Before dealing with the issue highlighted in this petition it is apt to refer the backg round of Right of Information, a longstanding practice and salient characteristic of Islamic jurisprudence: In the Holy Quran, Allah Almighty says: "And mix not up truth with falsehood, nor hide the truth while you know ."(Surah Al-baqra Verse 42)
At another occasion, it has been ordained: "Those who conceal the clear proofs and the guidance that we revealed after we have made it clear in the Book for man, these it is whom Allah curses, and those who curse, curse them (too)." (Surah Al-baqra Verse 159)
In early Islamic era, on a Friday Hazrat Umar-e-Farooq (R.A.), the 2nd Caliph of the Muslims arrived in mosque at Madina to lead Friday prayer and proceeded to deliver his address to the congregation; began by reciting some verses from the Holy Quran and addressing the congregation he said, "Now listen! " A young man from congregation stood up to say , "We will not listen to you, until you give us the explanation that you owe to us". The people were startled at this audacious interference. The Caliph paused for a moment and then turning to the young man said, "Explanation for what?". The young man said, "The other day each one of us obtained a piece of cloth from the "Baitul Mal". Today I find two pieces of cloth on the person of the Caliph. I want to know what right had the Caliph to get a share twice the share of an ordinary Muslim?" Before the Caliph could explain, Abdullah, the son of the Caliph rose up and said, "Friends, the truth of the matter is that like every other person my father and myself obtained a piece of cloth each from the "Baitul Mal". My father is so tall that the piece of cloth that he got from the "Baitul Mal" did not suffice him, so I gave him my piece of the cloth." This explanation satisfied every one. The young man who had interrupted the Caliph said, "We are satisfied. You can now proceed with your address. We will listen to you and obey your commands". (A golden but not the sole or unique example of concept of "Right of Information and Accountability to the Public"). This throws light to the fact that in Islamic jurisprudence Right of Access to Information is not a new idea.
2. Even in the Western Jurisprudence "Right of Information" is recognized as one of the fundamental rights.
Magna Carta of Britain is always considered to be the basic document granting Human Rights. Such human rights were adopted and implemented through Constitutions of America and France followed by many other countries. In the Twentieth century the Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly on 10 December, 1948 at Paris France. This "Universal Declaration of Human Rights" is considered a milestone document and generally agreed to be the foundation of international human rights law. It sets out, human rights to be universally protected.
One of slogans of the Universal Declaration of Human Rights is: "Withholding information is the essence of tyranny"
Under this slogan Article 19 of the "Universal Declaration of Human Rights" runs as under: "Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. "
At global level 115 countries have adopted the Right of Information as law and more than 100 countries have acknowledged the right of Access to Information as a fundamental right.
3. Right to information (RTI) is the right that a citizen has, of access to information from the government and statutory bodies that receive public funds . RTI is based on the principle that information belongs to the people. It boosts transparency , which in turn strengthens accountability , reduces corruption and improves delivery of public services. Access to information was increasingly recognized as a prerequisite for transparency and accountability of governments, as safeguarding citizens against mismanagement and corruption. This has led to enact freedom of information legislation.
4. In Pakistan, right of access to information has been acknowledged as a fundamental right vide Eighteenth Amendment since the year 2010 by inserting Article 19-A to the Constitution. The said provision reads as under: "19-A Right to information.- 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 .
5. It is appreciable that in pursuance of the command of Article 19-A supra a very effective legislation by the Provincial Legislature has been made i.e. The Punjab Transparency and Right to Information Act, 2013 (the Act).
