Rule of Law and Access to Information, Public Participation in
Decision-Making and Access to Justice in Environmental
Matters in Pakistan
Dr. Parvez Hassan
(Pakistan)
Paper presented at the First Asia Pacific International Colloquium on Environmental Rule
of Law organized by the United Nations Environmental Programme (UNEP), and held in
Kuala Lumpur, Malaysia, on 11-12 December 2013
Table of Contents
A. Introduction .................................................................................................................................1
B. Rule of Law in Pakistan ..............................................................................................................3
1. Constitutional Case Law ........................................................................................................3
2. Freedom of Information and the Constitution .......................................................................9
3. Federal and Provincial Legislation on Freedom of Information .........................................10
4. Comparison of the 2002 Ordinance and the Proposed Right to Information Act, 2010 ......11
5. The Catalyst of Change: Khyber Pakhtunkhwa Right to Information Act, 2013 ................13
C. Conclusion.................................................................................................................................15
D. Recommendations .....................................................................................................................16
1. Regionalize Environmental Protection ................................................................................16
2. Capacity Building of Judges, Prosecutors and EPAs...........................................................16
3. Compilation of Soft Law Instruments..................................................................................17
4. Updating of UNEP Compendium of Decisions ...................................................................17
Rule of Law and Access to Information, Public Participation in
Decision-Making and Access to Justice in Environmental
Matters in Pakistan*
Dr. Parvez Hassan**
A. Introduction
In February 2013, the UNEP Governing Council adopted the first internationally negotiated
document to establish the term “environmental rule of law”. This Colloquium seeks to help
develop and implement environmental rule of law and to define a new future for environmental
justice and law in the Asia Pacific Region and beyond. My presentation welcomes the important
commitment and work of UNEP in this field but also raises the issue as to whether it is helpful at
this stage to coin or validate the term “environmental” rule of law when in the experience of
several national jurisdictions, the terms “rule of law” has been adequate and resilient to
accommodate emerging challenges in environmental matters.
As a lawyer from Pakistan who has handled a lot of environmental cases1 and who routinely
faces the value of precedent and prior interpretation, I raise the question as to whether the
addition of “environmental” to rule of law will make it easier or more difficult for us to handle
matters in courts.
In arguing an “environmental” rule of law, are we not jeopardising the safety of the settled
interpretation of rule of law and taking on a burden of explaining and seeking the interpretation
of a new category of rule of law which is specific to the environment.
*
Paper presented at the First Asia Pacific International Colloquium on Environmental Rule of Law organized by the
United Nations Environmental Programme (UNEP), and held in Kuala Lumpur, Malaysia, on 11-12 December
2013. The research assistance in the writing of this paper by my associates, Ms. Myra Khan, Barrister-at-Law, and
Ms. Razia Monnoo, is gratefully acknowledged.
**
B.A. (Punjab), LL.B. (Punjab), LL.M. (Yale), S.J.D. (Harvard), Senior Advocate, Supreme Court of Pakistan,
Senior Partner, Hassan & Hassan (Advocates), Lahore, and President, Pakistan Environmental Law Association.
1
See, generally, Parvez Hassan, The Role of the Judiciary and Judicial Commissions on Sustainable Development
Issues in Pakistan, in 37/2-3 Environmental Law & Policy 185-193 (2007), also in 2006 All Pakistan Legal
Decisions, Journal, at 45-59; see also Parvez Hassan, The Role of Commissions in Public Interest Environmental
Litigation in Pakistan, 2011 All Pakistan Legal Decisions, Journal, at 78-89; Parvez Hassan, Environmental Rights
as Part of Fundamental Rights: The Leadership of the Judiciary in Pakistan, in A. Benjamin (ed.), Law, Water and
the Web of Life: A Tribute to Parvez Hassan 199-214 (Law for a Green Planet Institute, Brazil, 2003); also in
Environmental Rights as part of Fundamental Rights: The Leadership of the Judiciary in Pakistan, in A. Postiglione
(ed.), The Role of the Judiciary in the Implementation and Enforcement of Environment Law, 135-159 (Bruylant
Bruxelles 2008). See also Chapter on Pakistan (with Jawad Hassan), in L. Kotze and A. Paterson (eds.), The Role of
the Judiciary in Environmental Governance: Comparative Perspectives, 381-409 (Wolters Kluwer 2009).
