September 28 marks the International Right to Information Day. The free flow of information is an integral facet of a democratic society as it allows for an informed citizenry with the capacity to effectively monitor the introduction and implementation of legislation; providing checks and balances against corruption, and the misuse and abuse of statutory and administrative power. Today, more than 100 countries have right to information laws and most of them have dedicated institutions to promote their effective implementation.
In Pakistan, the first-ever freedom of information law was introduced in the form of the Freedom of Information Ordinance 2002 which applies to all federal bodies. Following the passage of the 18th Amendment, Article 19-A was inserted into the Constitution in 2010. Article 19-A stipulates: every citizen has “the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.” At the provincial level, the Punjab Transparency and Right to Information Act 2013 and the Khyber Pakhtunkhwa Right to Information Act 2013 are in place to guarantee the right to information, and information commissions have been established in both provinces.
This year has seen the introduction of notable RTI legislation in Pakistan. The Sindh Transparency and Right to Information Bill 2016 was passed by the Sindh Assembly in March this year, though the Government has yet to take measures to implement the law and establish the information commission within the 100 stipulated days. At the federal level, the Right of Access to Information Bill 2017 has been unanimously passed by the Senate in August, though it is yet to be passed by the National Assembly.
Bolo Bhi’s Experience with the Freedom of Information Ordinance 2002
Submission of FOI requests: In February 2014, Bolo Bhi submitted FOI requests to the Ministry of Information Technology and Telecom (MoITT), the Pakistan Telecommunication Authority (PTA) and Pakistan Telecommunications Company Limited (PTCL). These requests pertained to censorship, filtering and surveillance carried out by the government through these entities. Specifically, the requests asked for a list of blocked websites, the constituting documents of the Inter-Ministerial Committee for the Evaluation of Websites (IMCEW), and verification of the presence and use of Netsweeper (a web filtering software) and FinFisher (a web surveillance software).
Appeal to the Ombudsperson upon non-disclosure of information by authorities: Though the information was initially held back, the grievance redressal mechanism for the unlawful denial of information proved instrumental in efforts to hold regulatory bodies accountable. In due course, the Federal Ombudsperson’s office responded to non-compliance complaints by Bolo Bhi and issued notices to the concerned bodies upon their failure to meet the 21 day deadline under the FOI 2002 Ordinance. After the stipulated 60 days, the Ombudsman proceeded to call representatives of the MoIT, the PTA, and the PTCL to hearings with Bolo Bhi representatives.
During these hearings with the Ombudsperson, Bolo Bhi was able to attain critical information such as the constituting documents for the Inter-Ministerial Committee for the Evaluation of Websites (IMCEW) as well as the MoIT policy directive for blocking websites. Though the procedures instituted by the ordinance prove to be cumbersome, Bolo Bhi’s engagement with the law is demonstrative of the way it can serve as a powerful and effective tool to obtain information about the way the government functions and to hold it accountable.
Bolo Bhi challenged the MoITT’s non disclosure clause by submitting to the Ombudsperson’s office a legal interpretation of section 8 of the FOI ordinance with respect to the non-provision of information i.e. in order for public record to fall within the exclusions stipulated in Section 8 of the FOI Ordinance, it must be declared as classified by the competent authority under the ordinance read together with the rules of business. This petition proved to improve accountability in the long run, as it was determined that the MoIT does not have the authority to declare information ‘classified’.
Challenging the IMCEW in Islamabad High Court on the basis of information acquired through FOI requests:
It was also on the basis of acquired information that Bolo Bhi was able to file a petition before the Islamabad High Court (IHC) challenging the legality and constitutionality of the IMCEW. Bolo Bhi was able to obtain stay orders against the IMCEW and PTA, barring them from issuing takedown directives. Further, the court sought a response from the Ministry and the PTA as to the laws, if any, they derived the powers to block content. This inquiry revealed that the IMCEW was merely a recommendatory body whose purview did not extend beyond blasphemous or pornographic content, and that its powers were not vested in any law. While the case was still pending in court, on March 13, 2015, the Prime Minister disbanded the IMCEW with immediate effect and the announcement that the PTA would be responsible for content management.
The petition also challenged the authority of the MoITT to regulate online content, on the basis of a violation of Article 19 and Article 19-A of the constitution that guarantee the right to freedom of speech and the right to information respectively. The court subsequently declared that the MoIT had no legal authority to block websites and assume the role of a regulator.
Before the case reached its conclusion, the government introduced the Prevention of Electronic Crimes Bill in 2015, according broad content management powers to the PTA. After a year-and-a-half long struggle to have amendments made to it, the Prevention of Electronic Crimes Act (PECA) 2016 became law in August 2016, presenting a serious threat to the right to speech, information and privacy by giving the Pakistan Telecommunications Authority (PTA) unrestricted powers to impose bans, block, and remove content at its discretion based on broad definitions.
While the debate over national security continues and the state, policymakers and the civil society continue to determine how to balance the concerns of the public and the executive, there is a need for increased pressure towards a system that minimises the discretion of officials and establishes clearly aligned sets of rules governing the disclosure and protection of information. The first step is perhaps the recognition of the importance of transparency and accountability to the establishment of effective participatory democracy.
Bolo Bhi is currently making efforts to gauge academic freedom and censorship of the internet at university campuses by investigating laws and directives, if any, issued by the Higher Education Commission (HEC) and the Pakistan Telecommunications Authority (PTA). Such an inquiry could prove instrumental in preserving academic institutions as spaces that are open and conducive to learning rather than restricting information.
In Pakistan, there is still a need for greater awareness amongst individuals and organizations regarding the existence of FOI and RTI legislation, as well as the procedures under them. The under-utilization and lack of requests under existing laws is often pointed out with regret by right to information advocates. Equally necessary is the need for the introduction of an improved Right to Information legislation at the federal level.
Although the Right of Access to Information Bill 2017 that has recently been passed by the Senate is a marked improvement compared to the 2002 ordinance, aligning more closely with internationally recognized principles of maximum disclosure, minimum exemptions and the right to appeal, it still institutes critical hurdles to the access to information. Structural flaws such as discretion given to Ministers to deny the disclosure of information as well as indemnity given to the Principal Officer or designated officials for anything done in “good faith” need to be reformed.
International experience indicates a strong link between effective RTI laws and good governance. Although Pakistan has been making significant progress with regards to establishing RTI legislation, the actualization of the right to information enshrined in the constitution requires a concerted effort to strengthen the laws and their implementation, ensuring separate but effective information commissions for the center and provinces, as well as conducting a nationwide RTI awareness program to train and motivate citizens to exercise their right to information.
Animated video on International RTI day collaboration of Shehri Pakistan and Bolo Bhi:
Click on the following links for resources on RTI: