Pakistan which incorporated 19A in the chapter of fundamental rights through the historical 18th Amendment. Article 19 A states “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”.

He told the audience that the Centre for Civic Education has translated this right to Urdu, Punjabi, Sindhi, Balochi, Pushto and Saraiki languages of Pakistan. He said that now the auspicious moment has arrived when the National Assembly and Provincial assemblies are all talking about this right. At the Federal Level the RTI law at the time of the conference had been tabled at the Senate. Balochistan adopted this law in 2005, Sindh in 2006 clauses about RTI also incorporated in the local government laws. In Khyber Pakhtunkhwa this right has been recognized through an ordinance whose life ends on November 11th and Mr. Khan expressed hope that this right will be made part of the law. In Punjab, the legal life of the ordinance will end in January 2014 and it is yet to be tabled to the provincial assembly. The local government law of Punjab has also recognized this right through clause 136.

Mr. Khan said that today 200 million Pakistanis have a constitutionally guaranteed right to information. In 2013, the populace enjoys legal cover at the provincial as well as federal levels; however, the mere adoption of these laws is not sufficient as we have failed to implement most of these laws adequately. He said that at this consultation we will attempt to figure out how this implementation process can take place. He affirmed that it is very important to assist the citizens of Pakistan in exercising this right saying that the Centre for Civic Education has remained committed to this cause based on the belief that “We love our country, it's the government that we all have to be vigilant about.”

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Marc-Andre Franche Country Director UNDP welcomed the audience and thanked them for showing through their presence at the consultation that they are torch bearers for the achievement of this right in Pakistan. This right is crucial for the future of democratic institutions in Pakistan and for the deepening of accountability and participation. On the behalf of UNDP he expressed pleasure at being associated with this effort. He appreciated the Centre for Civic Education for their constant leadership on these issues and said that for this work they merit the support of UNDP and other donors.

He said that the freedom of access to information has been recognized as a fundamental right in the constitution through the 18th Amendment. The 18th Amendment expanded the base of fundamental rights in Pakistan, through articles 10-A on dealing with the right to fair trial, article 19-A right to information and article 25-A which is the right to the access to education. Although the 18th Amendment was passed three years ago, the operationalization of the right to information is still pending. Mr. Franche told the audience that for UNDP, the implementation of this law is an important issue because experience in over 177 countries demonstrates that the operationalization of legislation that has to do with the right to information has a direct impact on good governance. In Pakistan we see the achievement of this right as fundamental to strengthening democracy. The UNDP has made efforts towards the operationalization of right to information legislation all over the world and has assisted provincial and federal governments in strengthening their own institutions and systems through public administration reform. UNDP in Pakistan is building upon these experiences at the global and regional levels to strengthen democracy and good governance in Pakistan. He said that this consultation is part of the UNDP's project in Pakistan “Strengthening Participatory Federalism and Decentralization” which is aimed at providing support for the implementation of the 18th Amendment by informing, facilitating, and optimizing the process of devolution and transition management at federal, provincial and grassroots levels. The project will be assisting federal and provincial governments in tackling the challenges confronted at different tiers of government during this transition management cycle. As part of this project, a number of consultations will be held at the provincial and federal levels for us to be able to identify the bottlenecks that are facing governments in the operationalization of right to information. We hope that through these consultations we can identify areas which could use our support in improvement. We hope that ideas and perspectives can be shared today and that this conversation will continue in the course of this project.

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Senator Farhatullah Babar was invited to share with the audience the main contours of the proposed law at the federal level. Senator Babar thanked the UNDP and the CCEP for organizing this event. He told the audience that the struggle for right to information began in Pakistan as early as 1990s when strenuous efforts were made for its achievement. He clarified that this has been a joint effort by a number of people and parties and no one individual can claim the credit for its achievement. He told the audience that he just happened to be at the right place and at the right time, for him to be a part of this journey. Senator Babar said that he was deeply moved by the song put together by the Centre for Civic education on the citizen's right to information. He said that this song sums up the philosophy behind this law perfectly; clarifying that the media is not the only stakeholder with regards to this right but every single citizen of Pakistan is a major stakeholder.