1
Questions could also be raised as to why there is a need for coining new terms when the generic
concept of rule of law would be broad enough to include the specificities of justice in
environmental matters.
The term “rule of law” has been used for centuries as well understood and all-encompassing in
the principal legal systems. Its elasticity has enabled it to subsume equality before the law,
supremacy of the law, accountability to the law, fairness in the application of the law, separation
of powers, independence of the judiciary, participation in decision making, good governance,
legal certainty, transparency and procedural rights such as a right of a personal hearing in
adjudications. Most common law systems resonate with phrases such as audi alteram partem as
an essential part of the rule of law. And, the categories continue to grow and blossom under the
munificence of this banyan tree. For all this time, it was not found necessary to qualify or modify
this over-arching comfort to human rights and human dignity. Is there really a compelling need
to do so now!
And, if today, we insist on “environmental” rule of law, would other sectors, disciplines and
regimes not be seeking, for example, admiralty rule of law, anti-trust rule of law,
telecommunication rule of law, financial services rule of law, criminal rule of law, and even
traffic rule of law.
I hope that this Colloquium will not accept the term environmental rule of law as a fait accompli
inspite of the UNEP Governing Council but subject this choice to a thorough discussion to assess
different points of view. A debate on this by judges, legal scholars and practicing lawyers may
benefit this important decision.
I would add that when we first handled environmental litigation in Pakistan, we benefited from
the opening of precedents provided by public interest litigation (PIL) but deliberately avoided
terming our efforts as public interest environmental litigation (PIEL) so that the settled law on
PIL may automatically benefit us. The environmental decisions affecting public interest are
described in the legal literature as PIEL, but PIEL has, to my knowledge, not been argued, or
judicially interpreted, as a distinct category.
2
The temptation to coin new words in environmental literature came up for critical discussion at
the Second Asian Judges Symposium on the Environment sponsored by the Asian Development
Bank in Manila last week. Judges, lawyers and scholars reacted to the use of “natural capital” by
ADB instead of “natural resources” on the basis, among others, that the use of “natural
resources” had a long and settled history in the U.N. General Assembly Resolution on Permanent
Sovereignty over Natural Wealth and Resources, 19622 and in its reiteration in many soft law
instruments such as the Stockholm Principles (1972) and the Rio Declaration on Environmental
and Development (1992).
I want to join in this precautionary approach against new terms when existing terms have the
benefit of historical acceptance.
B. Rule of Law in Pakistan3
1. Constitutional Case Law
Each of the earlier Constitutions provided, and the present Constitution of Pakistan, 1973 (the
“Constitution”), provides, an unequivocal vision for this country: a system of governance
dedicated to social justice, fundamental rights, inter-provincial co-ordination and harmony and
anchored on principles of federalism and on separation of powers between the Executive,
Legislature and the Judiciary. A specific and separate role was visualized and provided for each
of these important organs of the State. The landmark case, Al-Jehad Trust vs. Federation of
Pakistan4, explains the doctrine of separation of powers in the following words:
… the Legislature has to legislate, the Executive has to execute laws and the Judiciary
has to interpret the Constitution and laws. The success of the system of governance can
be guaranteed and achieved only when these pillars of the State exercise their powers and
2
See Parvez Hassan, Permanent Sovereignty over Natural Wealth and Resources, 1962, a paper submitted for
Professor Myres S. McDougal at Yale Law School (Spring Term 1963).
3
This Section has been developed from Parvez Hassan, Environmental Protection, Rule of Law and the Judicial
Crisis in Pakistan, 10 (Issues 3 and 4) Asia Pacific Journal of Environmental Law, 167-182 (2007).
4
PLD 1996 Supreme Court 324.
3
authority within their limits without transgressing into the field of the others by acting in
the spirit of harmony, cooperation and coordination.5
However it was the Judiciary which was made responsible for checking the transgressions of the
Constitutional provisions by either the Executive or the Legislature. As commented by Mr.
