Free Right To Information

Free Right To Information

The Constitution of Islamic Republic of Pakistan 1973 enshrines, among other provisions, a free right to information, which in essence is not that free since it is subject to all those ‘reasonable’ restrictions which could be imposed by any other law. Historically, Article 19-A was made a part of the Constitution through the infamous Constitution (Eighteenth Amendment) Act 2010, which had remained under challenge till 2015, when through the landmark judgment of the august Supreme Court of Pakistan, along with the 21st Constitutional Amendment, it paved its way into the Constitution. With regards to this free right to information, the scheme of Constitution as well as the law itself needs to be understood.

Perusal of Article 19-A of the Constitution reveals that the right preserved in it is a positive right, and is not an absolute right, making it a guarantee on behalf of the state but subject to all those reasonable restrictions which could be imposed in the interests of the state. Article 19-A is very clear in its text about granting of the said right as it promises all citizens the “right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law”.

Before the pursuance of Article 19-A of the Constitution, in the dictatorial regime of former president and Chief of Army Staff, Pervez Musharraf, a statute namely Freedom of Information Ordinance 2002 was promulgated, which was protected under Article 270AA of the Constitution, and had been in place for the provision of any information in relation to all departments falling under the federal government. Similarly, the provincial government of Punjab has also enacted a law called the Punjab Transparency and Right to Information Act 2013. Other provinces have also legislated individual laws pertaining to the access of information for institutions falling under their respective provincial governments.

After promulgation of the Eighteenth Amendment and inclusion of the said fundamental right into the Constitution, the superior courts of the country have given the provisions of Article 19-A as well as the provisions of Ordinance a comparatively liberal interpretation, ensuring the right more advantageous in favor of the citizens.

In this regard, it is pertinent to mention a very recent landmark judgment passed by his lordship Mr. Justice Shams Mehmood Mirza in the case titled Waheed Shahzad Butt v. Federation of Pakistan, etc. (reported as PLD 2016 Lahore 872) in relation to the Ordinance discussing in detail the very contours of the Ordinance as well as its principles and implications. A deep reading of the said precedent carves out its principles while the honorable court has interpreted the Ordinance, in pursuance of Section 3 thereof, in a way that it holds the free provision of information to be the very object of the Ordinance, which is intended to be fulfilled by the legislature, and therefore requires the law to be construed in a very liberal manner. Hence, it is to be assumed that with regard to any information required under this Ordinance, the superior courts are more inclined towards the provision of information instead of its exclusion, if the information is not causing detrimental consequences to governmental interests, as provided in the Ordinance.

Even otherwise, it is also important to bring to attention the decision laid down in the famous case titled Watan Party and others v. Federation of Pakistan and others (reported as PLD 2012 SC 292) wherein his lordship Justice Jawad S. Khawaja, while delving upon contours of the provisions of the Ordinance, and those of Article 19-A of the Constitution, observed that Article 19-A was an affirmative right in contrast to the Section 3 of the Ordinance which was a negative right. As per his dictum, the fundamental right under Article 19-A, was more expansive and assertive, and therefore could not be restricted by any of the provisions of a statute passed in pursuance of the Constitution. This again brings us to the point that the provision of information, even under Article 19-A of the Constitution, is a right more inclined towards the inquirer.

In essence, this constitutional right to information, along with related statues, has put federal and provincial agencies, governmental departments and parliamentarians under a microscope, which should be used as a prism by the public at large for making certain decisions, including the electing of individuals, etc. Through these rights a positive platform has been granted to us, the general public, to assess governments in pursuance of what we are – free beings.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Haseeb Ahsan Javed

The writer is a lawyer based in Lahore. He has a degree in Law from Lahore University of Management Sciences. He can be reached at haseeb@hajlaw.com.pk or Twitter: @haseebajaved



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