Senator Babar affirmed that no law is perfect and the more you do, the more room for improvement is created. He said that the legislators have made an effort to draft a good law but are willing to hear ideas to improve it. He reminded the audience that the operationalization of a right is a long drawn process which merely begins with a piece of legislation. The National Assembly and the Senate can make laws in Islamabad but the Provinces must also play their role and so must the local governments. He said that even if all these were to make efforts towards the achievement of Article 19-A, operationalization would still not be achieved overnight as the culture of secrecy that exists in Pakistan will take a long time to be undone. So, the passing of legislation is only one step in a long process. However, he said, there are two positive aspects that must be appreciated. One that a piece of legislation has been placed before the Senate of Pakistan, and second that it has the consensus of all political forces in the country behind it. This will also accelerate the momentum towards the achievement of this law. He told the audience about some of the principals that had guided the drafting of this law; these included maximum disclosure, minimum exemptions and the inclusion of an enforcement mechanism. He said that no government secretariat will be allowed to stand in the way of this act. Now the government will be answerable to the citizens and must state in writing why a piece of information in considered as a matter of national security.

Senator Babar added that when there is further debate over this legislation we plan to add the word 'parliament' in it, which had previously been not been included. He said that there is a culture of secrecy which results from social attitudes and people will continue to try to circumvent laws if there is no change in attitudes. He concluded by saying that he is looking forward to receiving suggestions for the improvement of this law.

In response to some of the comments that were put forward, Senator Babar said that the Federal Ombudsman was handicapped. Its effectiveness can be gauged from the fact that the office remained empty for a number of years. The latest legislation also to improve the working of the Obudsman has ensured that this office is not left unoccupied ever again. He added that the Ombudsman does not have the power to punish anyone over RTI related complaints. Only the wilful destruction of records is a punishable offence. In Khyber Pakhtunkhwa's Right to Information law a separate commission has been made to deal with right to information related complaints. This commission is headed by a retired judge. Senator Babar commented that while this is a good way of dealing with RTI complaints, he is not in the favour of assigning more powers to the judiciary. While Pakistan's judiciary comprises of outstanding individuals whose competency and honour is second to none it is not necessary to have judges heading appellant bodies. Finally, he appreciated the point made by Chaudhary Shafique about how even parliamentarians are sometimes prevented from seeing answers to their parliamentary questions.

Provincial Progress and Prespectives

Barrister Adnan Kasi, a renowned member of the legal community, active member of citizen's group for constitution and principal, Law College of Balochistan commented on the current freedom of information act in Balochistan. Barrister Kasi said that Balochistan has the honour of claiming to be the first among the provinces to pass an RTI law. However, just as the process of implementation of changes brought about by the 18th Constitutional Amendment has been slow in Balochistan; the same is true for right to information. He said that the most important hurdle is the lack of a law that specifies the procedure for classification of information.

Second Session:

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Barrister Kasi said that this law has given powers to the provincial ombudsmen but implementation has remained lacking. He also said that RTI related laws need to make non-compliance, a punishable offense. He concluded by saying that it is now time to repeal this law which has been in place since 2005. The new law should be on the same footing as the Khyber Pakhtunkhwa law with a similar commission in place. It is not feasible to go to the federal or provincial ombudsmen each time an RTI related complaint is made.

Muhammad Maroof Mitha commented on the current legal picture in Punjab saying that there are aspects to the current ordinance that are positive but there is room for improvement. Mr. Maroof said that this law has included a proper mechanism for internal review and a complaint can be filed before the commission. The public information officer is bound to share information within 14 days and failure to do so can be reported. Another positive aspect that there is no indemnity against mal-complaints and so anyone can file a request for access to information. Further the language used is clear and simple.

There are still aspects that can be improved. Public officers can still refuse requests which are made with regards to issues of economy and this should not be a part of the exclusions. He added that the process of rulemaking should be made time bound. Finally, Mr. Maroof said that the number of members of the information commission has not been specified and this aspect can create room for abuse.