Moreover the Punjab Government has established The Punjab Information Commission as implementing agency of this legislation since 2014. It is regrettable to note that public at large is still not much aware about the remedy available to them under the said law in cases where government functionaries or public bodies do not respond to their requests of access to information. At this juncture it would be appropriate to reproduce Pre-amble of the Act ibid to highlight its purpose, scope, extent, import and reasons: "Whereas it is expedient to provide for transparency and freedom of information to ensure that citizens have improved access to public information; to make the Government more account able to citizens; to enforce the fundamental right of access to information in all matters of public importance; and, to provide for ancillary matters "
The Pre-amble quoted above would indicate that primary object of the said law is to make the government more accountable to citizens and to enforce their fundamental right of access to information in all matters of public importance. The premise of such fundam ental right is based upon the concept that the citizens being tax payers are real owners of public information held by the public bodies or government depa rtments. It is no doubt a modern device in the political history of civilized society rather a weapon against corruption, nepotism and arbitrary decisions by making any public documen t or public action transparent and open to public view. Any citizen without an obligation of explaining his interest can seek information regarding any public matter/document from any public body/functionaries. His being only citizen of Pakistan is enough to constitute his cause of action. The public body can also not ask the reason for seeking such public information. At this juncture I feel it imperative to note that Section 4 of the Act requires the public body/state functionaries to proactively disclose certain information. Said provision of law reads as under: "4. Proactive disclosure.- Subject to the provisions of this Act, a public body shall proactively disclose
(a) Particulars of the public body , its functions and duties;
(b) Powers and functions of its officers and employees;
(c) Norms and criteria set by the public body for the discharge of its functions;
(d) Acts, Ordinances, rules, regulations, notifications, circulars and other legal instruments being enforced, issued or used by the public body in the discharge of its functions;
(e) A statement of categories of information being held by the public body;
(f) A description of its decision-making processes and any opportunities for the public to provide input into or be consulted about decisions;
(g) A directory of its officers and employees with their respective remuneration, perks and privileges;
(h) Budget of the public body including details of all proposed and actual expenditures;
(i) Amount of subsidy and details of beneficiaries if the public body provides any subsidy;
(j) Particulars of the recipients of concessions, permits or authorizations granted by the public body;
(k) Facilities available with the public body for obtaining information held by it;
(l) Name, designation and other particulars of the public information officer of the public body; and
(m) Any other information that the Government may notify in the official Gazette.
The over-all scheme of the Act casts a legal obligation upon public body to releas e information through electronic or other means having public access (of course with the exception of information that the body is required to protect due to privacy risk). Needless to mention that law expects government functionaries pro-active and not lethargic role. For this purpose, the Act of 2013 requires designation of public information officers (P.I.O.) in all administrative units or offices under it who have been bound down to provide requis ite information within 14 days of filing of R.T.I. application under Section 10 of the Act. For said purpose each public body was mandated under Section 7 of the Act to designate/notify at least one public information officer for each office or administrative unit within 60 days of promulgation of this Act. Said provision of law runs as under: "7. Designation of public information officers:-
(1) A public body shall, within sixty days of the commencement of this Act, designate and notify as many officers as public information officers in all administrative units or offices under it, as may be necessary .
(2) Subject to the provisions of this Act, a public information officer shall provide information to an applicant, and shall perform such other functions as may be prescribed to achieve the purpose of this Act.
(3) The public information officer may seek necessary assistance of any other officer of the public body .
(4) Any officer whose assistance has been sought under subsection (3) shall render all assistance to the public information officer seeking his assistance and for purposes of any contravention of the provisions of this Act, such other officer shall be deemed as public information officer.
6. Now I come to the present case which has arisen from denial of the respond ents to make available required information to the petitioner recognizing his fundamental right. Feeling embittered by the conduct of the respondents not to come to his aid, the petitioner has invoked jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakis tan, 1973 (the Constitution) to enforce his fundamental right guaranteed under Article 19-A of the Constitution.
7. Shorn of unnecessary details, facts of the case are that Hakim Muhammad Saeed, petitioner being elected councillor pointed out certain illegalities in ongoing development works in his constituency of Distt. Council and as such approached respondents No. 2 to 4 making a request to provide him record of development work for the financial years 2016-17, 2017-18 and 2018-19 as well as record of tenders of repairs of government buildings etc. (detailed in petition). As per petitioner, he filed a number of applications before the respondents but all his efforts proved fruitless. Case of the petitioner before this Court is that since he is seeking copies of public record/documents as such as per mandate of the Act, the respondents are under obligation to accede to request of the petitioner. Bare perusal of Section 4 of the Act would depict that information required in the present case falls in category (h) thereof.
8. Learned counsel for the petitioner has vehemently argued that Article 19-A of the Constitution enshrines the right of citizens to have access to information in all matters of public importance as their fundamental right. He has also referred the provisions of the Act which provide statutory mechanism to facilitate citizens to retrieve copies of public record where public bodies do not fulfill their statutory liability .
