Testing the RTI law

The RTI law is being put to a severe test by the same parliament that passed it, writes Farhatullah Babar

Testing the RTI law
When the far-reaching right to information law was enacted in 2017 by the Parliament, it was hoped that it will usher in transparency and good governance. Little was then realized that the law will could be scuttled by the Parliament itself. But this is what seems to be happening. How?

In May last year, a private citizen, Ahmad Mukhtar Ali, invoking the RTI law asked Senate Secretariat questions about the total sanctioned staff, positions still vacant, number of contractual employees, new posts created and the number of female, disabled and transgender staff along with a copy of the latest services rules. The law stipulates that such information should have been available on the Senate’s website but after not finding it there, the questioner had approached the secretariat.

Ordinarily the information should have been provided within 30 days but it was not. Failing to get it, the questioner complained to the Information Commission, an independent body created under the same law, and sought its intervention in the matter. Routinely, the Information Commission asked for comments of the Senate Secretariat but received no reply for nearly six months. Commission’s notices asking a senior officer of the Senate to appear before it were also not heeded.

The Information Commission then finally asked that the required information be provided to the questioner within 10 days and also uploaded on the Senate website. The requested information should be in public domain to throw light on whether the Upper House was properly staffed and whether the provincial job quota was being observed, it said. The Commission’s order was based on Section V (A) of the law, which makes it mandatory to make public any information about “description of the public body’s organization and functions. duties, powers and any services it provides to the public, including a directory of its officers and employees, indicating their duties and functions and their respective remunerations, perks and privileges.”

The Senate Secretariat shot back with a ruling of the chairman that the record sought was ‘classified’ and could neither be provided to the questioner nor to the Information Commission. When and in which context the chairman gave this ruling was not mentioned and the Commission sternly told that the chairman’s ruling cannot be brought into question.

The Information Commission, however, rightly insisted that the only course available to the Senate is to challenge the Commission’s order in the Islamabad High Court as provided under the law. If this course is not followed, the Senate Secretariat will attract the mischief of the ‘contempt of court,’ the Commission boldly asserted in its order signed by all the three members Messers Muhammad Azam, Zahid Abdullah and Fawad Malik.

The RTI law has thus been put to a severe test by none else but the Parliament which itself passed it. “The National Assembly, the Senate including their secretariats, committees and members” has been defined as ‘public body’ under Section II (ix) (C) of the RTI law and thus obligated to provide the requested information. The chairman of the Senate, while giving his ruling, seems to have ignored that it amounted to declaring the Senate Secretariat as not a public body and a violation of the law itself.

Ironically, the RTI law was initiated, debated and finalised first in the Senate when in 2016 it set up a special committee for the purpose. What constitutes a ‘public body’ was then hotly debated during deliberations of the committee. Experience had taught the Parliament that the security establishment was most uneasy with disclosing information in the name of national security. The Parliament and courts were thus also declared as ‘public bodies’ in the law for uniform transparency of all state organs.

In asking other state organs to disclose information and excluding itself, the Parliament would be standing on sandy foundations, it was argued then.

Senate’s refusal to disclose information about staff strength and testing the RTI law makes the Parliament stand on sandy foundations. Two consequences are likely to flow. One, the matter may be decided by the judiciary in which case the Parliament would have weakened and not strengthened itself. Two, the civil military bureaucracy will see in it a god sent opportunity to shut the window of transparency in the name of national security. Parliament itself withholding information from the public cannot ask other state organs to disclose information.

The RTI law was enacted in the backdrop of a large number of questions being disallowed on the twin grounds of ‘secret and sensitive’ and ‘national security.’ For example, questions whether inquiry had been held in Kargil misadventure, whether military officers submitted their statements of assets to the GHQ and whether there was any legislation regulating the Inter-Services Intelligence (ISI) were summarily disallowed citing such reasons. This led to the publication of a compendium Killed in the Chamber - an eye opener of how the facade of ‘national security’ had been employed to deny access to information.

The 2017 RTI law required that for any information to be withheld, a reasoned order must explain how ‘national security’ considerations outweighed public interest and that this reasoning was also challengeable before the Information Commission. More importantly, the law stipulated that the ‘national security’ argument will not apply if the information pertained to corruption in the security establishment’s business empires or there was imminent threat to the life of a citizen in custody. In such cases no information can be withheld. Mandatory disclosure, within two days, of information about a citizen in custody held the possibility of taking forward the discourse on enforced disappearances with impunity.

Alas all this effort is threatened if the Parliament itself refuses to uphold principles of transparency. It appears that the chairman of the Senate has not been advised correctly. It will be in the interest of transparency in the opaque security establishment and taming of the ‘elephant in the room’ if the chairman reviewed his ruling and did not test the RTI law.

The author served as Chairman of Special Senate Committee on RTI Law