Ms. Zamiza Azmat dissected the Sindh Freedom of Information law in detail. She pointed out that in Section 2 the definition of public bodies only includes provincial organizations and does not include local organizations. She added that records don't include minutes from meetings which are an important way of showing how decision making is carried out. In Section 5 it is suggested that rules and regulations be published but Ms. Azmat said that the budget should also be published. She commented that Section 6 calls for information to be provided within a reasonable time period but this is not possible when there is no computerized system and hardly any records are maintained. In Section 8, there is a category which includes classified and secret information but there are no rules for classification. In Section 13, it has been stipulated that a response be given but it is not necessary to disclose information. Sections 16, 17 and 18 talk about exclusions such as international relations, privacy and information related to the economic system but it is not clear who will decide whether releasing information will be harmful or useful.

Ms. Azmat lamented that while this law has a penalty for a mal-request there is no penalty against those

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officials who withhold information. In India an official can be fined for refusing to provide information to a citizen and this amount is directly deducted from the official's salary. She said that perhaps Pakistan can introduce a similar punishment for RTI related complaints. Finally, a commission should be created to serve as an appellant body which should be jointly headed by members of judiciary and the civil society.

Mr. Raja Shafqat Abbassi Chairman Press Council of Pakistan said that we have been pressurizing the government for the implementation of the right to information for some time now. He said that he is glad to have been part of the process and this is a great day for Pakistan as this bill has been moved into the senate. There has been debate in the civil society and for the first time the council moved a resolution which has been respected by the government. Khyber Pakhtunkhwa has taken the lead in drafting a law and this move must be appreciated.

Mr. Abbassi said that it must be realized that this right does not only have to do with the media but ordinary citizens are the real stakeholders. People have a right to know and they must actively participate in the achievement of this right. He said that in India, the civil society and ordinary citizens have been holding government accountable and expressed his hope for a similar future for Pakistan. He also said that he has great respect for the people who have struggled for this right in Pakistan. Mr. Abassi said that there is a culture of hiding things even within offices and this must change. Public officials at all level should be given training to educate them about the right to information.

He added that when discussion takes place in the parliament, the role of the federal ombudsman must be reviewed. Appeals sit with the ombudsman for long periods of time and therefore an independent mechanism to deal with right to information related complaints must be made.

He also pointed out that in Pakistan the media often releases information about government institutions in a sensationalized manner. For this, the media has faced criticism and this can be avoided if the government releases information about its own workings in a timely and detailed fashion. Finally, he said that since the parliament is accountable to itself, a separate mechanism should be in place to deal with the right to information with regards to parliamentary activity.

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Dr. Tauseef Ahmed Khan, Chairman Department of Media at Federal Urdu University Karachi, lamented that even parliamentarians in Sindh were not aware that a freedom of information law had been passed. He said that when the 18th Amendment was passed, the media was busy with show business gossip and ignored this historical development. He said that he couldn't remember watching any television show dedicated to a discussion on this important constitutional amendment. Dr. Khan told the audience that when he discussed the issue with political science departments in Pakistani universities he found out that while faculty members were aware of this development, they did not consider it important enough to include it syllabuses. The same was true for law colleges. He said that only NGOs and English language media had given importance to the 18th Amendment. Dr. Khan declared that in Pakistan political mud-slinging rather than constitutional awareness has been the order of the day.

Dr. Khan asserted that improvement of legislation is important but it is more important to educate politicians, journalists, bureaucrats and ordinary citizens about constitutional issues. He urged the audience to present ideas for taking on this task.

Review of Briefing Paper on RTI:Mr. Jami Chandio was invited to reflect on the Right to Information paper put together by Mr. Zafarullah Khan, Executive Director of the Centre for Civic Education. Mr. Chandio thanked the Centre for Civic Education for organizing this event which is providing important information.

He said that the briefing paper is very comprehensive. It highlights the importance of the right to information for any democracy. The paper also traces the history of this right and its journey throughout the world where it has been realized that an informed citizenry is the soul of a dynamic democracy. RTI in Pakistan is a fundamental question. Mr. Chandio said, that the Pakistani democracy is still at a point where it is yet to enter the lives of ordinary Pakistanis. The question of the quality of this democracy has been ignored as we have struggled for its mere existence. The government is yet to become responsive to the needs of its citizenry and there remains a disconnection between the two. The development of the right to information will contribute towards the rebuilding of this relationship.

Coming back to the paper, Mr. Chandio said that the paper has also considered the manifestos of Pakistani political parties with regards to the right to information. This paper also gives examples from other democracies around the world which have worked towards the achievement of the right to information. Mr. Chandio pointed out that while this paper covers many aspects perhaps it should also discuss how we can overcome the hurdle of the Pakistani citizens' aversion towards official procedures. This paper should also give ideas about encouraging citizens to hold their representatives and officials accountable.

Mr. Chandio further said that all parliamentary sessions should be aired live on the television and a specific channel should be dedicated for the purpose. He commented that very few bookshops carry governmental reports. There are a number of reports that are available free of cost but are rotting in storage rooms, unavailable to the public. An effort should be made to make these reports available on the websites of government departments. He added that the whole department of defence must not be included in the secret and confidential category. Mr. Chandio said that NGOs should also share their financial reports with the public.

Finally, Mr. Chandio said that this paper should be translated to Urdu and other local languages so that it can be accessible to all Pakistanis.

Mr. Zafarullah Khan updated the audience on how the political party manifestos have treated the right to information. He said that a 'governance centric' view of the right to information shows up in the manifestos of Pakistan Muslim League-N and Q. Pakistan Muslim League F and the Qaumi Watan Party mentions RTI in the chapter on human rights. Of all the party manifestos studied the most detailed and rigorous treatment of the right to information was in the manifesto of the Pakistan Tehreek-i-Insaaf. Mr. Khan clarified that these parties were chosen because they won mandate. He said that it is positive that the Pakistani discourse on the right to information has moved from grand narratives to specific aspects of this law.

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He told the audience that for the purpose of this paper, requests made in the past had been considered and it was found that there were very few requests which were made. The role of the media ad civil society groups was also discussed. Finally, the use of technology for the achievement of the right to information has been considered and we have hailed the use of technology for the purpose as ideal with preference given to cellular phones which are widely used in Pakistan.

Reflecting on the Federal RTI law, Mr. Waseem Hashmi from the Consumer Rights Commission said that generally the right to information is seen as a sunshine law. There is a culture of secrecy in Pakistan and we all know that evil needs darkness and secrecy to survive. This law will bring transparency, good governance and accountability to Pakistan. However, the perimeters have not have clearly defined in this law which must be rectified. Further, accountability will be show to come unless the office of the Federal ombudsman is empowered.

He said that the federal RTI law has too many exemptions and the terms used are too vague. He said that there should be a deadline for the time taken to respond to information requests. Further, the law talks about the computerization of records but does not dedicate a budget for the purpose. He suggested that in order to determine whether records should be public or not a public interest test should be applied. The question that should be asked is whether the revelation of a piece of information is likely to benefit the public or concealing it. The process of appealing the decision of the ombudsman should also be clarified. Finally, he said that the education of the masses with regards to the right to information cannot be overemphasized.

Mr. Zahid Abdullah from the Coalition for RTI appreciated the laws in Punjab and Khyber Pakhtunkhwa saying that these are short and concise. He also said suggested the use of a harm test to determine whether a piece of information should be shared with the public or not. Further, NGOs and other such organizations should also share their budgets with the public. He said that it is positive to see political parties forming a consensus over this issue but a law is only as good as the paper it's written on unless proper implementation is achieved. He declared the federal law as being unacceptable.

Mr. Abdullah said that we need not look further than Khyber Pakhtunkhwa and Punjab to see the example of a

Concluding Session:

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good RTI law. He said that the security of the great state of Pakistan is important to each Pakistani but security should not be used as an excuse for keeping information from citizens. A state is only great when it is free of corruption, has good governance incorporated and when it is more secure.

He asked the politicians of Pakistan if they have used the space available to them to make laws for their own advantage or that of the citizens of Pakistan? He said that Pakistanis want to know how the tax payers' money is spent, how bullet-proof cars are bought and how laptops are distributed. He said that this information must not be denied to them.

Mr. Zafarullah Khan said that no law comes without exclusions. In Canada for example, any information that may strain the relationship between a federation and province is included in the exemptions. Belgium has developed a public interest test which may be useful. He said that the day's deliberations have shown that the role of the federal ombudsman requires review. Mr. Khan added that we must focus our efforts towards overcoming the literacy and language barrier in the achievement of the right to information in this country. Furthermore, classification criteria for official documents need to be reconsidered. Finally, operationalization of fundamental rights requires budgetary allocations however, we must remember the money spent of the operationalization of sunshine laws will save Pakistan money in the future.

Dr. Nazeer Saeed, Federal Secretary Information, informed the audience that the Ministry of Information and Broadcasting will take ownership of the RTI law and will work to ensure its implementation. He said that this decision has been taken after deliberations among various departments.He said that the passage of the proposed RTI law will usher in the culture of openness. The government does not want to hide anything from the citizens. He appreciated the efforts to raise awareness about the possibilities of RTI.

Barrister Zafarullah Khan, Federal Secretary Law and Justice, said that it does not matter whether people wake up or not but we believe that we must raise our voices. He said that we should celebrate the fact that the government today is responding to the needs of its citizens. He further said that for the right to information law to be passed there was a lot of lobbying that had to be done. He said that exemptions and permissions require deliberation and added that laws must be made time bound. He also expressed the desire to develop the concept of independent review. Barrister Khan warned that it must be ensured that the ombudsman is not transformed from a toothless body to an overbearing one. The right amount of power should be given to this body to ensure that checks and balances and independent review are not compromised. He explained that Parliaments have too much to do so laws should be very short and very brief, the rest of the responsibility should be placed on rules. Long laws have loop holes and space for abuse. He pledged that the rules and regulation for the RTI law will come not in weeks but days after the passage of legislation.

1. Speakers at the consultation agreed that Sindh and Balochistan must revisit and update their laws.

2. Participants called for the operational rules to be made on an urgent basis.

3. The currently prescribed role of office of the Federal Ombudsman with regards to right to information complaints has become obsolete and must be revisited by the parliament. Furthermore, the Federal Ombudsman, is a largely toothless body without the powers to punish those who stand in violation of these laws. Only the willful destruction of public records is a punishable offence, while no punishment has been prescribed in the law for public officials who stand in violation of this right. In India deductions are made directly from the salaries of officials against whom a right to information complaint is proven and Pakistan could also prescribe a similar punishment.

4. It was suggested that independent information commissions be set up at the federal and provincial levels as appellate bodies for RTI related complaints.

5. Fines such as the 10, 000 Rupee fine stipulated in Sindh's Right to Information Act-2006 for mal-complaints must be removed so that citizens are encouraged to exercise their constitutional right.

Recommendations:

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6. Rules and regulations regarding the determination of information as Secret or Classified must be revisited and the process for such classification be standardized. The application of a harm-test was suggested by some participants at the consultation, whereby officials judge whether the benefit of revealing a piece of information is greater or the perceived harm.

7. Improvement of record keeping practices with computerization of records and the development of system which uses the cell-phone to register Right to Information complaints can be adopted to streamline the process of information dissemination.

8. Budgetary allocations for the operationalization of the RTI will be money well spent as it will save money in the future by holding officials accountable.

9. Efforts should be made for the education of the citizenry with regards to their fundamental rights and processes through which these can be achieved. They should be made aware of their right to information and how to use it. The media must play its role in organizing workshops for journalists and highlight the importance of transparency in the achievement of good governance for the general public.

10. Ensuring RTI in local government laws.

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Strengthening Participatory Federalism and Decentralization

Centre for Civic Education in Pakistan (CCEP), as part of UNDP's project “Strengthening Participatory Federalism and Decentralization” is working towards generating knowledge products and to arrange learning events about Pakistani federalism through dialogues, research and training.

Contact information

1.Strengthening Participatory Federalism and DecentralizationDemocratic Governance Unit, UNDP – Pakistan.

4th Floor, Serena Business ComplexIslamabad

Web: http//www.undp.org.pk

2. Centre for Civic Education PakistanG.P.O Box: 1123

IslamabadWeb: www.civiceducation.org