Ajmal Mian, Chief Justice of the Sindh High Court, as he then was (and later to be the Chief
Justice of Pakistan):
I may observe that 1973 Constitution was framed with consensus of all the political
parties and the members of the National Assembly. It contemplated trichotomy of power
between the three organs of the State, namely, the legislature, the executive and the
judiciary. Each organ of the State was to function/operate within the bounds specified in
the Constitution. The judiciary was assigned very important role to play, namely, to act as
the Watch Dog and to ensure that none of organs or the Government functionaries acts in
violation of any of the provisions of the Constitution or of any other law. Since the above
role entrusted to the judiciary under the Constitution was very delicate, it was envisaged
that the judiciary would be independent and separate from the other organs of the State.6
This important “watch dog” role is, crucially, enabled by provisions in the Constitution that
secure the independence of the judiciary.
Chief Justice Hamoodur Rahman, speaking for the Supreme Court of Pakistan in State vs. Ziaur
Rahman7, explained that the power of judicial review given to the superior courts under the
Constitution is not to be construed as the supremacy of the judiciary over the Executive or the
Legislature:
In exercising this power [of review], the judiciary claims no supremacy over other organs
of the Government but acts only as the administrator of the public will. Even when it
declares a legislative measure unconstitutional and void, it does not do so, because, the
judicial power is superior in degree or dignity to the legislative power; but because the
5
6
7
Id. at 399.
Sharaf Faridi vs. Federation of Pakistan, PLD 1989 Karachi 404, at 427–28.
PLD 1973 Supreme Court 49.
4
Constitution has vested it with the power to declare what the law is in the cases which
come before it. It thus merely enforces the Constitution as a paramount law whenever a
legislative enactment comes into conflict with it because, it is its duty to see that the
Constitution prevails. It is only when the Legislature fails to keep within its own
Constitutional limits, the judiciary steps in to enforce compliance with the Constitution.8
The Objectives Resolution, the preamble, Article 2A, and Article 175 of the 1973 Constitution
provide for the independence of the judiciary. There are other provisions that support and further
such independence. These include the detailed provisions with regard to the composition of
superior courts, the qualification and eligibility for appointment of judges, and the conditions of
their service. Even the removal of judges is specifically provided through the Supreme Judicial
Council under Article 209.
A former Chief Justice of Pakistan, Mr. Saiduzzaman Siddiqui, emphasised the central role of
the appointment of judges in the independence of the judiciary in Asad Ali vs. Federation of
Pakistan9:
Right of access to impartial and independent Courts/Tribunals is a fundamental right of
every citizen. The exercise of this right is dependent on the independence of judiciary
which can be secured only through appointment of persons of high integrity, repute and
competence, strictly in accordance with the procedure prescribed under the Constitution
to the high office of the Judges of superior Courts. The selection of a person to the high
office of the Chief Justice of Pakistan is a pivotal appointment for maintaining the
independence of judiciary and for providing a free and unobstructed access to impartial
and independent Courts/Tribunals to the ordinary citizens. Therefore, any deviation from
the method prescribed under the Constitution for appointment to the high office of Chief
Justice of Pakistan, would give rise to the infringement of the right of a citizen to have
free, fair and equal access to an independent and impartial Court/Tribunal, thus violating
the rights guaranteed under Articles 9 and 25 of the Constitution.10
8
9
10
Id. at 70.
PLD 1998 Supreme Court 161.
Id. at 189
5
Another former Chief Justice of Pakistan, Mr. Nasim Hasan Shah, summed up the consensus of
jurists on the independence of the judiciary:
(a) that every Judge is free to decide matters before him in accordance with his assessment
of the facts and his understanding of the law without improper influences, inducements
or pressures, direct or indirect, from any quarter or for any reasons; and
(b) that the judiciary is independent of the Executive and Legislature, and has jurisdiction,
directly or by way of review, over all issues of a judicial nature.11
The matter of the separation of the judiciary and its independence from the executive came up
for consideration before the Sindh High Court at Karachi in Sharaf Faridi vs. Federation of
Pakistan12. The Court held in this case that it is incumbent upon the Government, under Articles
175 and 203 of the Constitution, to bifurcate the magistracy into judicial and executive branches
and to place the magistracy under the exclusive administrative control of the relevant High
Court. The Court also dealt with the matter of the transfer of judges which could be used to
victimize independent judges. It held that the transfer of judges from one High Court to another
or to the Federal Shariat Court should be with the consent of the judges. The decision of the
Sindh High Court was upheld by the Supreme Court of Pakistan in Government of Sindh vs.