9. When pointed out that the petitioner has a remedy to approach to Public Information Officer in terms of the Act absence of which is condition precedent to invoke constitutional jurisdiction of this Court, learned counsel submits that no Public Information Officer has yet been designated in the concerned department, which necessitated filing of the instant petition.
10. Keeping in view the importance of issue involved in this petition, it was felt by this Court that at least Punjab Information Commission was a proper party. As such notice was issued to the Chief Information Commissioner , Punjab to appear and assist the Court in this matter .
11. Mr. Mahboob Qadir Shah, Chief Information Commissioner , Punjab (C.I.C.) has entered appearance and while addressing the Court has highlighted basic features of the Act vis-a-vis rights of citizens in cases where government functionaries/public bodies decline or cause inordinate delay to provide public information and the powers of Punjab Information Commission to enforce its decision against any of ficer or public body .
12. The C.I.C. submits that in case a citizen is not provided requisite information within 14 days or inordinate delay is being caused or the conduct of P.I.O. or public functionaries is objectionable then he can file Right to Information complaint to Punjab Information Commission under the law and the Commission in such case is under obligation to ensure provision of public information maximum within 30 days. The Act has blessed the Commission with powers of civil court as it has the authority to impose penalty under Section 15 upto rupees 50 thousand in case of violation of its orders. Even section 16 provides punishment awarding imprisonment upto two years in case of commission of offence of destroying any record. The R.T.I. Law being a special law takes precedence over all other laws. As such it provides a powerful tool and mechanism to implement the objects of freedom of information.
13. He has also highlighted that filing an R.T.I. application to the P.I.O. for public information followed by seeking the support of Punjab Information Commission by filing R.T.I. complaint is one part of mechanism bringing public information in public domain. The law at the same time provides much strongest and stringent mechanism of proactive disclosure by public bodies under Section 4 of the Act which casts a mandatory obligation for public bodies to voluntarily bringing entire public information in public domain through its websites, circulars and notices. It means that most of the important public information regarding functions, duties, orders, regulations, circulars etc. are intended to be readily available for public. In my view proactive disclosure is most salient aspect of this law. In a civilized society government institutions must fulfill this obligation to improve their credibility by taking public into confidence about their internal working and decisions including budget, expenditure, income etc. The court has been apprised that the Chief Secretary Govt. of Punjab has already issued instructions to government departments to proactively disclose their information which needs further improvement as transparency is paramount consideration.
14. A perusal of Article 19-A of the Constitution would show that every citizen has been conferred a right to have access to information. However, such right is available under the said constitutional provision only if matter relates to public importance. Enforcement of this right has been further made subject to curtain regulations and reasonable restrictions imposed by law. So far as first part of the provision is concerned, it cannot be denied that quality of work done from public exchequer and transparency of actions of government departments in awarding tenders etc. are of vital importance to the public at large. As such it is crystal clear that the prayer of the petitioner relates to issue of public importance. Steering thoughts in this regard have been gathered from the case Shabbir Hussain v. Executive District Officer (Education), Larkana and 5 others [2012 CLC 16 (Sindh)].
15. So far as non-framing of regulations is concerned, suffice it to say that absence of same cannot have effect of rendering this right as nugatory . Therefore, even if no regulations are framed, this right is available to the citizens.
Needless to mention that in absence of Rules/regulations, it becomes obligation of the court to determine whether request for information in a particular case or denial thereof is reasonable or an order is without lawful authority or not. Reference may be made to the case Muhammad Masood Butt and 3 others v. S.M. Corporation (Pvt.) Ltd. and 5 others (PLD 2011 Karachi 177). Even otherwise it is apprised by C.I.C. that the task of framing Regulations is near to completion. It will be fair enough to expect that this task will be completed at the earliest, preferably in 60 days and the public be apprised of the Regulations by modern devices/means of communication.
