“The general rule of law is, that the noblest of human productions — knowledge, truths ascertained, conceptions and ideas — become, after voluntary communication to others, free as the air to common use.” [1]
Indeed, it is axiomatic that one of the hallmarks essential for the attainment of a democratic society is the right to express oneself without undue impediments or restrictions. Perhaps the most important of all democratic norms, the freedom of expression, is utilized by politicians, journalists, civil society workers, and laymen alike, as a medium to clamor for the realization of their ideas. This inalienable safeguard has also been enshrined in the Constitutional framework of Pakistan ranging from Article 8 of the 1956 Constitution to Fundamental Right No. 9 of the 1962 Constitution to Article 19 of the 1973 Constitution which holds the field today. But such a right may not be realized in isolation; and modern democratic standards dictate that the freedom of expression is concomitant with other democratic rights such as the freedom of movement, freedom of association, freedom to cast votes or the freedom of assembly etc.
Today, the achievement of such democratic norms is, in essence, facilitated by the media which enables individuals to voice their opinions on a range of subjects. Hence the media perpetuates the achievement of this democratic end but it also, as is often undermined, in simultaneity, enables the facilitation of another democratic necessity: the right to information, now formally entrenched into the 1973 Constitution, by means of the Constitution (Eighteenth Amendment) Act, 2010, as Article 19A of the Constitution. Given the importance of such a cardinal right, it warrants reproduction hereunder:
Just like the concomitant arrangement of the Right of fair trial under Article 10A with Constitutional safeguards against arrest (a prerequisite to a trial) contained in Article 10, and the insertion of Article 25A to supplement clause (3) of Article 25, the legislators’ wariness of the inherent affinities between the right of freedom of speech and the right to information, both of which are democratic safeguards against oppression and tyranny, can be inferred.
Without delving into the jurisprudential intricacies of the right to information, as regards the positive/negative nature or the positivist/naturalist categorization, the right, for the common man, enables access to information from publications, editorials, broadcasts, or electronic online transmission. The content of such a right however cannot be confined to a band of statistics; instead, it transcends to “all matters of public importance” as the language of Article 19A so unambiguously prescribes. The dissemination of accurate information would therefore enable the citizen to develop informed opinions which would enable him/her to comprehend information in matters of “public importance” bearing a direct nexus with his everyday life owing to his status as a citizen of Pakistan, and also realize the extent of his fundamental rights.
But is one to believe that there existed no right to information before the passage of the aforementioned Amendment to the Constitution, and did such an insertion found a novel safeguard? The answer would be quite to the contrary. Far before the formal incorporation of the right to information into the Constitution via the Eighteenth Amendment in 2010, Justice Muhammad Afzal Lone, authoring the judgment in Independent Newspaper Corporation v Chairman Fourth Wage Board [2] in 1993, displayed a dynamic approach and expounded that the freedom of expression is intrinsically premised upon the right to information. In his words:
Although there existed no right to information in the text of the Constitution at that time of the decision, the Court unequivocally and unambiguously declared the right to information to be derivative from the freedom of expression guaranteed under Article 19 of the Constitution. It is self-evident that not only did the Court unearth the information component from the freedom of expression, it also termed the same free from ‘any restraints’. In the backdrop of the afore-referred exposition, it appears inferable that the Court elevated the right to information to the level of paramountcy despite the absence of a statutory or constitutional language mandating the same. [3]
In due course, in 1998, while adjudicating upon the vires of Contempt of Court laws and the connotations pertaining to freedom of expression therefrom, Justice Munawar Ahmed Mirza, in Masroor Ahsan v Ardeshir Cowasjee [4], echoed the afore-referred elucidation of the apex Court inasmuch as the juxtaposition of the right to information and the freedom of expression. Vide his judgment, he also seemed to suggest that the right to information lays the foundation for the achievement of the freedom of expression in the following terms:
What may be discernible from this exposition is threefold: first, the learned Judge seems to impose a humanitarian responsibility on the media, electronic and print, to advance the welfare of the people and the public good; second, the content of “editorials, publications and news” also ought to be provided credibly so as to maintain the veracity of the same; lastly, the right to information predicates the right to free speech as fact-based improved information may mold healthier and more responsible expression of ideas.
