Right to Information and freedom of speech

As the world celebrates the 14^th International Right to Know day today, it is appropriate to discuss the role of legislation, political parties, regulatory bodies and international best practices in protecting the right to information, freedom of expression and other human rights both off-line and in digital spaces. The significance of correlation between the right to information and freedom of expression in protecting and promoting basic human rights can hardly be exaggerated. It is said that freedom of expression is meaningless without right to information, which is a ‘touchstone of all freedoms’. Not only right to information and freedom of expression complement each other, the rendition of human rights also depends on our ability to exercise these rights.

A free media, being champion of freedom of expression and a source of facilitating access to information to citizens, has a huge part to play in this. However, proliferation of electronic media in the country in the last decade and a half is often confused with free media. The electronic media is free as long as it serves as a tool for obfuscation on the behalf of the vested interests at the expense of citizens’ rights. It is pertinent to mention that there cannot be informed debate on national issues when citizens and journalists do not have access to certified information, held by government departments on the topics and time of their own choosing.

Notwithstanding the fact that both freedom of expression and right to information are accorded constitutional protection through Article 19 and Article 19-A respectively, politicians have lot to answer for with regard to their failure in enacting enabling legislation and putting in place effective mechanisms so that citizens could exercise these rights in a meaningful manner. We are now into the 9^th year of combined democratic rule of both the PPP and the PMLN at the federal level. However, despite the public pledges of the senior leadership of both parties, the excuse of a right to information law in the shape of Freedom of Information Ordinance 2002 is still in the field and has not been replaced with an effective law.

While the 18^th Constitutional Amendment was highly trumpeted as a game changer in devolving the centralised authority of the centre to the provinces, little has been done by the provinces so far in this regard. Except that the PTI, which came into power in Khyber-Pakhtunkhwa on the slogan of governance reforms, enacted on October 31, 2013 one of the highly rated and effective law for the province in the shape of K-Pakhtunkhwa Right to Information Act 2013. The PMLN government in Punjab, which did not legislate on this issue in its previous tenure, had no option but to follow suit and enacted a law on December 16, 2013 in the shape of the Punjab Transparency and Right to Information Act 2013. However, Balochistan and Sindh are still living with replicas of the federal FOI law in the shape of the Sindh Balochistan Freedom of Information Act 2005 and the Sindh Freedom of Information Act 2006 and have yet to replace them with effective right to information laws.

However, ever since its enactment, the Punjab bureaucracy is trying to unwring the bell and has mounted, in the words of Punjab Information Commissioner Mukhtar Ahmed Ali ‘organised resistance’ to the implementation of the Punjab Transparency and Right to Information Act 2013. For the last two and a half years, ever since the Punjab Information Commission was established, Punjab government has neither provided staff to the commission nor approved its service rules so that it could recruit staff on its own. As a result, the budget earmarked for the staff of Punjab Information Commission lapses each year and the members of Punjab Information Commission are forced to take help from different civil society groups to carry out day-to-day functions. In flagrant disregard of Section 4 of the Punjab Transparency and Right to Information Act 2013, the Information Department, which is supposed to provide information, has just a web page on the Punjab government portal and has not developed its website. If this be the state of affairs at the Information Department, one can well imagine how other Punjab government departments are ensuring proactive disclosure of categories of information as required by section 4 of the Punjab Transparency and Right to Information Act 2013.

The situation in K-P is also not very promising where the ruling party itself tried to water down the law through amendments in 2015. Nevertheless, after hue and cry of civil society groups, the government was forced to reverse the amendments. The higher judiciary of the province, on the other hand, is still exempted from the Khyber-Pakhtunkhwa Right to Information Act 2013. Moreover, vagueness about right to appeal against the decision of the Information Commission is proving to be a legal lacuna. Furthermore, the K-P Information Commission is currently operating as a headless body after completion of tenure of its first chief information commissioner.

At the federal level, since 2010, citizens have been told time and again, that the standing committee of the Senate is working on preparation of the draft of a right to information act. In 2015, the draft was made public and various local and international organisations ranked the draft among ‘the best drafts’ on right to information. However, in January 2016, the PML-N government announced that it would ‘further review’ the draft bill in the name of ‘changing security situation’. This was an intriguing development as there are adequate safeguards in draft right to information bill 2015 to protect sensitive information from disclosure. As things stand at the moment, the draft bill has been on the agenda of at least last three meetings of the federal cabinet but could not be taken up for discussion. No one among the cabinet pushed for this bill as compared to other bills such as the Prevention of Electronic Crime Act (PECA) 2016.

The PECA is quite a paradox in the discourse of right to information and freedom of expression. A lot has been written about its repercussions on citizens’ right to know and their free expression in the cyberspace. Instead of ensuring transparency and openness as hallmarks of citizens’ right to information as enshrined in the Article 19 A of the Constitution and manifesto of the PML-N, sections 3, 4 and 5 of the PECA criminalise access to information of public interest through ‘sources.’ Whistle blowing is declared a crime and may be treated as ‘cyber terrorism’ under this law. To defeat the principle of ‘proactive disclosure’ the government can make any information available on any online platform out of bound to citizens through declaring the platform ‘critical infrastructure’. The Pakistan Telecom Authority (PTA), under section 34 of the PECA, has authority to remove or block any information, which may otherwise be useful for citizens, from any online platform on very subjective grounds. The vires of the law have been challenged in the Lahore High Court and hopes are alive to get it declared ultra vires to the constitution and to fundamental rights.

In this backdrop, the situation cannot be termed ideal. Political parties, legislators and regulatory bodies are failing to fulfil their commitments. No wonder, citizens are left at the mercy of the stuff churned out by rumour mills, Panama Leaks, WikiLeaks or those leaks that the governments find aligned in their own interests.

Published in The Express Tribune, September 28^th, 2016.

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