Infographics
Videos
November 13, 2018
MULTIMEDIA

Clouds over Pakistan’s Sunshine Laws


Design and Illustrations: Sahar Khan

Chapter 1: The System

In October 2017, Media Matters for Democracy (MMfD) and its team of reporters started a journalistic endeavour to test the effectiveness of the Right to Information (RTI) laws in the federal capital Islamabad, and the provinces of Sindh, Punjab, and Khyber Pakhtunkhwa. Between October 2017 and March 2018, the team filed a total of 195 records requests to different public bodies across Pakistan and followed up insistently to gather data and information. This piece details the team’s experience with the implementation of Pakistan’s RTI laws.

 

“We will start with PEMRA (Pakistan Electronic Media Regulatory Authority),” we had decided. Gleeful, we thought we had an option that would easily give us a win right at the start. The PEMRA chairman had previously worked with multiple members of our team, and we had some access within the organisation. In true Pakistani fashion, the contacts gave us more confidence than the RTI law itself.

In time, we were to find that when it comes to access to public information, having or creating contacts is not really an effective strategy either.

But back in November 2017, with an ambitious plan of creating long-form investigative stories based on around 100 RTI requests we had drafted, starting out with a public body where we did have contacts helped put us at ease.

As it turned out, PEMRA — the media regulator — proved to be one of the worst institutions in terms of compliance with the federal RTI law. It was ironic, given that the regulator’s primary job is linked to information systems.


“There is no understanding of information as a public right within the bureaucracy,” observes Azaz Syed.


The one person, who could share details about the systematic issues that created hurdles in the access to information at PEMRA, would only do so if we withheld the person’s identity.

“Like most public offices, no one really bothered to reply to requests made by the citizens so all such requests forwarded were put on a file which took weeks if not months to get approved by the chairman,” our PEMRA source says.

The source reveals that the PEMRA employees were not keen on sharing any information and matters are further delayed by bureaucratic red-tape.

“It is a bit of a task to convince them to give certain information to others,” the source says. “Even if a simple request came asking for a document that was not even confidential, one had to go through a long procedure to get it approved – from the legal department then another department and then finally the chairman.”

Given the structure of public bodies in Pakistan, it is not surprising that candid commentary on systematic challenges cannot be shared without anonymity.  Therein lies the issue.

The System that Obstructs

The ‘system’ that each one of the four reporters working on these RTI requests grappled with is one bestowed by British colonisers and strengthened by multiple dictatorial regimes throughout Pakistan’s history.

“There is no understanding of information as a public right within the bureaucracy,” observes Azaz Syed, a reporter who frequently uses RTI as a source of information.

Mr. Syed, who has previously won a national RTI champion award, notes not just a reluctance, but a resistance to information-sharing among public officials.

“The secrecy in bureaucracy is a part of their training,” he says. “From the CSS (Central Superior Services) Academy to the Police Academy, information is protected like a closely guarded secret and despite the presence of the laws, the possessiveness around public information continues to prevail.”

The observation is seconded by the source at PEMRA.

“Once a lawyer got in touch with us, asking for some decisions of PEMRA. PEMRA first asked him to send a request under RTI. He complied. But then they still kept delaying even though the decisions that he had asked for were supposed to be public documents,” the source says.

PEMRA officials kept asking the lawyer to talk to different persons at the authority each time.

“He had to submit a reply to the court so he needed the documents urgently,” the source says. “After a lot of going back and forth, he finally got the required documents and probably because he was a lawyer and was aware of his rights and the laws.”

As we were about to find out soon, the lawyer was indeed lucky to have received the information.

Go Back to Top to Read Chapter 2: Limbo (Mobile readers should use the menu.)

Chapter 2: Limbo

A Law in Limbo

MMfD’s team submitted information requests with PEMRA in November 2017. At the time of filing of the requests, the government had passed a newer and stronger law at the federal level.

The Right of Access to Information Act 2017, passed after years of advocacy, had replaced the Freedom of Information Ordinance 2002, a weak information law passed by General Pervez Musharraf in compliance with conditions for a bailout package by the Asian Development Bank.

With years of advocacy behind the 2017 law, hopes about the creation of a better and more open information regime were high.

However, the passage of the Act was not followed by the enactment of the Pakistan Commission on Access to Information — the statutory body mandated by the law to ensure proper implementation of the Act and provide redress for aggrieved citizens.

