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Text from the freedominfo.org Global Survey: Freedom of Information and Access to Government Records Around the World, by David Banisar (updated 12 May 2006) The Constitution of Pakistan does not expressly give a right of access to information. Article 19 states:
The Supreme Court ruled in 1993 that Article 19 includes a right of citizens to receive information.(2) In October 2002, President Perviz Musharraf promulgated the Freedom of Information Ordinance 2002, largely at the urging of the Asian Development Bank.(3) Although the Ordinance should have lapsed within 6 months, the President has issued a constitutional decree which has ensured the continuance of the Ordinance. The Ombudsman ruled in April 2004 that the Ordinance still was in force even in the absence of the regulations.(4) Rules were issued in June 2004, but without any input from stakeholders.(5) Civil society groups have since lobbied the Government to implement Model Rules, but to no avail. It allows any citizen access to official records held by a public body of the federal government including ministries, departments, boards, councils, courts and tribunals. It does not apply to government-owned corporations or to provincial governments. The bodies must respond within 21 days. There is some ambiguity about what information is accessible. The Ordinance allows access to "official records" and then sets out an exceptions regime subject to a harm test for international relations, law enforcement; invasion of privacy; and economic and commercial affairs of a public body. However, it also allows access to "public records" which it specifically defines as only policies and guidelines; transactions involving acquisition and disposal of property; licenses and contracts; final orders and decisions; and other records as notified by the government. It then makes these public records subject to mandatory exemptions for: notings on files; minutes of meetings; any intermediary opinion or recommendation; individuals' bank account records; defense forces and national security; classified information; personal privacy; documents given in confidence; other records decreed by the government. Government bodies are required to appoint an official to handle requests. They also have a duty to publish acts, regulations, manuals, orders and other rules that have a force of law, and maintain and index records. It specifically requires that those records covered by it are computerized and networked throughout the country within a reasonable time, subject to finances, to facilitate access. Appeals of denials can be made to the Wafaqi Mohtasib (Ombudsman) or for tax-related matters, to the Federal Tax Ombudsman. The Ombudsmen have the power to make binding orders. Officials that destroy records with the intention of preventing disclosure can be fined and imprisoned for up to two years. The Mohtasib can fine requesters Rs10,000 for making "frivolous, vexatious or malicious" complaints. The law says that it applies notwithstanding other laws such as the Official Secrets Act, which is based on the original UK OSA 1911 and sets broad restrictions on the disclosure of classified information.(6) The Consumer Rights Commission of Pakistan has called for the repeal of the OSA to facilitate freedom of information. Media groups and NGOs report that the Act has not been fully implemented and access is still difficult.(7) As recently as March 2006, the Centre for Peace and Development Initiatives held a workshop for the Cabinet Division of Government following which it commented that many information officers are still not fully aware of their roles and responsibilities under the Ordinance. CPDI complained that implementation of the Ordinance still requires a major cultural and attitudinal shift on the part of government officials. It recommended that the government improve the current restrictive legislative framework, organize training and sensitization workshops, provide clear and detailed guidelines to designated officers about dealing with information requests and ensure that all ministries prepare lists and indexation of records held by them and publish them on websites.(8) It has also demanded that all parliamentary committees promote greater access to information to open up government decision-making processes, because most committees considering legislative bills or performing oversight duties hold their meetings privately without disclosing their minutes.(9) The National Assembly rejected an attempt by the opposition Pakistan People's Party in October 2004 to introduce a bill to create a comprehensive law on freedom of information. None of the 4 provinces has adopted FOI laws for information held by provincial bodies. Two ministers from the North Western Frontier Province (NWFP) promised in August 2004 to adopt a FOI law for NWPF.(10) 2004 freedominfo.org Global Survey Results - Pakistan 15
FEBRUARY 2004 Ironically,
Pakistan is the first country in South Asia to enact a Freedom
of Information Ordinance - in 1997 through a presidential
order, under a caretaker set-up. The Ordinance, thoroughly
debated by citizens' rights groups, lapsed after it was
neither re-promulgated nor placed before the next elected
parliament for legislation. The present Freedom of Information
Ordinance was also enacted by a Presidential Ordinance under
a military government, in September 2002, but the passage
of the 17th Amendment has made it a law which needs no ratification
by parliament. 10
DECEMBER 2003 In a joint press statement issued by the Consumer Rights Commission of Pakistan (CRCP) and Centre for Civic Education Pakistan (CCE) on the eve of International Human Rights Day, both organizations maintained that without promulgating the rules of business, the government's commitment towards FOI was nothing less than lip service. 29
SEPTEMBER 2003 The speakers exhorted that the FOI is about a new mind set in the governance. “The attitudes and psyche developed under the shadows of Official Secret Act-1923 would have to go to usher upon a new era of information disclosure,” said speakers. The implementation of FOI is a process, said Mary Cummins and this process can’t be completed within days. The parliamentarians at the consultation said, FOI is a first good step, its deficits could be discussed in the legislature to improve it. Exclusions on the name of national security were also discussed. “Such exclusions could be tolerated only up to operational defense matters but not about the personal conduct of various officers,” said the MMA representative. 26
OCTOBER 2002 The text of the ordinance can be found here.
Notes 1. Constitution of the Islamic Republic of Pakistan. http://www.pakistani.org/pakistan/constitution/ 2. Sharif v. Pakistan, PLD 1993 S.C. 471 3. Freedom of Information Ordinance 2002, No. XCVI of 2002. F. No. 2(1)/2002-Pub. Islamabad. 26 October 2002. http://www.crcp.sdnpk.org/ordinance_of_2002.htm 4. Wafaqi Mohtasib, Failure to Provide Information Under the FOI Ordinance 2002, 6 April 2004. http://www.crcp.org.pk/ombudsman.htm 5. Freedom of Information Rules 2004. 6. For a detailed review of the situation of freedom of information in Pakistan until 2001, See Article 19, Global Trends on the Right to Information: A Survey of South Asia, July 2001. Available at http://www.article19.org/ 7. Information law not being implemented, Daily Times, 4 October 2004. 8. CPDI, CPDI-Pakistan Calls for Designated Officers to Take Effective Steps to Implement the Freedom of Information Ordinance 2002", 2006 9. CPDI, CPDI-Pakistan Demands Transparency in the Functioning of Parliamentary Committees", 2006. 10. Access to information in NWFP promised, Dawn, 14 August 2004.
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