Malice Towards None & All: Lack of ‘Open Governance’ In Pakistan

Malice Towards None & All: Lack of ‘Open Governance’ In Pakistan
Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law”
— Article 19A, Constitution of Islamic Republic of Pakistan 1973.


What we lack most in Pakistan is open governance that is prerequisite for participatory democracy. This doctrine recognises the right of citizens to have access to the documents and proceedings of the government. The access to information empowers citizens to supervise the affairs of state, performance of the public functionaries and elected representatives. Since 2010, it is fundamental right under Article 19A of the 1973 Constitution of Islamic Republic of Pakistan [“the Constitution”], though its full enforcement, like other rights, remain unfulfilled.

In its broadest construction, the concept of ‘open governance’ opposes holding of information related to public affairs, especially spending of taxpayers’ money, using jargons like “national interest” and/or “state secrecy”. The origins of open government arguments date to the time of the European Enlightenment, to debates about the proper construction of nascent democratic society of that era. Among recent developments is the theory of open source governance, which advocates the application of the philosophies of the free software movement to democratic principles to enable interested citizens in getting more directly involved in the legislative process.

Since the fundamental right of access to information, guaranteed under Article 19A of the Constitution, has still not implemented in letter and spirit, the result is non-existence of accountable and responsible governance in the country. Unfortunately, whenever information is sought about the abuse of taxpayers’ money on unprecedented benefits, perquisites and protocol of the elites—militro-judicial-civil-hierarchy and rich politicians—it is denied on the one pretext or the other. Even, the High Courts have shown hesitation in enforcement of obtaining this important information. In other words, both Executive and Judiciary are denying inalienable fundamental right to the citizens of Pakistan. It must be reminded to all that use of public funds is a sacred trust and any breach is a serious and punishable crime. 

It is an unfortunate aspect of our history that since independence in 1947, the people suffered due to non-inclusive governance, where information critical to them was withheld. In critical times in history, the people in quest of the truth were mostly left with conjectures, rumours and half-truths. 

Concealment of information leads to a distorted history of the country and to a destabilising division in the polity—Pakistan is an apt example of it. The Legislature, by inserting Article 19A through Constitution (Eighteenth Amendment) Act, 2010 [commonly called “the 18th Amendment”], empowered the citizens of Pakistan by making access to information a justiciable right of the people rather than being largesse bestowed by the State at its whims.  

The laws, enacted by the Federal and Provincial Governments after the insertion of Article 19A in the Constitution, cannot deny fundamental right of obtaining information of public importance in the camouflage of ‘secrecy” or “security” paradigm unless it is so related. For example, asking about the amount expended on perquisites, protocol, entertainment and foreign tours etc by military, civil officials and public office holders by no means falls in the category of “secret” or “sensitive” information.

The principle of interpretation of statutes is well-established that the fundamental right under Article 19A is a grant of the Constitution and, therefore, cannot be altered or abridged by a law enacted by any Parliament—federal of provincial. The Supreme Court in Watan Party & Others v Federation of Pakistan & Other [PLD 2012 SC 292] held: “So long as Article 19A is part of the supreme law of the land, nobody, including the apex court, can deny to the citizens their guaranteed fundamental right. There should not be any attempt, to limit or trivialize the scope of such right through an elitist construction whereby information remains the preserve of those who exercise state power”.  

In financial matters, in this era of information technology all public spending should be available on websites of all the departments/agencies/bodies so that public can scrutinise it. It will enable experts to give their input that would certainly be useful for quality spending. Media will also be in a better position to present facts, rather than creating hypes on conjectures. This would be the true implementation of Article 19A of the Constitution as its scope covers voluntary sharing of information by public institutions. 

The Legislature deserves kudos for bestowing on the citizens an unbridled right of access to information. However, its implementation should be supervised and enforced through a Special House Committee in the federal and provincial parliaments and Senate of Pakistan. The exercise of constitutional right to access to information in all matters of public importance is necessary for transparency and accountability—essential elements of participatory democracy and responsible governance. 

At the heart of this constitutional provision is ensuring accountability of all. Logically, the right to information must start from those top echelons of state—the superior judiciary, military-civil-hierarchy and politicians. 

The starting point of implementation of Article 19A should be making public the declaration of assets, liabilities and taxes by judges and high-ranking civil and military officials. 

The civil society and media should come forward to force the Parliament to abolish all laws relating to secrecy and/or immunity and enact a comprehensive right to information legislation in the light of judgement of the Supreme Court in Watan Party & Others v Federation of Pakistan & Other [PLD 2012 SC 292] for compulsory disclosure of assets, liabilities, incomes, expenditure and taxes paid by judges, generals and high ranking government officials—such information cannot be obtained under existing law, Right of Access to Information Act, 2017 that repealed the Freedom of Information Ordinance, 2002, with effect from October 12, 2017.

The issue of asset disclosure by judges in India came in the limelight when a Right to Information (RTI) application was filed with the Supreme Court by Mr. Subhash Agarwal in order to know if judges of the High Courts and the Supreme Court were complying with the 1997 "Code of Conduct" adopted at the Chief Justices Conference requiring judges to disclose their assets in confidence to their Chief Justices. The public information officer of the Supreme Court, endorsed by the Chief Justice, claimed “no such information exists in the Supreme Court registry”. Later on, an appeal was submitted before the Central Information Commission (CIC) arguing that the Supreme Court was making a distinction between information with the Chief Justice’s office and that of the Supreme Court. The CIC, while rejecting this distinction, directed the public information officer of the Supreme Court to secure this information from the Chief Justice’s office and hand over the same to Subhash Agarwal, the RTI applicant. 

The Supreme Court challenged the order of CIC filing a writ petition in the Delhi High Court. The CIC merely directed release of the information about whether judges were disclosing their assets to the Chief Justice, but in the writ petition, the Supreme Court apprehended that the exercise might lead to paving the way for people to know about asset disclosures under the Right to Information Act. It was claimed that asset disclosures by judges was exempted under the said Act as data lay with the Chief Justice under a "fiduciary relationship". The second contention was that being "personal information”, it had no relationship with public domain. Chief Justice feared that public access of such declarations would amount to “an unwarranted invasion of the privacy" of his brother judges. Finally, it was argued that Chief Justice was not a "Public Authority", amenable to the Right to Information Act. 

The issue came in further limelight when the government introduced a bill in Parliament providing for asset disclosure of judges, but with a protection clause that the same would not be accessible to the people and that judges would not be made liable for any action on the basis of their disclosure. This led to a commotion in parliament—the Members of Parliament rising above party lines, vehemently and collectively condemned this clause, forcing the government to pull out the bill. 

In the wake of the debate in Indian Parliament and public campaign, a number of High Court judges made their assets public, dissociating themselves from the Chief Justice of India's stand that asset disclosure would lead to harassment of judges at the hands of disgruntled litigants. Eminent former judges and leading jurists joined the civil society—they openly demanded public declaration of assets by judges. 

The entire civil society and media, unanimously and vocally, opposed the stance of Chief Justice. Succumbing to opposition—both from inside and outside—the Chief Justice ultimately yielded and announced that the asset declarations of the judges would be placed at official website. Soon thereafter, twenty-one judges of the Supreme Court, including the then Chief Justice of India, K.G. Balakrishnan, declared their assets, giving details of movable and immovable properties owned by them and their spouses.

After championing the cause of people’s right to information in Watan Party & Others v Federation of Pakistan & Other [PLD 2012 SC 292], it was a legitimate expectation of the citizens that as a first step, the honourable judges of Supreme Court and High Courts of Pakistan, like their contemporaries in India, would make public their assets and tax declarations. However, it has not happen till today, except by one judge of Supreme Court.

Right to information of citizens about declaration of judges, though, assumed renewed importance in the wake of Supreme Court’s judgement in Watan Party & Others v Federation of Pakistan & Other [PLD 2012 SC 292] on Article 19A, remained unnoticed by all. Neither the judiciary voluntarily nor the civil society stressed for it. It is necessary that judges who adjudge other, including the elected members of parliaments (their declarations are made public under the law), must publically declare assets/liabilities/incomes/expenditure so they set an example for others and practically establish what ‘open governance’ really means and that nobody is above law.   

