Democracy and accountability are sine qua non for each other. Foremost pre-requisite for a functional accountability mechanism is access to information. In Article 19-A of Constitution of the Islamic Republic of Pakistan, 1973 the Constitution recognises right to information as a fundamental human right. To translate constitutional law into reality, Government of Punjab enacted the Transparency and Right to Information Act 2013, Punjab. The ‘Right’ includes obtaining of information ‘accessible’ under the Act and to inspect, take notes, obtain certified or electronic copy of such documents. Public bodies are obligated to ‘proactively’ disclose information regarding their functions, decision making processes, budget, subsidies, etc.
It is a positive legal enactment, which provides institutionalised mechanism to ensure availability and flow of information by Public bodies. Basic features of the Act disclose a formal structure for accessibility of information and remedies for refusal to give access as given under the Law. The Information Commission, as formulated upon promulgation of the Act, is empowered to conduct enquiry suo moto or upon complaint by an applicant regarding non-disclosure of information by a Public Body inter alia. Designated Public Information Officers (PIO) are held responsible for non-disclosure or flawed disclosures and will be penalised with fine not exceeding two days’ salary for each day of delay or fine up to fifty thousand rupees. Scope of commission of ‘offence’ is not limited to acts of omission of PIOs rather it extends to include ‘any person’, who destroys record requested for disclosure and makes such offence punishable with imprisonment for a term extendable up to two years and fine not less than 10 thousand rupees or both. Legal cover is provided in form of indemnity, against civil suit, prosecution or legal proceedings, to persons who act in good faith under the Act. Section 17 ousts the jurisdiction of Courts except with the sanction or authorisation of the Commission, which renders the Commission as the final authority for determining matters of disclosure. Moreover, Section 18 explicitly bars admission of suits, applications etc by courts against any decision made under the Act. Section 12 provides for ‘internal review’ mechanism for challenging the decision of refusal to provide information under Section 10 (8) as enjoined upon the PIO. The Officer dealing with such review application may confirm, modify or reverse the decision and may order departmental action against the concerned PIO in line with Section 12(3) of the Act.
Thus, applicants may request the head of relevant public body for internal review, wherein the PIO had not given requested information, or may file a complaint with the Information Commission to redress their grievance against PIO of a public body. A system of checks and balances has been introduced through internal review by the public body or complaint to the Commission. However, it is an intra public body system of accountability viz. there is no cross institutional check and balance. The Commission is the sole forum available to the applicant for filing complaints against non-disclosure inter alia. The jurisdiction of Courts is explicitly barred by the Act and it takes precedence over other laws vide Section 24.
The right to information however is not unlimited and the Commission is empowered to determine ‘public interest’, which provides for ‘refusal’ to disclose information under certain exceptional circumstances. The requested information may not be provided, where it is likely to harm national security, public order, international relations of Pakistan, legitimate commercial interests of the public body, life, health or safety of persons, ability of the government to manage economy or hinders the government in formulation or achieving success of a policy due to premature disclosure or likely to place restraint on free provision of advice within the government. Grounds for refusal to provide information are wide and an arbitrary exercise of jurisdiction or misuse of powers at any level by concerned officers under exception clause may endanger the right to information granted to the applicant.
As already discussed, the definition of information under Section 2 (f) does not include ‘emails’ and merely mentions instruments prepared through electronic process, which does not necessarily extend its scope to include emails. The Act does not define ‘record’ to be maintained by a Public Body and merely mentions ‘maintenance and indexing of information’ under Section 8. Definition of record is essential to define the ‘information’ which such body is liable to maintain. Section 2 (j) (i) also does not include inspection of records in right to information. In comparison Section 2 (f) of the Indian Right to Information Act, 2005 provides an extensive definition of information including access to record and even emails.
The Act is also silent upon rights of another ‘public body’ to make request for inspection of documents under Sections 2 (a) and 10. The Public body is also not obligated to computerise its records unless directed by the Commission under Section 8 and non-compliance is also not subjected to prescribed procedural punishments.
The definition of ‘information’ under section 4 is to be read with the ‘exception’ clause under section 13, which can further limit its scope. Moreover, proactive disclosure under Section 4 is limited merely to information about role of the organisation/officers, budgetary expenditures, subsidies available or concessions granted. Section 4 is also silent on informing public about important policies or decisions that affect them along with administrative and quasi-judicial justifications for such decisions. In this regard, Section 13 (f) prohibits disclosure of policy to ensure its success notwithstanding the right to information under the Constitution and duty of government to elicit public opinion in decision making that affects public at large. It further allows disclosure to citizens of any decision making process or opportunity for public to give input or be consulted about the decisions. As mentioned it is a positive legal enactment and may evolve over time with change in the social culture that encourages secrecy. Another limitation in this regard is that the Act does also not provide for ‘severability’ of information, where a part of sensitive information can be severed and made accessible upon being declared neutral in nature. It is also silent upon removal or accountability of the Information Commissions, which is the only forum for complaints under the Act.