The old RTI law was automatically repealed after the passage of the new law. The new law was never operationalised. With no information commission, no rules of business, and no budget for the RTI law’s implementation, the information access regime in the federal capital slipped into a limbo.


This vacuum created by the delay in the implementation of the RTI law came to affect all of the requests filed in the federal capital.


MMfD’s interaction with PEMRA during this period exposed the gap within the legislative landscape.

On receiving the information requests filed by MMfD, PEMRA responded after a month with instructions to submit the requisite fee. However, according to Section 27(b) of Right to Access to Information Act 2017, it is the information commission that has to prescribe the “fee that may be charged for requests”. Without the commission there was no clarity on the prescribed fees and PEMRA’s own officials claimed a similar lack of knowledge.

Just like the amount to be paid as fees was not known, the bank account in which the fee was to be deposited also remained a mystery. When the team eventually figured it all out and submitted the fee challan, PEMRA went silent on the requests again.

This vacuum created by the delay in the implementation of the RTI law came to affect all of the requests filed in the federal capital.

Out of 53 RTI requests filed between September 2017 and February 2018, responses were received in only 10 cases. Most of the requests did not receive any response or acknowledgment from the public bodies. Internal review appeals were filed in nine cases, but decisions on the same are still pending.

All in all, the success rate of RTI requests filed under the Right to Access to Information Act 2017 was only 18.8%. This is the lowest response rate among all the laws tested for this story.

Going to Court

“When the government fails to implement a law such as this, they become directly responsible for the violation of citizen’s constitutional rights,” says lawyer Umer Gilani.

Mr. Gilani, an advocate of the Islamabad High Court, says a constitutional guarantee is at stake in this case.

“The inability to implement the Right of Access to Information Act can result in the violation of the right guaranteed in Article 19-A of the constitution of Pakistan,” he says. “In such cases, any aggrieved party can directly appeal to any constitutional court.”

The failure to obtain requisite information or even an acknowledgement of reception of these requests led the team to court. MMfD’s reporter Azaz Syed, who had been chasing after these responses for months, eventually filed three writ petitions at the Islamabad High Court.

Read the writ petition and court order below:

During the hearings of these petitions it was found that with the inception of the new law, the government failed to make any mechanism to entertain the appeals already pending before the Federal Ombudsman’s Office under the previous RTI Act.

Rather than being moved to the Pakistan Commission on Access to Information, the pending appeals under the repealed Freedom of Information Ordinance 2002 had been trashed.

It was not until the last week of May that the outgoing government appointed three commissioners for the Pakistan Commission on Access to Information. It was one of the last executive orders as the five-year parliamentary tenure of the government came to an end.

The Commissions that Almost Never Happened

The federal information commission was not the only commission whose establishment took months.

The Sindh Assembly had passed the Sindh Transparency and Right to Information Act 2016 in May 2017. Section 12 A of the Act states that the “Government shall within a period of one hundred (100) days from the commencement of this Act, establish an Information Commission to be known as the Sindh Information Commission.”

More than a year and several letters to the Sindh Chief Minister later, there were no signs of a commission on the horizon. The absence of the Sindh Information Commission meant that the new Sindh RTI law was dysfunctional. If a public body did not provide records on an RTI request, there was nothing a citizen could do to change that.

Then, just as the Sindh government’s five-year term was about to end in May, it also appointed the three commissioners to establish the provincial RTI commission.

But for most of 2017-18, just like the federal law, the Sindh government’s failure to ensure implementation of the law had also created an environment where it was extremely difficult to hold the public bodies liable for non-compliance.

It is unclear if the federal and Sindh information commissions will have any funds to operate before the new governments are sworn in after the July general elections.

Even after the appointment of commissioners, therefore, access to information remains a challenge.

Go Back to Top to Read Chapter 3: The Struggle (Mobile readers should use the menu.)

Chapter 3: The Struggle

Apart from a select few public bodies, such as the Khyber Pakhtunkhwa police department, most organisations were not responsive to written requests. Reporters who filed these requests had to persistently follow up, use pressure and contacts, and visit PIOs to ensure delivery of information.

 

All reporters had to personally visit offices of public bodies many times before any information was provided. Illustration by Sahar Khan.

 

“After filing the requests and calling each PIO persistently, I eventually had to visit the public bodies multiple times,” says Oonib Azam, MMfD’s reporter from Karachi. “I had to use my influence and sources as a journalist through out the process of acquiring information.”

