Tale of two bills
ALTHOUGH citizens are constitutionally guaranteed access to information held by the government in matters of public importance, it seems that the centre, in cahoots with the bureaucracy, seeks to ensure through legislation that people remain clueless about critical information.
The Right of Access to Information (RAI) and the Right to Information (RTI) bills, approved by the federal cabinet and Senate respectively, provide interesting insights into how Pakistan’s legislation is carried out. A comparative analysis shows how the Senate’s bill, developed by politicians in consultation with experts, is far better than the cabinet’s bill, developed in consultation with the federal bureaucracy.
Sharing as much information in the public’s interest as possible and protecting sensitive information from disclosure are not mutually exclusive.
One bill upholds the right to know; the other to suppress it.
However, the RAI bill sacrifices principles of public interest in favour of perceived notions about national interest. Ironically, the bill is modelled on the structurally flawed and ineffective Freedom of Information Ordinance, 2002, which it seeks to repeal.
In fact, the bill is so flawed that it is better understood as legislation seeking to privilege and protect information rather than to facilitate citizens accessing it. Whereas the RTI bill contains one clearly defined short list of exempted information and declares the rest as public information, the RAI bill contains three lists.
The first list contains a limited number of records to be shared and the second contains records given blanket exemption from disclosure. The third list contains exceptions under which public bodies could deny access to requested data.
A key principle of effective right to information legislation is that information should be shared if its disclosure outweighs possible harm. For this, effective laws empower commissions to apply ‘harm tests’ and see the exempted information through the prism of public interest.
The RAI bill, however, empowers the government to give blanket exemptions to any record it deems unfit for disclosure. In contrast, the proposed Pakistan Information Commission is not empowered to instruct public agencies to disclose information to the public. In this scheme of things, the likely harm to national interest, as perceived by public officials, will always trump the right of citizens to access information of public importance.
It goes to the credit of members of the Senate Standing Committee on Information and Broadcasting that they not only developed comprehensive legislation through public consultation but were also able to reach political consensus on the unanimously approved RTI bill. Meanwhile, the government entrusted the task of preparing the draft RAI bill to the bureaucracy and, as a result, there was no public consultation on an issue as important as this.
Furthermore, there is no longer political consensus on this issue; Senator Farhatullah Babar has said that the RAI bill will be opposed in the Senate. It is unfortunate that the federal government has decided to sacrifice political consensus on RTI legislation at the altar of the whims and wishes of federal bureaucracy.
In his judgement on ‘memogate’, then Justice Jawwad S. Khawaja wrote: “Major events in our history in the past six decades since 1947 have included the dismemberment of the country in 1971 and the murder of one incumbent and one former prime minister of Pakistan. We have witnessed the extraordinary case of those in the seats of governance in December 1971 informing us that all was going well in East Pakistan even after the surrender of forces in Dhaka.
“The results of probes into such events have almost invariably been withheld from the people of Pakistan or, at times, selectively disclosed. The people in quest of the truth have mostly been left with conjectures, rumours and half truths. Concealment of information has, in turn, led to a distorted history of the country and to a destabilising division in the polity.”
If the RTI bill is enacted into law, it will represent a paradigm shift — Pakistan’s citizens will finally be able to access information of public importance hitherto denied to them.
On the other hand, if the RAI bill gets through both houses of parliament, things will remain the same and citizens will have to stay contented with conjectures and half-truths.
If the federal government is at all serious about facilitating its citizens’ right to access information, it ought to adopt the Senate’s RTI bill.
The will of the people is manifested in legislation through laws enacted by their elected representatives and not by laws drafted by bureaucrats.
The writer is a rights activist.
Twitter: @XahidAbdullah
Published in Dawn, October 28th, 2016