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 perks, 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 & 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.
Article 19A of the Constitution commands: "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". 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 example of it. The Legislature, by inserting Article 19A through 18th Constitutional Amendment in 2010, 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, 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 perks, 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 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 all the 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-hierarch 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, www.supremecourtofindia.nic.in. 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. But it has not happen till today. 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. There is therefore a legitimate question that whether or not judges who adjudge others, 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.
(To be continued) (The writers, lawyers and partners in Huzaima, Ikram & Ijaz, are member Adjunct Faculty of Lahore University of Management Sciences)