The foregoing analysis manifests that the right to information serves as a natural and necessary corollary to the freedom of expression. In fact, the essence of the abovementioned judgments bears stark affinities with the international standards enshrined in the Universal Declaration of Human Rights [5] which lend further credence to the Court’s liberal analysis of the right(s) in the following terms:
Following the insertion of the aforementioned Universal standard into the Constitution via a Constitutional amendment in 2010 [6], it became incumbent upon the State to ensure the accomplishment of this objective. Resultantly it was not too long afterwards that the Supreme Court was confronted with the malleable inconvenience of determining the scope of the right to information in the infamous ‘Memo-Gate Scandal Case’ titled Watan Party v Federation of Pakistan [7]. Justice Jawwad S. Khawaja (as he then was) apparently took this opportunity to radicalize the right embarking upon an endeavor to hoist it to the pedestal of unassailability [8]. Ostensibly, Justice Khawaja seemed intent on sowing an inextricable nexus between the right of information and the democratic paradigm, and rhetorically posed the question:
Furthermore, he succinctly remarked that:
The dicta of the former Chief Justice is undoubtedly enlightening, and was surely welcome as a necessary delineation of the right postdating the Eighteenth Amendment, in labeling the right to information a fundamental safeguard incapable of being subjugated by State actors.
Quite recently the character of the right to information has once again been dilated upon by the Supreme Court. In 2016, in Pakistan Broadcasters Association v Pakistan Electronic Media Regulatory Authority [10], Justice Maqbool Baqar, while delivering the judgment of the Court brought the role of the media to the fore in performing its democratic function of imparting information to the public in the following manner:
In light of all the aforementioned analysis, perhaps it would be worthwhile to focus on one fundamental difference between the rights contained in Articles 19 and 19A of the Constitution: the fact v. opinion distinction. Based on the language of the provisions, and the consequent interpretations thereof, the fact/opinion dichotomy is ever important. Given the coterminous relationship between both rights, the freedom of expression necessarily connotes the airing/voicing of either fact or opinion, both of which would advance this democratic end [11]. The right to information, however, seems to encompass only matters of public importance, and those ought not be based on opinion but rather on fact.
In retrospect, the liberation of the right, in the original Supreme Court judgment in the Independent Newspaper Case [12], was unmistakable. The specific allusion to “public opinion” being encompassed by the right to information firmly validates this conclusion.
However, the explanation of Justice Mirza is more conservative inasmuch as it omits matters of ‘opinion’ and instead focuses on ‘data-based information’, meant to denote facts rather than assumptions or opinion, and ‘uptodate information’, which is the responsibility of the media to provide. Therefore, one might reasonably infer only factual information to be encapsulated within the right if this judgment is heeded in isolation.
Justice Khawaja’s rhetorical dictum is more radical, in terming the right a constitutional and democratic necessity, as an imperative benchmark of democratic governance. However the context of the judgment, in which the Court yearned to unearth the truth relating to the dissemination of secret diplomatic information, yielding much controversy and ill-fame for the country on an international front, suggests that the court was determined in delineating facts from opinion constantly reminding the reader of its expedition to uncover the “truth”. [13]
The last of the aforementioned judgments, however, seems to mitigate the rigidities as regards the classification of the type of information to be accessed by the public. As highlighted in the judgment itself, if the dissemination of information, regardless of being fact or opinion, is understood to be a sine qua non for democratic ends, then information must not be limited to facts but must also include other information not necessarily factual.
Even otherwise, two rebuttals may be advanced to counteract the confinement of the right to merely fact-based information: firstly, as was so conveniently pointed out by Justice Baqar in the 2016 judgment, ‘core free speech… propagates social political or economic ideas, promotes literature or human thought’, none of which is binding on the citizen. It follows that the right to information does not seek to force-feed specific ideas upon others, nor is it meant to equip citizens with prescient attributes. The citizen need not subscribe to any view but rather the right to information simply enables a citizen to formulate an informed opinion which he may do so by corroborating someone’s opinion with facts. The informant only equips the citizen with information and the citizen is free to verify the same and, in due course, formulate an informed opinion upon it.
Secondly, it has by now become axiomatic that fundamental rights enshrined in the Constitution warrant a liberal and progressive construction. Although there is a plethora of case law on the subject [14], one may look no farther than the Supreme Court decision of Khawaja Muhammad Asif v Federation of Pakistan [15] in this regard. Therefore, so long as democracy dictates that fundamental rights are pre-eminent, the right to information cannot be confined to factual data-based information but would also encapsulate other bits of information necessary for the individual in founding an informed opinion.
In spite of the overwhelming importance of the right to information and its natural corollary, the freedom of expression, both rights remain qualified: both being subjected to the oft-noticeable legal jargon “reasonable restrictions” [16]. Although these qualifications, at first glance, may tend to reek of suppression and subjugation, they often stabilize and sanitize the democratic society by preventing abuse of these rights. Of course, a free licence to channel iconoclasm or fomentation could hardly be countenanced as it would evoke a semblance of anarchy instead of democracy resulting in the erosion of the democratic fabric rather than its perpetuation.