Way back in 1993, the UK government issued a white paper declaring that it was the government’s “commitment to make government in the United Kingdom more open and accountable.” Public interest is involved in both disclosure and confidentiality of information which needs to be subtly balanced by devising suitable policies and legislation. Countries like Sweden had introduced this right in the eighteenth century while in recent years, France, Canada, Australia, New Zealand and the USA have joined the rank. In India, Aruna Roy, a prominent founder and member of the movement Mazdoor Kisan Shakti Sangathan (MKSS), actively campaigned for right to information in India. The movement has been credited for getting Right to Information laws passed in several States, including the Rajasthan Right to Information Act passed in the year 2000. The RTI movement and campaign also played a crucial role in the passage of strong national legislation for the RTI in the year 2005. 

In an interview, Aruna Roy said, “The pity is that there is no accountability in the present system of governance. All human rights depend on the basic right to know, to demand accountability. In India, the feudal social fabric has exploited the formal democratic system to its advantage because the literate are too busy building careers and empires to bother about social inadequacies. That’s why RTI has a widespread appeal for everyone”. She added that “every citizen of the state has a fundamental right to say: You are spending my money. Render me the accounts. But most people are unaware of this power and suffer as a result their inaction and ignorance.”

These observations hold true for the prevailing situation in Pakistan as well. What we need to do is explaining by Aruna: “We need to take legislation to the people and policy can’t be framed without the consent of the people. In a democracy no policy can be formed without a public debate”. She quoted Bolivian President Evo Morales: “There is the Left, there is the Right and then there are the people. Without taking the people into confidence and without their consent no democratic government can claim to establish successful governance. In other words, whatever the government does should be made public so that the electorate can scrutinize acts of their representatives holding them both responsible and accountable”.

The starting point of across the board accountability in Pakistan should be making public, declarations of assets, liabilities, incomes and taxes of high-ranking civil and military officials and judges. Judges hold politicians and others accountable so they must demonstrate to the masses that their hands are clean. 

The incumbent Chief Justice of Pakistan, who has been actively pursuing issues of public importance under Article 184(3) of the Constitution and even attracted criticism for how this power should be exercised by some of his own fellow brothers, must be aware of the developments in India in this direction. One hopes, he would soon make his assets public and order disclosures by all honourable judges and ensure their placement at the official website of Supreme Court. 

The Supreme Court Bar Association should also raise the above issue that is essential for accountability of Bench. The public disclosures of assets by judges will also counter the arguments of politicians that why they alone are subjected to scrutiny for their wealth accretion and financial matters. 

In Pakistan we have laws for in-house declaration of assets and liabilities by government servants, including, military personnel but the ordinary citizens cannot get details invoking Right of Access to Information Act, 2017 and provincial laws in the case of public servants serving under provinces. In these declarations, the present value of the property and how they were acquired are seldom revealed. These, along with tax declarations of public servants, should be made public. The same should be for the judges and generals.

In India, there was sharp criticism over asset disclosures of the judges and their spouses. It was demanded that information about the assets of other close relatives, like sons and daughters, was also important as close and large family nexuses exist. The declarations, made under an Indian Supreme Court resolution of May, 1997, were only in partial conformity with the requirements laid down. That declaration, in fact, underlined the need for a law that should require disclosure mandatory and open to the public, giving detail of assets to be declared, how the disclosure was to be made and who should come under its purview. The civil society and media in India demanded that it should also specify the consequences of wrong declarations. In Pakistan, our media and civil society has yet not made any such move.

The campaign for judicial accountability in India through public disclosures of assets by judges proved to be of great public importance. The public and media made it clear that the RTI legislation is the key to open government, transparency and accountability. Such legislation, if implemented in letter and spirit, can pave the way for meaningful democratic dispensation.

We in Pakistan require the similar public campaign if all the four pillars of State—Legislation, Judiciary, Executive and Media—have to be made accountable to the public. Right to information, access to public record and free availability of what is owned by privileged classes must be assured as it is fundamental right under Article 19A of the Constitution. It will certainly help establishing an open government, free of corruption and accountable to voters responsible for creating it.

The writer, Advocate Supreme Court, is Adjunct Faculty at Lahore University of Management Sciences (LUMS), member Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE)