It’s unthinkable SC will curtail fundamental rights of citizens: Justice Minallah

ISLAMABAD: Justice Athar Minallah has said that it is unthinkable that the Supreme Court will curtail or take away the fundamental rights of citizens, adding the Constitution does not empower the Legislature to weaken or limit the scope of fundamental rights. 

Justice Minallah on Wednesday issued his additional note in Urdu language in a case related to access to information.“I have had the privilege of reading the judgement of my honorable brother, Qazi Faez Isa, Chief Justice, and I see no reason to disagree with or not endorse his clear interpretation of the law and the Constitution; however, I felt it necessary to add my additional opinion,” Justice Minallah wrote.

The judge noted that they have interpreted and held that Article 19-A of the Constitution guarantees every citizen the fundamental right of access to information in all matters of public importance. He noted that the exercise of this right is subject to appropriate restrictions and regulations but the term “appropriate bonds and regulations” does not and cannot empower the Legislature to abridge, weaken or limit the scope of a constitutionally protected right and exclude any public body from the scope of constitutional right.

The judge held that the right given in Article 19-A relates to access to information in all matters of public importance, including information about public institutions.It has been observed that Article 8 of the Constitution unequivocally declares any law void to the extent that it conflicts with the rights conferred under Chapter I, Justice Minallah held, adding that it prevents the State from making any law which takes away or abridges the fundamental rights or which is made in contravention of an express order.

Similarly, the judge noted that Article 7 defines the State and includes the Majlis Shura (Parliament) and Legislative Assemblies of the respective provinces are included. He noted that Majlis-i-Shura (Parliament) while enacting the Act of 2017 could not have intended to take away or curtail the rights under Article 19-A nor could it have completely excluded the Supreme Court from the purview of the Act as well as to deprive a citizen of access to information relating to his activities of public importance.

“It seems that the Supreme Court is not expressly excluded from the ambit of the citizen’s right under Article 19-A,” Justice Minallah held, adding that in respect of the principle of trinity, it is left to the Supreme Court to adopt rules and regulations regarding the implementation of the fundamental right of access to information, as it is the last and highest court of the country which protects these rights.

The judge held that it is vested with extraordinary preliminary jurisdiction under Article 184(3) of the Constitution to issue writs relating to the enforcement of fundamental rights. “An interpretation of the 2017 law that exempts the Supreme Court from exercising a citizen’s right to access information would be tantamount to taking away or curtailing the constitutionally guaranteed right,” the judge held.

He held that in such case and to that extent the Act of 2017 would be void for being essentially inconsistent with the guaranteed right, adding that the 2017 Act should be interpreted in a manner that does not exempt the Supreme Court or the citizen’s right of access to information in the light of the principles of constitutional validity and the principles of protection against invalidity of law.

“It is unthinkable that the Supreme Court will curtail or take away the fundamental rights of citizens,” Justice Minallah held, adding that it is also inconceivable that the highest forum, which is entrusted with the heavy responsibility of protecting fundamental rights, should refrain from curtailing or enforcing these rights.

Justice Minallah noted that if citizens perceive that defenders of fundamental rights are complicit in restricting their own rights, public confidence will be lost and the independence of the judiciary will be weakened.

“The Supreme Court has no control over the sword or the treasury and its strength and power depends on the confidence of the people,” the judge held, adding that no citizen should go to the Supreme Court thinking that denying an access to information request amounts to a pretext for withholding public information. He noted that the Supreme Court enforces fundamental rights by ensuring transparency and openness in the actions and decisions of other institutions.

Thus, the judge maintained, the right of access to information is a bulwark against malpractices and it enables citizens to know how services are being provided to them and how their resources are being used and spent. “It empowers citizens and promotes democratic values and principles of participation. Internal regulations, information regarding human resources, benefits and facilities available to children and employees, budget allocated to the Supreme Court and its expenditure are matters of public importance and are therefore subject to citizen scrutiny,” Justice Minallah held.

The judge noted that the Supreme Court is regarded as a model for others in terms of fiscal discipline and implementation of the enforced policies of transparency and openness. “It is also understood that the Supreme Court will apply the principles more strictly in its administrative cases than it enunciates for others,” he held, adding that the Supreme Court has no reason to reject an Access to Information request unless it falls within the exceptions specified under the 2017 Act. He held that reluctance and denial legitimately create suspicion and negative perception, thereby undermining the independence of the judiciary.

Thus, the judge maintained, to promote the independence of the judiciary, public trust and confidence in the transparency and integrity of administrative actions, decisions and policies is essential. “In order to restore public confidence, the Supreme Court will have to adopt the principle of proactive/ encouraging self-availability of information,” the judge held and stressed that all information related to matters of public importance should be uploaded on its website or through other means so that citizens should not be required to request the provision of such information.

“It is not improper for the Constitutional Courts to withhold or reject a request for access to information under Article 19-A of the Constitution,” he held, adding that the Supreme Court has to set an example for others, ensuring provision of information rather than withholding information thereby violating a given fundamental right enshrined in the Constitution under Article 19-A.

“The above mentioned is my additional note in support of my interpretation of the law and the conclusion recorded in the judgement of my learned brother, Qazi Faez Isa, Chief Justice,” Justice Minallah concluded.