All in all, despite the existence of the right in the Constitution itself, and the subsequent legislative action taken thereupon by the Federal Legislature [17] as well as all the Provincial Legislatures [18], in practice the realization of the right to information seems to be merely illusory. In reality, the functionaries entrusted with the facilitation of information providing mechanisms are embroiled in political and bureaucratic dilemmas while also being plagued by infrastructural deficiencies. Needless to say, only the strengthening of the infrastructure would improve the facilitation and the realization of these rights and it is high time that the respective Governments undertake the responsibility of ameliorating this unfortunate quagmire.
Be that as it may, in light of the foregoing analysis, the right to information remains at the forefront of the democratic system as it is the realization of that very right that empowers the citizens to make an informed choice [19]. Whereas in recent times, the importance of the truthfulness of the credentials and nobility of electoral candidates has been radically interpreted by the courts to be matters of public importance [20], there remains room, however, for the ascertainment and procurement of other vital information, such as that pertaining to the status of religious minorities, child labour, and women empowerment, to also be made accessible for the citizens of Pakistan to understand their sacrosanct right to information.
Taken cumulatively, the right to free speech and the right to information are perhaps two beacons of protection against tyrannical and authoritarian rule. As a result, both rights are much more than evanescent amenities; and ought to be recognized as constitutional and democratic necessities, as the decisions of the superior courts so glaringly manifest. As Harold L. Cross, one of the pioneers of the movement leading to the enactment of the US Freedom of Information Act, so pithily put it: “Public business is the public’s business. The people have a right to know. Freedom of information is just their heritage. Without that the citizens of a democracy have but changed their kings.” [21]
1 [Louis Brandies, International News Service v. Associated Press, 248 U.S. 215 (1918)]
2 1993 SCMR 1533; 1993 PLC 673.
3 The observation seems to serve as an embodiment of the saying of John Milton, renowned poet and polemic, contained in “Aeropagitica”: ‘Give me the liberty to know, to utter and to argue freely according to conscience above all liberties’
4 PLD 1998 SC 823
5 Article 19, Universal Declaration of Human Rights, 1948.
6 Constitution (Eighteenth Amendment) Act, 2010.
7 PLD 2012 SC 292.
8 Center for Peace and Development Initiatives, The Interplay of Right to Information and the Freedom of Expression in Digital Spaces: Issues and Challenges, September 2017, http://www.cpdi-pakistan.org/wp-content/uploads/2017/10/The-Interplay-of-Right-to-Information-and-Freedom-of-Expression-in-Digital-Spaces-Issues-and-Challenges.pdf
9 In Hamid Mir v Federation of Pakistan [2013 SCMR 1880], Justice Khawaja also termed the right ‘justiciable’ thereby rendering actions pertaining to it amenable to judicial scrutiny.
10 PLD 2016 SC 692
11 Speculation is rampant in the political context.
12 n. 3
13 Justice Jawwad S. Khawaja made multiple references to the unearthing of the truth in this case as well as in SMC No. 5 of 2012, PLD 2012 SC 664.
14 For instance, Dossani Travels, PLD 2014 SC 1; 2011 SCMR 1621 etc.
15 PLD 2007 SC 642
16 For Instance Legislation such as the Prevention of Electronic Crimes Act, 2016 contains derogations against the exercise of both rights in the cyberspace.
17 The Freedom of Access to Information Act, 2017
18 The Sindh Right to Information Act, 2016; the KPK Right to Information Act, 2013; The Punjab Transparency and Right to Information Act, 2013; The Balochistan Freedom of Information Act, 2005.
19 Justice M.R. Kiyani, Half Truths, Pakistan Writers Cooperative Society, Lahore.
20 Nawabzada Iftikhar Ahmed Khan Babar v Chief Election Commissioner Islamabad and others, [PLD 2010 SC 817]; Muhammad Rizwan Gill v Nadia Aziz and others [PLD 2010 SC 828]; Muhammad Ijaz Ahmed Chaudhary v Mumtaz Ahmed Tarar and others [2016 SCMR 1]; Muhammad Siddique Baloch v Jehangir Khan Tareen and others[PLD 2016 SC 97]; Rai Hassan Nawaz v Haji Muhammad Ayub and others [PLD 2017 SC 70]; Imran Ahmed Khan Niazi v Mian Muhammad Nawaz Sharif [PLD 2017 SC 265]; Hanif Abbasi v Jahangir Khan Tareen [PLD 2018 SC 114]
21 Harold L. Cross, “The People’s Right to Know: Legal Access to Public Records and Proceedings”, Columbia University Press, 1953.
PLD 2016 SC 692 Speculation is rampant in the political context. n. 3