Sharaf Faridi13. The Supreme Court highlighted the need for the financial autonomy of the
judiciary as an important element in its meaningful independence.
In Al-Jehad Trust vs. Federation of Pakistan14, and Asad Ali vs. Federation of Pakistan15, the
Supreme Court further strengthened the independence of the judiciary by making it obligatory
for the President to accept appointments to the vacant posts to fill vacancies in the posts of
judges in the Supreme Court and High Courts on the recommendations of the Chief Justice
unless the President recorded “sound and valid reasons” to the contrary. Similarly, the
appointment of Chief Justice is to be by seniority except for “concrete and valid reasons”. The
11
12
13
14
15
Government of Sindh vs. Sharaf Faridi, PLD 1994 Supreme Court 105, at 107.
Supra note 6.
Supra note 11.
Supra note 4.
Supra note 9.
6
Supreme Court also held, in these cases, that the transfer of a judge from a High Court to the
Federal Shariat Court, without the consent of the judge, shall be violative of the Constitution. All
these safeguards were intended to check political influence being exercised in judicial
appointments and transfers.
The classical formulation of the supremacy of the Rule of Law is included in Article 4 of the
Constitution:
4. Right of individuals to be dealt with in accordance with law, etc. (1) To enjoy the
protection of law and to be treated in accordance with law is the inalienable right of every
citizen, wherever he may be, and of every other person for the time being within
Pakistan.
(2) In particular—
(a) no action detrimental to the life, liberty, body, reputation or property of any
person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not
prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him
to do.
It is one of the most valuable virtues of the Constitution that it provides extensively for the
powers and functions of the superior judiciary. The power of judicial review and the other wideranging powers under Article 199 and Article 184 with respect to fundamental rights have given
a broad sweep to the role of the superior courts. A complete Chapter I in Part II deals with
Fundamental Rights that are enforceable by the High Courts under Article 199(1)(c) and by the
Supreme Court when the Fundamental Rights present questions of public importance (Article
184). These rights cannot be abridged (Article 199(2)).
7
The Universal Declaration of Human Rights, adopted by the United Nations General Assembly
in 1948 had set a “common standard of achievement” for the global community and had
catalysed the formulation and development of the international protection of human rights.
Included in this catalogue of human rights were rights to life, liberty, security, freedom from
arbitrary arrest and detention, right to a fair trial, freedom of association, religion, and
expression. These declaratory principles were concretized in treaty obligations under the
International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights, both adopted in 1966.
In the meantime, at regional levels, the European Commission and the European Court of Human
Rights had developed extensive jurisprudence, under the European Convention of Human
Rights, to internationalize the protection of human rights. Similarly, the Inter American
Commission and the Inter American Court of Human Rights had promoted the American
Convention of Human Rights across national boundaries in the region.
Human Rights had, therefore, come a long way and, when the National Assembly of Pakistan
undertook the drafting of the Constitution in the early 1970’s, it was inevitable that it could not
be oblivious to the international trends towards strengthening Rule of Law in domestic regimes.
Influenced by these developments, at the regional and international level and, undoubtedly, by
national experiences, the 1973 Constitution made a commendable commitment to the declaration
and protection of a broad range of fundamental rights covering the right to life, safeguards
against arrest and deletion, right to dignity, freedom of movement, freedom of association and
assembly, freedom of trade, business, or profession, freedom of speech and freedom to profess
religion, and the right to acquire, hold and dispose of property. Equality of citizens and
provisions on non-discrimination are also included in the Fundamental Rights.
For individuals and members of Pakistan’s civil society, the superior courts have been a major
bulwark against encroachments of their fundamental rights. The country’s law reports are replete
with examples when the judiciary used the Constitutional provisions to prevent oppression,
usurpation and injustices. Particularly commendable has been the activist suo motu interventions
8
of its superior courts, in public interest litigation16, to protect the poor, the voiceless and the
marginalized sections of our communities, or address pressing social issues such as
environmental degradation, malpractices in the educational system, bonded labour, child abuse,
and victims of gender exploitation. In many ways, this experience in the protection of
Fundamental Rights17 and the Rule of Law has been the finest hour of Pakistan’s judiciary.
2. Freedom of Information and the Constitution
Article 19A was inserted in the Constitution by Section 7 of the Constitution (Eighteenth
Amendment) Act, 2010:
7. Insertion of new Article in the Constitution:
In the Constitution, after Article 19, the following new Article shall be inserted, namely:
“19A. 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.”
Similarly, the Eighteenth Amendment also added Article 10A on the right to a fair trial and due
process:
10A. Right to fair trial.—For the determination of his civil rights and obligations or in
any criminal charge against him a person shall be entitled to a fair trial and due process.
Article 19A confers on all citizens a right to have access to information in all matters of public
importance, subject, however, first to regulations and secondly to reasonable restrictions by law.
This right would be essential for a fair trial and due process guaranteed by Article 10A. Nonframing of the regulations cannot have the effect of rendering the right under Article 19A as
nugatory. Therefore, even if no regulations are framed, this right is available to all the citizens. In
the absence of regulations and in the absence of restrictions, the court is required to determine
16
See, generally, remarks of Parvez Hassan, Securing Environmental Rights through Public Interest Litigation in
South Asia, at the Global Judges Symposium on Sustainable Development and the Role of Law, at Johannesburg,
South Africa, 18-20 August 2002, organized by the United Nations Environment Program, and published with Azim
Azfar in 22.3 Virginia Environmental Law Journal 216-236 (2004)). See also Nasim Hasan Shah, Public Interest
Litigation as a Means of Social Justice, PLD 1993 Journal 31.
17
The observance of religious freedoms under our Constitution has been dealt in an earlier article, Parvez Hassan,
Religious Freedom: A Comparative Analysis of the U.S. and Pakistan Constitutions, PLD 1987 Journal 157-170.
9
whether a request for information in a particular case or a denial of information in a particular
case is reasonable or with lawful authority or not. But the Article also provides that it must be in
“matters of public importance”. Accordingly, it must be a matter in which the public at large or
at least a substantial section of population is interested.18
3. Federal and Provincial Legislation on Freedom of Information
Under the Constitution of Pakistan, the Federal Government and each of the four (4) Provincial
Governments can promulgate an Ordinance at the time when the applicable legislature is not in
session and such an Ordinance continues to exist and apply as law for a stipulated period during
which the legislature must adopt the Ordinance, with or without amendments, as an Act failing
which the Ordinance lapses.19
Led by international developments in this field and, particularly, after the resounding impact of
the Convention to Access to Information, Public Participation in Decision-Making and Access to
Justice in Environmental Matters, Aarhus, Denmark, 1998 (the “Aarhus Convention”), the
President of Pakistan, in 1997, promulgated the Freedom of Information Ordinance. The
Ordinance was not enacted by the Parliament and lapsed. But the energy around it survived.
In 2001, the Asian Development Bank (“ADB”) approved a comprehensive action plan for
Pakistan that covered the judicial and administrative reform in the country. The programme to
improve the state of access to justice to the people included legislative arrangements for the
Freedom of Information. As a part of the programme, the military government of General Pervez
Musharraf promulgated the Freedom of Information Ordinance in October 2002 (the
“Ordinance”). This Ordinance was later validated by the Parliament through a Constitutional
amendment.
The law, however, remained inoperative for two (2) years because the rules to implement the law
were yet to be formulated. Finally, after a continuous and comprehensive campaign of civil
society and other stakeholders, the rules were formulated and notified in 2004. Though the
18
19
See, Muhammad Masood Butt vs. S.M. Corporation (Pvt.) Limited, PLD 2011 Karachi 177.
Articles 89 and 128.
10
Ordinance was promulgated and rules have been formulated, the exercise of rights included in
them remained limited with multiple categories of exempted information.20
Like Section 19 of the Ordinance, legislation in Balochistan (Freedom of Information Act, 2005)
and Sindh (Sindh Freedom of Information Act, 2006), entrusted the role of an appellate body to
the office of the Ombudsman having no power to impose penalty on public officials for
unlawfully delaying or denying access to information. The provincial legislation merely mirrored
the complacent and lackluster approach of the federal legislation. In comparison, the recent
Khyber Pakhtunkhwa Right to Information Act, 2013 (the “RTI-KPK”) provides a dynamic
model for greater access to information. The RTI-KPK has received great accolades around the
world and is acclaimed as holding a high position in the global right to information law rankings.