Mr. Azam says he had to sit for hours at the offices of public bodies, trying to obtain data.

“In some instances, I actually had to go through their data myself,” he says. “There is no way a common citizen, who does not have media connections and sources can make use of this law”.

Data from Sindh demonstrates the impact.

Out of 42 RTI requests filed under the Sindh Transparency and Right to Information Act 2016, responses were received only in 10 cases. While no requests were denied outright, the non-response in most cases led to the filing of internal reviews for 20 of the requests. The remaining 10 are still pending.

Khyber Pakhtunkhwa and Punjab Struggle with their own Challenges

While the implementation of the federal and Sindh laws suffered from the government’s failure to establish the respective commissions, the Punjab Information Commission has been just as ineffective in 2017 due to the non-appointment of new information commissioners.

The tenure of the first batch of information commissioners ended in mid 2017.

Similar to governments at the centre and in Sindh, the Punjab government also appointed new commissioners in May when its term was about to expire.

However, the commission was not operational almost for an entire year, bringing Punjab almost to the same level as the regions where the commission did not exist at all.

“Without the information commission, there was no pressure on the public bodies and government departments to respond to RTI requests,” says Shahid Aslam, MMfD’s reporter from Lahore. “I visited their offices various times myself, but was simply asked to come again or visit this person or that.”

Mr. Aslam termed the whole process “extremely frustrating.”

“The data I eventually received was only through my own sources,” he says.

The way his source acquired data indicated to Mr. Aslam that the records were compiled and available.

“It was clear that the issue was not a non-availability of data, rather a lack of will to provide the data through legal channels,” he says.

The Punjab Transparency and Right to Information Act 2013 is one of the strongest RTI laws in Pakistan. However, the implementation issues made it one of the most ineffective laws in operation. Only 22% of the RTI requests filed under the Punjab law between November 2017 and March 2018 were successful.

In Khyber Pakhtunkhwa, the commission enjoys a better reputation. However, feelings of frustration persist.

“The current Chief Information Commissioner really facilitates media and journalists,” says Farzana Ali, MMfD reporter from Peshawar. “However, it has to be kept in mind that as a retired bureaucrat who served on various government posts, including within the information department, he has preexisting relationships with media personnel.”

The same level of co-operation might not be on display if an ordinary citizen turns up at the commission’s door.

“The common man going to the commission is unlikely to get the same treatment,” Ms. Ali says. “In addition, one has to note that the Commissioner’s appointment in this prestigious position after retirement must have made him feel somewhat indebted to the government. Wouldn’t it be better to appoint people who have no such connections, which might colour their decisions?”

However, among the four laws with which MMfD filed information requests the response from Khyber Pakhtunkhwa remained the best.

Among the 54 information requests filed under the Khyber Pakhtunkhwa Right to Information Act 2013, 18 were successful, giving a success rate of 32.7%. A total of 19 requests were denied, and 16 are still pending. The commission helped MMfD get data on eight of 10 complaints and only two appeals are still pending with the commision.

 

Go Back to Top to Read Chapter 4: Hit or Miss? (Mobile readers should use the menu.)

Chapter 4: Hit or Miss?

Hit on Paper, Miss on Ground?

Back in 2013, Toby Mendel, the Executive Director of the Canada-based Centre for Law and Democracy and a global advocate for RTI, was working as a consultant with World Bank on RTI issues in Pakistan. The Pakistan Tehreek-e Insaaf (PTI) had just been voted in power in the province, and party chief Imran Khan had issued directives for the enactment of an RTI law.

One thing led to another and Mendel ended up drafting the law that was eventually passed as the Khyber Pakhtunkhwa Transparency and Right to Information Act, 2016. Mendel, whose organization is involved in rating RTI laws across the world, calls it the strongest RTI law in the whole world.

Speaking with MMfD, Mendel notes that while the law itself is very strong, its efficiency depends on implementation.

“There are many, many challenges,” he says. “The implementation is a long way from being perfect. But overall, I have been pretty encouraged by the implementation.”

Journalists in Khyber Pakhtunkhwa do not share his optimism. In fact, journalists fear that compliance with the law is getting weaker.

“When the law was initially enacted, the implementation was better,” Ms. Ali says. “Only information related to sensitive security matters was difficult to access.”

Public records related to health and education were easily accessible, she says.

“But, I don’t know what happened, with time things started going downhill,” Ms. Ali says. “In particular the last parliamentary year of the outgoing PTI government, the access to information became really, really difficult.”

