“What previously may have been on a need-to-know basis, Article 19A of the Constitution has transformed it to a right-to-know. The burden has shifted from those seeking information to those who want to conceal it. Access to information is no longer a discretion granted through occasional benevolence, but is now a fundamental right available with every Pakistani which right may be invoked under Article 19A of the Constitution.” — Chief Justice of Pakistan Qazi Faez Isa

In a landmark judgment that may well redefine the contours of transparency in Pakistan, the Supreme Court’s verdict on Monday in the Mukhtar Ahmad Ali case not only upholds the people’s right to access information but also brings institutions, once considered impervious to scrutiny, within the fold of accountability.

The verdict also arrives at a time when Pakistan is engaged in a historic struggle for transparency within the judiciary, military, and the realm of public finances. Moreover, it sends a clear message that the fundamental right to access information applies to all, transcending historical barriers that had protected select institutions from public scrutiny.

The battle for transparency

Pakistan has grappled with the challenge of making historically immune institutions more accountable. The judiciary and the military, often referred to as “holy cows”, have faced limited scrutiny over the years. The military’s financial matters have been a contentious issue, characterised by a lack of transparency. Recent demands for increased transparency within the “holy-cows” are gaining momentum, marking a significant shift.

The Mukhtar Ahmad Ali case revolves around a citizen’s request for specific information from the Supreme Court, invoking Article 19A of the Constitution and the Right of Access to Information (RTI) Act, 2017. The requested information includes details on staff strength, vacancies, temporary employees, new positions, gender diversity in the workforce, and the latest approved Service Rules of the Supreme Court. This request has ignited a broader debate on transparency and accountability.

In a groundbreaking decision, CJP Isa, writing on behalf of the court, elaborated on the transformative potential of Article 19A. The judgment reiterates that the right to access information is not confined to specific institutions but extends to all public organisations, including the esteemed judiciary. This ruling effectively dismantles the historical barriers that had shielded certain institutions from public scrutiny and signifies a pivotal shift toward transparency in a nation where powerful entities have long operated in secrecy.

CJP Isa noted, however, that the RTI Act was not applicable on the apex court.

Justice Athar Minallah, who was also part of the bench, authored an additional note in support of the main judgment, stating: “I see no reason for not agreeing with or endorsing [Isa’s] articulate interpretation of the law and the Constitution.”

Contrary to CJP Isa, however, Justice Minallah held that the RTI Act was also applicable to the SC. “A plain reading of the [RTI Act] shows, prima facie, that the Supreme Court has not been expressly excluded from the definition of ‘public bodies’,” he observed. Thus, Justice Minallah only agreed with the outcome, but not with the reasoning of CJP Isa, despite the former reiterating that he agreed with “the interpretation of law and the conclusion recorded by my learned brother, Qazi Faez Isa, CJ, in his judgment.”

The role of Parliament

The apex court’s decision rests on the interpretation that the Right of Access to Information Act applies to public bodies as defined in the Act, and that this definition does not include the Supreme Court.

Although the Act is applicable to “court, tribunal, commission, or board under federal law,” the Supreme Court, being established under the Constitution, is not categorised as a public body of the federal government. Thus, the Act was deemed inapplicable to the Supreme Court.

However, this judgment does not close the door to Parliament’s right to legislate for ensuring access to information concerning the SC; rather, it leaves the door open for potential legislative amendments. The Parliament retains the power to amend the RTI law, potentially including the Supreme Court within the definition of public bodies. This would ensure that the court, as an integral part of Pakistan’s democratic system, adheres to the principles of transparency and accountability. While the judgment may appear limited in scope, it carries the promise of a more transparent and accountable judiciary in the future.

Need for an appeals mechanism

One significant shortcoming in the judgment is the absence of an appeals mechanism in cases where the Supreme Court refuses to provide information under Article 19A. To address this, one approach could involve amending the Supreme Court Rules, 1980, to incorporate a dedicated section on RTI. This section should outline the process for citizens to obtain information and establish a robust appeals mechanism for instances where the apex court refuses access to information.

Furthermore, to ensure consistency in transparency standards, the same criteria and limitations applied in this judgment should extend to Pakistan’s high courts and the Federal Shariat Court. This alignment in transparency principles will contribute to a more unified and accessible judicial system.

Moreover, the quest for transparency within Pakistan’s judiciary does not conclude with the Mukhtar Ahmad Ali case. It must now turn toward the Supreme Judicial Council (SJC) — an entity that has faced calls for more transparency for years in terms of its proceedings and access to information about the number of pending complaints. Effective accountability in the higher judiciary, represented by the SJC, is fundamental to strengthening public trust in the entire judicial system.

Proactive disclosure

The spirit of the RTI law stresses the importance of proactive disclosure of information. Citizens should not have to struggle for years to obtain information about public affairs and institutions, Justice Minallah noted. Proactive disclosure of information on the Supreme Court’s website is a crucial step toward ensuring transparency. This includes information about the tax records of Supreme Court judges, properties owned by them, their spouses, and children, particularly the number of plots and other perks provided by the state.

There are good reasons to be hopeful that the SC will apply the standards of transparency in this case to the other aspects of the court. The recent issue of granting plots to judges and interest-free loans to judges of the Lahore High Court has fuelled concerns. CJP Isa, a vocal proponent of transparency, has taken a firm stance against these practices.

The judgment in the Mukhtar Ahmad Ali case is a milestone in Pakistan’s journey toward transparency and accountability. It underscores that the right to access information applies to all institutions, breaking down historical barriers that safeguarded select entities from public scrutiny.

The path to a more transparent Pakistan is illuminated by judgments such as this, promising a future in which the nation’s affairs are open to scrutiny, and public trust is fortified. It is a clarion call for openness and accountability in a country striving to uphold democratic values and principles.