The Punjab Information Commission was established on March 5 2014 as a Special Institution however it started to formally operate from its office only in May 2015. Chief Information Commissioner and two Information Commissioners were appointed, who decided around 600 complaints out of 1200 under Section 6 of the Act. An analysis of the report discloses that although public bodies are obligated to appoint Public Information Officers for each administrative unit/office and to maintain information in an accessible form. However, around 1000 PIOs have been designated and many bodies have not appointed officers for each administrative unit, designated junior staff officials instead of officers or notified officers by name and not by post.
The PIOs are obligated to decide the application within time frame of 14 days, which can be extended to another fourteen days only. Public bodies have also failed to decide requests in 14 working days, which compels the applicant to file a complaint with the Commission. These bodies or designated officers do not finalise information requests unless an explanation is sought upon filing a complaint with the Commission. Many PIOs complained of lack of requisite infrastructure and staff to process requests and apprehended displeasure of seniors upon disclosure that might result in adverse ACRs or transfers.
The Commission may undertake a suo motu inquiry or pass directions for disclosure of information to an applicant in a proactive manner. It can impose penalty on PIOs for non-disclosure and on any person for record destruction inter alia. However frequent imposition can prove counter-productive and thus requires internal intervention to ensure timely disclosure. Culture of secrecy also taints the requests or directions for disclosure as undue interference or even blackmailing tactics instead of accountability mechanism for improved governance. Majority complaints were against non-responsive attitude of health and education departments and the client group largely included journalists or civil society and recently lawyers, retired government functionaries have also started filing complaints. The Commission also faces resistance or no response from bodies especially the DCOs and DPOs offices to decide the information requests and implementing orders of the Commission.
Regarding allocation of resources the situation is still dismal as gleaned through the annual report. Although, the Act provides for adequate resource allocation to the Commission and the government had approved 46 posts for the Commission, it is a dismal situation that merely a staff of 2 officers posted by Services and General Administration Department and 6 persons engaged on daily wages basis were at its strength at the end of June 2015. Public bodies also do not publicise the contact information of these officers and their websites do not adequately fulfill the requirements of disclosure under Section 4 or these are not tailored as per public information needs. Official records are also not maintained in an organised, systematic, secure and efficient manner rendering it highly difficult to fulfill obligation of easy retrieval and access and also response in stipulated time. There is an immediate requirement to allocate resources and evolve procedures for record maintenance and secure custody.
The Commission also trained around 354 PIOs through 2 days workshops and launched public awareness campaigns in May and June 2015 through print and electronic media as an initial step towards ending the perennial culture of secrecy. The training participation remained on an average of 22 instead of estimated 30 persons per training due to lack of interest by departments in sending the officers, which resulted in under utilisation of available facility. Most of PIOs have still not received training whereas it is also required for even senior officers responsible to implement the Act. The public awareness campaign could have produced broader results if it was executed by the Information and Culture Department and DGPR in line with the Commission’s plan.
It is expedient if applicants are given online facility to make applications with the Ministries or Departments to obtain information and be able to see status of their application online. Complaints against non-disclosure should also be allowed to be made online with Commissioner. A reference can be made to Sindh Provincial Ombudsman Office regarding Protection of Women against Harassment at Workplace, which provides for registration of online complaints.
The Right to Information Act, 2013 is a welcoming step in the right direction, which will help strengthen the democratic system. However transparency and accountability can merely be ensured through access to information. Despite having weaknesses and shortfalls the Act recognises the inevitability of planting the seeds for future. Democracy, Rule of Law, Equitable and Transparent Development are not practical without allowing information to the citizens, which is their fundamental human right in Pakistan. The Act is a step in the right direction and will gradually allow entrenchment of values including transparency and openness. It is hoped that such change will allow requisite evolution of the law through further amendments inter alia.
The Punjab Transparency and Right to Information Act, Section 2 (f)&(j).
 Ibid Section 4.
 Ibid Section 6.
 Ibid Section 15.
 Ibid Section 16.
 Ibid Section 23.
 Ibid Section 13.
 Punjab Information Commission, Annual Report 2014-15.
 http://www.sindh.gov.pk/dpt/PROVINCIAL-OMBUDSMAN/messageofombudsman.htm last visited on 18th April, 2016.