16. The question of right to information and providing information by the government functionaries/public bodies has more than once been discussed by the courts of law. In case Province of Punjab v. Qaisar Iqbal and others (PLD 2018 Lahore 198 ) Full Bench of this Court held as under: "61. Right to information and access to information in all matters of public importance is indisputably a fundamental right guaranteed under Articles 19 and 19-A of the Constitution. The right of information stems from the requirement that members of a democratic society should be sufficiently informed that they may influence intelligently the decision which may affect themselves. The people of Pakistan have a right to know every public act, everything that is done in public way, by their public functionaries and chosen representatives. People are entitled to know the particulars of every public transaction, acquire information in all matters of public importance and to disseminate it. It enables people to contribute on debate on social and moral issues and matter of public importance. Without information, a democratic electorate cannot make responsible judgments about its representatives. Freedom of information is the only vehicle of political discourse so essential to democracy and it is equally important in facilitating artistic and scholarly endeavors of all sorts. In sum, the fundamental principle involved here is the people's right to know and freedom of information and freedom of speech and expression should therefore, receive a generous support from all those who believe in democracy and the participation of people in the administration and matters of public importance."
In Hamid Mir and others v. Federation of Pakistan and others (PLD 2013 SC 244) the Hon'ble Supreme Court of Pakistan held that in view of provisions of Article 19-A of the Constitution, Ministry of Information and Broadcasting was obliged to disclose the nature and use of all funds allocated to it including the secret funds. A Division Bench of Sindh High Court in Saifan uz Zaman Khan v. Federation of Pakistan through Secretary , Ministry of Finance, Government of Pakistan, Islamabad and 7 others (PLD 2017 Sindh 559) held that right to information under Article 19-A of the Constitution was of immense value in promoting transparency by ensuring that citizens had knowledge of matters concerning public administration.
17. Right for information has also been recognized in India though not expressly and separately recognized, but the Courts there, have always interpreted right of freedom of expression, under Article 19 of Indian Constitution to include right of information. In case Sheela Barse v. Union of India (AIR 1986 Supreme Court 1773) R.I.T. has been very liberally interpreted, extended and given new dimensions by the Court while observing as under: "We are of the view that the petitioner should have access to information and should be permitted to visit jails, children 's home, remand homes, observation homes, borstal schools and all institutions connected with housing of delinquent or destitute children. We would like to point out that this is not an adversary litigation and the petitioner need not be looked upon as an adversary . She has in fact volunteered to do what the State should have done. "
In case of Suri Dinesh Trivedi v. Union of India etc. (1997 (4) SC 306), the Court Indian Supreme Court held as under:- "In modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the Government which, having been elected by them, seeks to formulate, sound policies of governance aimed at their welfare. "
In case Peoples Union for Civil Liberties v. Union of India (AIR 2003 Supreme Court 2363) the Court even observed as under: "The aforesaid passage leaves no doubt that right to participate by casting vote at the time of election would be meaningless unless the voters are well informed about all sides of the issues in respect of which they are called upon to express their views by casting their votes. Disinformation, misinformation, non-information all equally create a uniformed citizenry which would finally make democracy a mobocracy and farce. "
18. The Punjab Transparency and Right to Information Act, 2013 became effective on 16.12.2013 as such, as noted above, Public Information Officers ought to have been designated at the most by 16 of February, 2014 but, it isth regrettable that, as submitted by the Chief Information Commissioner, so far P.I.O. are yet to be appointed in most of public/government offices.
19. For what has been discussed and observed above, this petition is allowed and the respondent departments are directed to provide requisite information to the petitioner within statutory period of 14 days under the Act. The Chief Information Commissioner , present in Court undertakes to ensure compliance of this order by the respondents.
20. A copy of this order be also sent to the Chief Secretary , Government of the Punjab, to take appropriate steps to ensure implementation of his earlier order s with regard to posting of public information officers and also ensure that the provisions of the Act are implemented in letter and spirit and any violation whereof be seriously noticed. It will be appreciated that on monthly basis progress report of public information officers of respective government departments be summoned and reviewed by the Secretary of Information and Culture Department, Govt. of Punjab. In addition to it an implementation Committee at provincial level may be constituted to examine and improve working of public information officers, take necessary measures for improvement of the working of the departments and to achieve the objects of the Act. Any recommendation/ orders of the C.I.C. in this regard be got implemented by the implementation Committee in public interest.