Thursday July 18, 2024

Four years on: Citizen trying to obtain information from SC without success

By Umar Cheema
June 22, 2023

ISLAMABAD: In April 2019, a citizen filed a request to the Supreme Court of Pakistan under the Right of Access to Information Act, commonly referred to as Right to Information (RTI) law, demanding information about the staff of the apex court and recruitments made to fill the vacant positions.

Four years on, Mukhtar Ahmed Ali has been unable to receive it. The registrar of the SC denied it in the first place. The Pakistan Information Commission ruled in favour of the applicant, directing the provision of information. The registrar went in appeal to the Islamabad High Court against the PIC’s order. The IHC chief justice heard the appeal and dismissed the PIC’s decision. The applicant went into an intra-court appeal and now a two-member bench has dismissed it on the ground that the appeal was time-barred.

Through the RTI application, Mukhtar, who is also a former commissioner of Punjab Information Commission, inquired about the sanctioned strength of the apex court’s staff, number of vacant positions, regular staff members and daily wagers. The applicant had further asked if there was any quota for females, disabled and transgenders as is the case in other public bodies and how many of them had been appointed against the reserved seats.

Any public body as defined in the RTI law is required to respond in 10 working days, extendable for another as many days. The SC has been covered in the definition of public bodies but no response was received. Mukhtar Ahmed Ali, the applicant, then filed a complaint before the appellant body, Pakistan Information Commission (PIC), against the non-provision of information.

A reply received from the SC registrar’s office to the PIC said: “Constitution doesn’t envisage oversight in any form/manner by any other institution/organ of the state on the functioning of the courts.” This was a reference from a letter dated September 30, 2014 written to the secretary law who had referred questions asked to the highest court by the members of parliament.

The Article 2A of the Constitution was also referred to in the letter that said the independence of the judiciary shall be fully secured. “As regards the working of the Superior Courts, the Constitution does not entrust such a function to any outside institution/other organ of the state, rather leaves it to such courts themselves….”

A judgment Government of Sindh v. Sharaf Faridid (PLD 1994 SC 105) was also referred to in the letter to re-emphasize the separation of judiciary from the executive branch.

When the PIC shared the SC reply with the citizen-applicant, he decided to write a rejoinder to contest his right to know. In it, he said the SC had referred to a five-year-old letter written to the law ministry on a separate issue and that his application had not received any attention which he filed as a citizen in exercise of his fundamental right of access to information guaranteed by Article 19-A of the Constitution. He said his right has been further been solidified through Right of Access to Information Act 2017 passed by parliament.

His rejoinder goes on: “The judiciary’s independence and separation from executive is certainly ensured by the Constitution but it doesn’t and shouldn’t be construed to mean that judiciary is not accountable and responsive to citizens of the country….The judiciary has and must enjoy high degree of independence in relation to its judicial functions but it can’t claim to be totally independent and sovereign, as it is very much part of the government that consists of executive, judiciary and legislature and it can’t shun public oversight especially when it comes to use of public funds and exercise of administrative authority in the context of judicial administration.”

As the PIC decided in favour of the applicant through an order issued in November 2021, the SC registrar went to IHC which stayed the PIC decision. The one-member bench of the IHC, headed by the Chief Justice, dismissed the order in April this year. The decision was neither announced at the conclusion of the hearing nor the petitioner was communicated when it was finally issued; he remained unaware and only came to know after a certain time period that the order was uploaded on the website. Getting a certified copy took further time.

Mukhtar went into intra-court appeal. A two-member bench took this up and dismissed on the grounds that the appeal was time-barred, hence the grounds formed basis of the one-member bench’s decision didn’t come under discussion. The one-member bench had dismissed it on the grounds that the mention of the word “court” (upon which the Right of Access to Information Act 2017 applies) doesn’t include the constitutional court and hence the SC doesn’t fall under the purview of this law which Mukhtar contests. Now, Mukhtar will appeal to the SC to direct its registrar to provide the requested information.

Incidentally, Mukhtar has also filed a similar kind of RTI application to the IHC to inquire about the recruitment of the staff of the court. It has not been answered either. Earlier, a somewhat similar issue was dealt with in Punjab when an applicant’s request was not entertained by Lahore High Court. A citizen had inquired about the salary of LHC Chief Justice along with the perks and privileges he enjoyed. As the matter went to Punjab Information Commission due to the refusal of information, the commission directed the high court to make public the requisite information and designate an officer to entertain the information requests submitted by citizens.

The LHC subsequently complied with the order of the commission. In yet another case, Lahore’s district court shared information about the recruitments. According to the RTI laws in Punjab, Sindh and federal level, all the courts are accountable to citizens as they have been defined in the category of public bodies where information can be summoned. Even defence establishments can be asked about the information regarding commercial subsidiaries, according to the federal RTI law.