She says the government’s attempts to weaken the law were throttled by the civil society but access, especially to health, education, and environmental  public records, became more and more difficult.

“We tried really hard, even using sources in government and even within the information commission,” Ms. Ali says. “Even when the data was provided under pressure, the data was incomplete. Wherever questions about budget were raised, the access to information became impossible.”

Ali notes that even when commission was approached, the data provided was incomplete.

MMfD’s information requests to several Khyber Pakhtunkhwa government departments were stone-walled by officials. But one of the most closely guarded public bodies in the province turned out to be a medical facility: the Lady Reading Hospital.

Go Back to Top to Read Chapter 5: A Hospital, Money, and Trees (Mobile readers should use the menu.)

Chapter 5: A Hospital, Money, and Trees

A Public Hospital Demonstrates a Key Systematic Issue

The iconic Lady Reading Hospital in Peshawar is an impressive public body. Well known across the country due to its position as the hospital to which innumerable terrorist attack victims have been directed over the last decade.

The Lady ReadingHospital in Peshawar has been a no-go area for journalists for years. Illustration by Sahar Khan.

The hospital has been a no-go area for journalists since the PTI came to power. Stories about embezzlement of funds, nepotism, and corruption within the hospital have been circulating among the local journalists.

But with a cousin of PTI chairman Imran Khan currently serving on the board of Lady Reading Hospital, access to these stories has been effectively blocked. Even though nothing in the RTI request directed to the Lady Reading Hospital is exempted in the Khyber Pakhtunkhwa Transparency and Right to Information Act 2016, the hospital remained non-responsive. Even the involvement of the information commission did not yield results.

Allegations of rampant nepotism and accusations of corruption and misuse of funds and power is nothing new in Pakistani politics. And with apparent personal connections that interlink the government and the bureaucracy, access to information that could expose any wrongdoing naturally gets restricted by those in power.

A possible reason for blocking access to information might be to stop media from uncovering possible stories of embezzlement of funds.

Let’s not Talk about Money

The observation about the lack of access to budgetary data was repeated in other provinces, as well.

In Sindh, data requests related to Basic Health Units (BHUs) were only partially successful — all requested information was provided except budgetary records.

“Despite using sources, calling and visiting the health-related departments many times, access to budgetary data remained impossible,” says Mr. Azam, MMfD’s Karachi reporter. “We were referenced to PPHI whenever we asked about budget allocation.”

The PPHI is a private company that in 2014 took over the management of the primary health care infrastruture for the Sindh government.

Meanwhile, the government departments were being of no help.

“I called all respective departments that were referred, however, it was impossible to connect with anyone who was willing to be open about budgetary allocations,” Mr. Azam says. “Budgets it seems remain a closely guarded secret.”

In most cases, the requested information was simply about budgetary allocations and not the spending. The secrecy around budgets is telling – of all the information that can be collected through RTI laws, information related to public money should technically be most easily accessible. Budgets are recognised as public documents, after all.

The secrecy around budgets also remained the same in Punjab. Once again, it was health-related requests that exposed this reluctance most prominently.

“The resistance to share information of health-related expenses was very surprising for me,” Mr. Aslam says. “I am unable to understand why there is such resistance to sharing this data.”

He says he had assumed that it would be easy to get access to this information.

“Perhaps there is some wrongdoing that they need to cover up,” Mr. Aslam says.

Whether there is wrongdoing or not, it is clear that some information is being held back simply to give credence to attractive political sloganeering. The Billion Tree Tsunami proect is a case in point.

The Billion Tree Tsunami and the Urge for Political Sloganeering

The Khyber Pakhtunkhwa government’s Billion Tree Tsunami Afforestation project has become a grand political campaigning tool for the PTI. The political party has quoted the project as a shining example of its dedication and commitment to sustainable development in the province and Pakistan.

However, details about the plantation of the billion trees have been sketchy.

“One of the TV channels got statistics of the Billion Tree Tsunami project through an RTI request,” says MMfD’s Peshawar reporter Ms. Ali. “It turned out that 24 crore trees have been planted.”

She says this was a setback for the PTI, which had been using the billion-tree slogan extensively.

“It would have been a great success for PTI even if just 24 crore trees were planted,” she says. “But when the data was acquired, other questions also came to light – for example, which kind of trees were planted? Where were they acquired from? At what cost? These questions would have resulted in a very difficult position for PTI. And so access to data regarding to the billion tree tsunami campaign was completely blocked.”