Experts at the World Bank have appreciated this move and note that the legislation contains “all
the features that are vital for a strong right to information law”.21
Prior to the promulgation of the Ordinance, the issue of public documents/ information (Articles
85 and 86) was governed under the provisions of Qanoon-e-Shahadat Order, 1984 (the “Order”).
However, the provisions of the Order could not serve the purpose of ensuring transparency as
they were mainly focusing on evidentiary value of documents in the courts. Moreover, the
presence of secrecy laws did not allow people to take benefit from this provision. Public debate
on the ineffectiveness of the rights/access to information shifted the tide in favour of amending
the current laws and increasing the ambit of rights of information to the public.
4. Comparison of the 2002 Ordinance and the Proposed Right to Information Act, 2010
In November 2010, the post-Musharraf Government proposed the Right to Information Act (the
“Proposed Act”). The Proposed Act appears to be an extension of the Ordinance with negligible
differences in the content as detailed below.
20
21
Sections 14 –18 of the Ordinance.
Umar Cheema, “KPK a Catalyst for Change”, The News, 20 August 2013
11
The Proposed Act provides that it should be interpreted so as to promote the right to know and,
like the Ordinance, to facilitate and encourage, promptly and at the lowest reasonable cost, the
disclosure of information (Section 3(ii)(a) and (b)).
In the Proposed Act, as in the Ordinance, the list of exemptions to access to information is long
with the result that it is more likely to exclude the information than provide it. The list continues
to include: (1) exemption from disclosure of information that could likely cause grave and
significant damage to the interests of Pakistan in the conduct of international relations (Section
15(1)),22 and (2) disclosures harmful to law enforcement (Section 16), privacy and personal
information (Section 17) and economic and commercial affairs (Section 18).
However, the Proposed Act does attempt a dynamic approach such as in its Section 5 which
introduced the concept of a “Principal Officer” (Section 2(h)) of each public body. The Principal
Officer, as provided in Section 5(ii) is required to, within six (6) months, cause to be published in
the Official Gazette (or special publications) and immediately make available for inspection and
copying, information including, inter alia, description of the organization and functions of public
bodies, statues, rules, regulations, orders, applicable to the public body, substantive or procedural
rules and regulations of general application, conditions in respect of acquiring licenses, permits,
consents and other such information.
Section 8(1) of the Proposed Act provides that all exclusion and classification must be
accompanied by a record of reasons for such exclusion.
In respect of Section 19, Recourse to the Mohtasib and Federal Tax Ombudsman, both
legislations continue to have similar provisions that provide that if the applicant is not provided
or refused the information declared as public record under Section 7, the applicant may, within
thirty (30) days of the prescribed time for giving such information, file a complaint with the head
of the public body. On failing to get the requested information, within the prescribed time, the
applicant may file a complaint with the Mohtasib and in cases relating to Revenue Division, its
subordinate departments with the Federal Tax Ombudsman.
22
In respect of such disclosure, the difference between the two (2) legislations is that the Proposed Act provides
that reasons for deeming the information as exempt have to be explained by the withholding party.
12
The Mohtasib or the Federal Tax Ombudsman, as the case may be, may, after hearing the
applicant and the designated official, direct the designated official to give the information or, as
the case may be, the copy of the record or may reject the complaint (Section 19(2)).
Section 19(2) of the Proposed Act, however, provides that all such applications mentioned above
shall be disposed of within fourteen (14) days of being filed, which puts the burden on the
authorities to ensure timely decisions. Section 19(3) of the Proposed Act further provides that,
the complainant may challenge the decision of the Mohatasib or the Federal Tax Ombudsman, as
the case may be, in the High Court of competent jurisdiction and in the event of an adverse
decision, appeal to the Supreme Court.
As per Section 20 of the Proposed Act, as also provided in the Ordinance, where a complaint is
found to be malicious, frivolous, vexatious, the complaint may be dismissed by the Mohtasib,
and a fine may be imposed on the complainant up to an amount not exceeding ten thousands
rupees (Re. 10,000). This imposition of penalty provides a deterrent and discourages applicants
to pursue a case against a department that denies information.
The Proposed Act continues to include weak disclosure provisions, vague definitions of
“information” and “national security” (the definition of which excludes a large amount of
information) and provides a complicated process of filing information requests that could
potentially result in discouraging applicants.
5. The Catalyst of Change: Khyber Pakhtunkhwa Right to Information Act, 2013
With the inclusion of Article 19A in the Constitution, the right to information was
constitutionally acknowledged as a fundamental right instead of just a statutory right as provided
by the earlier legislations.
In September 2013, the Khyber Pakhtunkhwa (“KPK”) Assembly passed the RTI-KPK, which
meets all the standards of effective right to information legislation such as maximum disclosure
(Sections 3, 5 and 7); minimal exemptions (Section 14); minimum cost for the requested
13
information (Section 13); and disclosure taking precedence over exemption without providing a
blanket exemption in any particular case. The law provides that even if the information pertains
to categories of exempted information, there should be a strong presumption for disclosure if the
information exposes corruption, criminal wrongdoing, other serious breaches of the law, human
rights abuse, or serious harm to public safety or the environment (Section 14(e)). Section 3
provides that no requester shall be denied access to any information or record and that the RTIKPK shall be interpreted so as to advance the purposes of the RTI-KPK and facilitate the
disclosure of information at the lowest reasonable cost.
Under Section 24, the Government shall within a period of one hundred and twenty (120) days,
establish an Information Commission under the RTI-KPK. The Information Commission shall be
an independent body which enjoys operations and administrative autonomy from any other
person or entity, including the Government or its agencies (Section 24(2)). The functions of the
Information Commission shall be primarily to receive and decide on complaints (Section 25(1))
and perform all tasks that are necessary to do the same (Section 25(2)).
Section 26 provides the Information Commission with all, direct or incidental, powers that are
necessary to undertake the functions as provided by the RTI-KPK including compliance with the
law. The Information Commission shall, inter alia, have the power to (1) hold, acquire and
dispose of property; (2) to conduct inquires, and have the powers of a Civil Court under the Code
of Civil Procedure, 1908; (3) order a public body to disclose information (Section 26 (3)(a)),
impose a fine on any official who willfully acts to obstruct any activity under the RTI-KPK
(Section 26 (3)(b)).
Under Section 28 of the RTI-KPK, it is a criminal offence to (a) willfully obstruct access to any
record with a view to prevent the exercise of a right, (b) obstruct the performance by a public
body, (c) interfere with the work of the Information Commission, or (d) destroy a record without
lawful authority. Anyone committing such an offence is liable to a fine or imprisonment (Section
28(2)).
There is an obligation on public bodies under Section 4 of the RTI-KPK to ensure that its records
are properly maintained so as to enable compliance with the RTI-KPK and any relevant rules or
14
standards established by the Information Commission. Section 5 provides the categories of
information that shall be duly published by public bodies in an up-to-date fashion and a manner
that ensures accessibility to all. Section 5(2) enforces a greater obligation on public bodies to
publish an annual report highlighting what they have done to implement their obligations under
the RTI-KPK and detailed information about the requests received and how they have processed
them. This annual report is forwarded to the Chief Secretary, KPK and to the Information
Commission to take such actions as they deem fit. This promotes transparency in the system and
encourages the authorities to provide access to information. Section 8 provides that “all
reasonable steps” shall be taken to assist any requester who needs assistance.
The applicability of the RTI-KPK is wide in scope applying to government departments, the
legislature, chief minister/governor secretariat, lower courts, private bodies funded by
government and private bodies providing public services (Section 3 and 2(i)).
As per Section 13(1), an applicant does not have to deposit any fee for submitting an information
request. The applicant can submit a hand written application or send email queries to the head of
concerned department (or to the Information Officer once designated) (Section 7(3)).
Information Officers must help citizens in meeting requests without inquiring about the reason
for requesting information (Section 7(5)). The concerned department is bound to provide
information within ten (10) working days (Section 11(1)). For matters of life and liberty,
information must be provided within two (2) working days (Section 11(3)).
Another unique provision of the RTI-KPK is in respect of whistleblowers (Section 30). No
action can be taken against a whistleblower who brings to light the internal wrongdoings in good
faith and in the reasonable belief that the information was substantially true and disclosed
evidence of wrongdoing or a serious threat to health, safety or the environment.
