Right to Information Act: SC allows sharing info about its staff

ISLAMABAD: The Supreme Court on Monday allowed sharing information regarding its staff members and held that refusing to provide information is to be justified by the persons, authority or institution withholding it.

A three-member bench of the apex court headed by Chief Justice Qazi Faez Isa and comprising Justice Amin-ud-Din Khan and Justice Athar Minallah allowed the appeal of the petitioner Mukhtar Ahmed Ali seeking information regarding the staff members of the apex court under the Right of Access to Information Act.

“In the present case, there is no reason why the information sought by the petitioner should not be provided, nor can the provision of such information be categorised as being contrary to the public interest,” says the 10-page judgement, authored by Justice Isa.

The court held that the information sought by the petitioner should have been provided to him. “Therefore, for the reasons mentioned above, this petition is converted into an appeal and is allowed by directing the Registrar of the Supreme Court to provide the said information to the petitioner within seven days,” the verdict added.

The court also directed its office to refund to the petitioner the court fee paid by him on this petition and on the intra-court appeal filed in the high court.

The court held that in view of the public importance of this matter, and as this is the first case of its kind decided by the Supreme Court, this judgement is to be translated into Urdu, adding that the English version shall be treated as this court’s decision in terms of Article 189 of the Constitution.

The court held that Article 19A envisages the placing of reasonable restrictions on the provision of information, but refusing to provide information is to be justified by the person, authority or institution withholding it.

“Transparency brings with it the added benefit of introspection, which benefits institutions by promoting self-accountability. Article 19A stipulates that information be provided subject to regulation and reasonable restrictions imposed by law,” said the judgement.

The court, however, held that there is no law which attends to the Supreme Court in this regard nor has the apex court itself made any regulations.

“Needless to state that if a law is enacted and/ or regulations made, requests for information would be attended to in accordance therewith and in accordance with Article 19A,” the verdict held.

Justice Athar Minallah also penned his additional note in the judgement. The petitioner had filed an appeal against the judgement dated 13.06.2023 passed by the Islamabad High Court in ICA No 190/2023.

The court noted down in its order that a letter dated 10 April 2019 was addressed to the Supreme Court Registrar through which the petitioner sought the following information:

a) Total sanctioned strength of staff members of Supreme Court of Pakistan (category-wise) against different positions/ pay-scales i.e. from pay scale 1 to 22.

b) Total vacancies in the Supreme Court of Pakistan against different pay-scales/ positions and dates since which these positions have been lying vacant.

c) Number of staff members who are not regular but have been engaged on daily-wages basis or through short-term or long-term contracts against various positions/ pay-scales.

d) Number and types of positions created a new since January 1, 2017. Total number of female staff members against various positions/ pay-scales. The response may distinguish between the short-term/ temporary staff members and regular ones.

f) Total number of persons with disabilities working with Supreme Court of Pakistan.

The response may distinguish between the short-term/ temporary staff members and regular ones.

g) Total number of transgender persons working with Supreme Court of Pakistan.

h) A certified copy of the latest approved Service Rules of the Supreme Court of Pakistan.’

The court noted that the petitioner stated that as a citizen of Pakistan it was his fundamental right bestowed by Article 19A of the Constitution to receive the information which he had sought.

He also relied upon the Right of Access to Information Act 2017. The petitioner stated that as his request remained unattended, he submitted an appeal to the Pakistan Information Commission Under section 17 of the Act on 6 May 2019, said the judgement.

“We have heard the petitioner and the learned AG and have examined the provisions of the [Right of Access to Information] Act and the Constitution and we are in agreement with the learned AG that the Act clearly does not apply to the Supreme Court of Pakistan,” said the judgement, adding that the appeal preferred by the petitioner before the [Information] Commission was not maintainable and to such extent the learned Single Judge of the High Court had correctly determined the matter. However, the matter does not end there.”

The court noted that the question of whether the petitioner can seek information under Article 19A of the Constitution still needs consideration and the Supreme Court is not excluded from the purview of Article 19A of the Constitution, and information of ‘public importance’ can be sought thereunder.

“It now needs consideration as to what constitutes public importance,” said the judgement, adding that the phrase ‘public importance’ is mentioned in a number of places in the Constitution, but it does not define it.

The verdict held that the phrase, however, has been interpreted by the Supreme Court. The court noted that in the case of Manzoor Elahi v Federation of Pakistan, it was held that: “The term ‘public’ is invariably employed in contradistinction to the terms private or individual, and connotes, as an adjective, something pertaining to, or belonging to, the people; relating to a nation, state, or community.

“In other words, it refers to something which is to be shared or participated in or enjoyed by the public at large, and is not limited or restricted to any particular class of the community,” it said.

By now, the court noted, over 100 countries have some form of freedom of information legislation and that the United States Supreme Court has held it to be concomitant with democracy, accountability and safeguarding against corruption.

The court held that high standards were set in early Islam and those governing had to provide information, adding that the second caliph Hazrat Umar bin Al-Khattab (may Allah be pleased with him) was questioned about the quantity of material used in the making of his shirt; he did not object to being questioned and told his son, Abdullah bin Umar, to explain, who said that in view of his father’s large size, extra material which was used to make his shirt was given by him.

Meanwhile, in his additional note, Justice Athar Minallah held that the right under Article 19 A is related to access to information in all matters of public importance, including information regarding public bodies.

He noted that a plain reading of the Right of Access to Information Act 2017 shows, prima facie, that the Supreme Court has not been expressly excluded from the definition of ‘public bodies’ under section 2 (ix).

The judge held that the definition of the expression ‘public body’ in sections 2(i) and 2(h) of the Sindh Transparency and Right to Information Act 2019 and the Punjab Transparency and Right to Information Act 2013 respectively includes the high courts in both the provinces to be amenable to the right to access law.

Justice Minallah noted that the Majlis-e-Shoora (Parliament), therefore, while promulgating the Act of 2017 could not have intended to take away or abridge the right under Article 19A by an outright and indiscriminate exclusion of the Supreme Court and thus barring a citizen from having access to information relating to its activities of public importance.

“It appears that the Supreme Court has not been expressly excluded from the purview of the exercise of the right of a citizen under Article 19A,” the judge noted, adding that as deference to the principle of trichotomy, the adoption of the principles and rules relating to enforcement of the fundamental right of access to information seems to have been left to the Supreme Court, since it enjoys the status of the final and highest court in the country to protect and guard against any infringement of the fundamental rights of the citizens.

“It is vested with extraordinary original jurisdiction under Article 184 (3) of the Constitution to grant writs relating to the enforcement of fundamental rights,” the judge held, adding that any interpretation of the [Information] Act of 2017, having the effect of giving immunity to the Supreme Court from the exercise of the right of a citizen to have access to information would amount to abridging and taking away a constitutionally guaranteed right.

“The Supreme Court exercises the extraordinary and unique power of judicial review to examine the actions of other branches of the State, the Legislature and Executive, on the touchstone of the infringement of fundamental rights,” Justice Minallah noted, adding that it is inconceivable that the Supreme Court would abridge or take away the fundamental rights of the citizens.

He further noted that the Supreme Court has no control over the sword or the purse and its power and strength is solely based on public confidence.

The judge further noted that the Supreme Court enforces the fundamental rights by ensuring that actions and decisions of others are transparent and open.

“The right of access to information is a bulwark against corruption and corrupt practices,” Justice Minallah held, adding that it enables the citizen to know how they are being served and how the resources that belong to them are being utilised and spent.