A comparative analysis of the RTI laws in the four provinces and the federal territory leads to the conclusion that while they look good on paper, a lot needs to be done on ground
Twenty years after the promulgation of the first Freedom of Information (FOI) Ordinance in 1997, the Pakistani right to information (RTI) scene looks dynamic. The country has made significant progress in terms of legislation on access to information during the past twenty years. The inclusion of Article 19A (Right to Information) in the constitution is one of the major developments. Resultantly, we have started moving from first generation FOI laws to second generation RTI laws.
At the moment, these RTI laws are in force in Khyber Pakhtunkhwa, Punjab and Sindh, as well as at the federal level. However, Balochistan still lives with the old FOI law which was enacted in 2005.
The fact of the matter is that all ‘good’ that has happened with regards to citizens access to information has happened only on paper. A lot is needed on the ground.
While these second-generation RTI laws are similar in several respects, those being applied in the provinces do differ from each other. These similarities and differences are found both in the substance of the laws as well as in their administrative side. The laws have several operational challenges like non-existence of information commissions, non-allocation of budgets and absence of required staff to run their days to day business. Apart from that the bureaucratic mindset and traditional culture of secrecy among public officials is a serious external challenge in the way of effective and meaningful implementation of these laws. Here is a quick comparison of RTI laws to see how each one is helpful to information seekers, both in terms of substance and implementation.
Defining public bodies and public information
What is ‘public information’? Defining ‘public bodies’ and ‘public information’ is the first step towards access to information. We first need to take a look at the list of organisations which receive public money or perform public functions, for those are the ones that are meant to fall under the RTI law. In this respect, definition of ‘public body’ in the federal RTI law looks quite wide. Besides covering all public-sector organisations including ministries, divisions, attached departments, Senate and National Assembly, statutory bodies, courts, tribunals, etc., it ironically covers even ‘registered’ non-governmental organisations, which neither receive any public fund nor undertake any specific public function. However, provincial RTI laws are extended only to those NGOs which receive ‘substantial public funds’ or perform a specific public function.
Our provincial laws define ‘public information’ as all information held by public bodies, except the one explicitly exempted by the law itself. However, the federal RTI law defines ‘public record’ only as a limited list of information held by public bodies. Rest of the information of the ‘public body’ shall remain beyond public access. In this aspect, the federal RTI law is a copy of the old, inadequate and toothless FOI Ordinance of 2002, hence limited in scope and application.
Proactive Information Disclosure
One of the best aspects of these second-generation RTI laws is the concept of ‘proactive disclosure of information’. These laws require public bodies to proactively disclose certain information to the public via the internet or other platforms to ‘best ensure accessibility for the public.’ This includes proactive disclosure of information about the structure of an organisation, its functions, the different categories of information held by the body, policies, guidelines, duties, powers, rules, regulations, orders, notification, description of decision-making processes, budget, subsidies, concession and permits granted, and facilities for public’s access to information. It also includes the names, designations and particulars of public information officers. However, a research conducted in 2015 by the Digital Rights Foundation concludes that not more than 25 per cent of public bodies have put out any of this information proactively.
Another significant aspect which makes the RTI laws different from the old FOI laws is the establishment of ‘information commissions.’ The purpose of these commissions is to facilitate the public’s access to information and to provide dedicated mechanisms for effective implementation of the law. Each commission consists of three members; one advocate of High Court or Supreme Court qualified to be a judge of the High Court, one civil society representative having a minimum of fifteen years of relevant experience and one retired senior public official (of grade-22 or equivalent in case of federal law, grade-20 in Khyber Pakhtunkhwa, grade-21 or equivalent in Punjab and grade-20 in Sindh).
At the federal level the prime minister has the sole authority to appoint members of the ‘Pakistan Commission on Access to Information’ for a single term of four years. However, under provincial RTI laws, the collective wisdom of the provincial governments consisting of the CM and the cabinet decides about the members of their respective information commissions for a single term of three years.
Application process — duration and costs
All four provincial RTI laws permit all Pakistani citizens, irrespective of their province of domicile to apply for information. However, there are slight differences in the application disposal process. The Khyber Pakhtunkhwa and federal law stipulate 10 days for provision of information; Punjab RTI law provides 14 days; and Sindh RTI law gives 15 days for disposal of information request. The Khyber Pakhtunkhwa and federal laws are silent in this regard. However, if it is a matter of life and liberty of human beings, public bodies are bound to provide information within two working days in case of provincial laws, and within three days in case of federal law.
Moreover, there is no fee for making request for information under any of these laws. However, you may be charged the cost of making. In Punjab and Sindh, a public body can charge actual cost of copies from the applicant. However, in Khyber Pakhtunkhwa, a public body can charge actual cost only if the number of copies exceed 20 pages.
Hurdles and barriers
It is worth mentioning that local and international RTI experts and activists have welcomed these second-generation RTI laws in the country. The Centre for Law and Democracy (CLD), an internationally renowned organisation working on the right to information, has ranked all provincial RTI laws quite highly. But it is pertinent to share that CLD and other experts have expressed their concerns over the limitations of the federal law. However, despite limitations, the picture of RTI regimes in the country appears quite colourful on paper. In reality, the situation is quite different. With the exception of Khyber Pakhtunkhwa’s Right to Information Commission, there is virtually no institutional access to information mechanism present at any level.
This reality check is evident from the fact that the Punjab Information Commission has been dysfunctional since March 2017 when two of its commissioners completed their term. The third commissioner, upon completion of his term, left in April 2017. Besides, the stories of difficulties faced by the previous commission at the hands of bureaucracy and establishment are quite disturbing. The commission worked without a dedicated office space for more than a year. Even after the allocation of budget and office space, the commission struggled in getting required human resources during its entire tenure.
The Sindh Transparency and Right to Information Act, 2016, which started functioning on April 12, 2017, requires the establishment of the information commission within one hundred days of enactment of the law. However, on ground, nothing seems to be happening. This is also true for the federal Right to Access to Information Act 2017, which came into effect in October 2017.
The fact of the matter is that all ‘good’ that has happened with regards to citizens access to information has happened only on paper. A lot is needed on the ground. Because there is no utility of these laws unless the governments establish RTI Commissions as implementation mechanisms. Otherwise, citizens’ dream to have access to information will remain a dream even after twenty years.
By: Muhammad Aftab Alam
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