C. Conclusion
The concept of rule of law is well understood and developed in Pakistan to adequately facilitate
optimum implementation of environmental protection and sustainable development regimes. The
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introduction of “environmental” rule of law will not in any way help the presently satisfactory
constitutional and legal framework in Pakistan. Instead, while it may not help, environmental
rule of law may possibly add to the burden of seeking a de novo judicial acceptance of this new
categorisation of rule of law.
D. Recommendations23
If the purpose of this First International Colloquium includes the promotion of the ability of
national courts to appropriately implement national and international environmental regimes, the
presently applicable rule of law could be strengthened by the following measures:
1. Regionalize Environmental Protection
Experience in the human rights field has shown that the success of any global efforts are
considerably enhanced by regional initiatives such as the European Convention of Human Rights
and the American Convention of Human Rights. An Asia Pacific Covenant on Environment and
Development or even sub-regional compacts such as by SAARC and ASEAN can bring much
energy at these levels which has lagged at the international level. If an over-arching regional
treaty on sustainable development is too ambitious at this stage, attention should be given to
regionalize, in Asia Pacific, the Aarhus Convention. The common history, geography, problems
and resource levels can contribute to a common vision and ownership for sustainable
development in the region and sub-regions.
2. Capacity Building of Judges, Prosecutors and EPAs
With a satisfactory constitutional and legal framework for environmental management in place in
almost all the countries of the Asia Pacific Region, the need today is to strengthen the capacity
23
See Parvez Hassan, Human Rights and the Environment: A South Asian Perspective, keynote address at the 13th
Informal ASEM Seminar on Human Rights, on 21-23 October 2013, at Copenhagen, Denmark (under publication in
the Journal of Human Right and the Environment in 2014), and Parvez Hassan, Environmental Jurisprudence from
Pakistan: Some Lessons for the SAARC Region, in 2012 Corporate Law Decisions, Journal, at 24-49. Further,
recommendations will be found in the remarks by Parvez Hassan, Elements of Good Environmental Governance,
delivered at the Asia Pacific Parliamentarians Forum Tokyo, Japan, 10-11 May 2001, published in 6 Asia Pacific
Journal of Environmental Law, at 1-11
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for implementing such framework. The judiciaries of South Asia have led in a dynamic and
activist interpretation of particularly the right to life to include a right to a clean and healthy
environment.24 This salutary trend needs to be reinforced by building the capacity of subordinate
judges, prosecutors and the Environmental Protection Agencies.
3. Compilation of Soft Law Instruments
Judges, prosecutors and other law enforcement officials will benefit from a readily-available and
reader-friendly compilation, in one volume, of soft law instruments such as the Stockholm
Principles (1972), World Charter for Nature (1982), Rio Declaration on Environment and
Development (1992), Johannesburg Principles (2002), Rio + 20 (2012), Earth Charter (2000),
and the IUCN Covenant on Environment and Development. Experience has shown that in South
Asia, the superior judiciary has readily applied soft law principles such as the precautionary
principle in environmental adjudication.25 A compilation of leading sectoral Multilateral
Environmental Agreements would also be helpful.
4. Updating of UNEP Compendium of Decisions
The UNEP Compendium of Decisions, both National and International, has been helpful to
judges and prosecutors who use the experience of other jurisdiction to handle matters in their
own. The Compendium was published in 1998 and although the updates are available on the
internet, an updated Compendium would be handy in the libraries of judges and environmental
lawyers and officials.
At the end, I would like to add that the recent declarations and resolutions such as Johannesburg
2002 and Rio +20 emphasized that the challenge before the international community is to
implement sustainable development. The urgent need, today, is to walk the talk. Coining new
terms may be exciting talk. But I had rather walk the road already before us.
24
Supra notes 1 and 16.
Shehla Zia v WAPDA PLD 1994 Supreme Court 693. See also supra notes 1 and 23, and Parvez Hassan,
Changing Global Order: Role of Courts and Tribunals in Pakistan in Environmental Protection, a paper presented at
the Third International Symposium of Laureates of the Elizabeth Haub Prizes held in Murnau, Germany, on 14-16
November 2013.
25
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