Information about Khyber Pakhtunkhwa government’s billion tree tsunami project remains inaccessible. Illustration by Sahar Khan.

The attempts to hush up information that might create doubts around political slogans is not limited to PTI. In Islamabad and Lahore, attempts to acquire data related to the safe city projects, touted as examples of good governance by the ruling Pakistan Muslim League-Nawaz, have been similarly blocked.

While journalists struggle to gain access, politicians apparently continue to make fantastical claims and quote unfounded statistics to brag about their performance unchallenged.

Go Back to Top to Read Chapter 6: The Process (Mobile readers should use the menu.)

Chapter 6: The Process

A Technical Issue

If one is to take a step back from issues arising from the lack of political will and conflicting organisational cultures, the actual process of requesting and acquiring information has its own set of challenges.

The majority of public bodies still accept RTI requests only through post. The lack of electronic means of communications it this day and age is incomprehensible.

The majority of public bodies still accept RTI requests only through post. Illustration by Sahar Khan.

“The postal system in interior Sindh is very weak. I really struggled with getting any information about the receipt of my requests,” says Oonib Azam, “One has to call again and again. This grind ends up having a direct impact on the time frame within which the information has to be delivered.”

Then there are more detrimental technical challenges.

There is a serious lack of digital literacy within public bodies. There do not appear to be universal SOPs regarding the archiving and storage of information and data.

Apart from a few big cities, data is still stored on manual files and digitisation is minimum. During engagements with PIOs of different public bodies, the lack of digitised data was quoted as one of the key challenges in the provision of information, even if the will to share was present.

There is also some evidence that public bodies with good technological access and understanding are more responsive to RTI requests.

One of the most responsive institutions is the Khyber Pakhtunkhwa Police. Among 10 requests filed to the police department, 70% were successful. The department also provided information in digital formats and used spreadsheets and tables when asked to do so.

There are other procedural challenges.

Being a PIO is simply an additional charge. Government officers are given an additional responsibility without any accompanying perks and have to perform the duties of a PIO while taking care of their original tasks. They also have to interact with different sections within the public body and at times have to ask for information held by their superiors.

While the PIO is the person liable for non-provision of information under the law, the PIO is rarely the person who actually possesses the information.

“The fact that the PIO has to be evaluated by the department head every year makes him very vulnerable,” says Ms. Ali, the Peshawar reporter. “If the department head or his higher-ups are opposed to sharing the information,  doing so would eventually affect his annual evaluation even if he himself is willing to share the records.”

Ms. Ali calls it an oversight in the law that has affected the implementation negatively.

Go Back to Top to Read Chapter 7: Secrets (Mobile readers should use the menu.)

Chapter 7: Secrets

Official Secrets: From Law to Attitude

And finally, there is the question of political and bureaucratic will.

As a postcolonial state, Pakistan’s legislative system still has its foundations in the British common law. The foundations on which the legal system stands draws its basis from an undemocratic era where the state treated its citizens as subjects. One of the colonial remnants in the legal system is the Official Secrets Act 1923.

“The RTI Act enables the enjoyment of the constitutional right defined in Article 19(A),” says Mr. Gilani, the lawyer. “Thus it overrides the Official Secrets Act 1923.”

However, the culture of secrecy in Pakistan’s bureaucratic set up is not solely rooted in a law.

“Pakistan has technically turned into a security state,” says Mr. Syed, MMfD’s Islamabad reporter. “Security remains a key concern in all legislations and policy making.”

This concern for security has further led the bureaucracy towards an approach of secrecy, according to Mr. Syed.

“They feel that the information should be guarded and it should not be in the public domain,” he says. “The understanding that information is a basic right of citizens is not present. People do not understand what right to information is and what its importance is.”

The experience of actively following up on 195 RTI requests across the country demonstrates the truth in this observation.

Around the world RTI laws are popularly known as sunshine laws – an acknowledgement of their role in bringing to light information related to public institutions.

In Pakistan, various structural, behavioural, systematic, and procedural challenges hamper the effective implementation of these laws.

On paper, Pakistan now has a strong information regime. On ground, much work needs to be done before clouds over the sunshine laws part.

Read MMfD’s detailed analysis on RTI implementation in the report below:

Go Back to Top to Read Again

Tags

No comments

leave a comment