Whither freedom of information law?

RIGHT to information legislation ensures that citizens have access to official records. It is through access to public records that we can determine how the nation’s resources are being utilised and thus make the functioning of governments transparent and its functionaries accountable to the citizens.

In the absence of such a law, journalists feed the masses with guesstimates. Alternatively they rely on informal sources to lay hands on official documents which they should be able to get as their right in the first place by submitting information requests to the concerned ministry or the department. That is why the freedom of information movement has gained momentum in the last ten years and now over 65 countries have enacted access to information laws. More importantly, the right to information movement has established benchmarks to determine the effectiveness of information laws enacted by different countries.

Pakistan has not escaped the impact of these developments. In fact, it was the first country in South Asia to have such a law in the shape of the Freedom of Information Ordinance 2002 (FIO 2002). However, it is a weak law with many loopholes.

It is in this context that Information Minister Sherry Rehman’s promise at a press conference on April 2 is exceedingly important. She said that access to information for the media as well as the people would be ensured. During the tenure of the previous government, PPP parliamentarians had thrice attempted to table a freedom of information bill for transparency and accountability. This bill is to be revived in consultation with civil society stakeholders, the information ministry and the media.

It is heartening to note that the government is willing to work on a freedom of information law through a consultative process. A brief analysis of the existing freedom of information law with reference to international practices is in order so that past mistakes are not repeated while making the new law. Reforming a bad law is more difficult than enacting a good law in the first place. FIO 2002 has many anomalies that become all the more glaring when juxtaposed with ten principles that have evolved over the years and are considered to be at the heart of good legislation on freedom of information.

According to the first principle, ‘everyone’ has the right to information. FIO 2002 gives this right only to the ‘citizens’ of Pakistan. In other words, tourists, businessmen, foreign nationals employed within Pakistan or others living in the country for different purposes are excluded from the purview of this law. The second principle says that access is the rule and secrecy the exception. It is vice versa in the case of FIO 2002. The list of exemptions is very long. Even file notations and minutes of meetings which are deemed, with certain qualifications, to be public documents under information laws framed by different countries have been given blanket exemption from disclosure.

The third principle pertains to the jurisdiction of information laws and says that the right to information applies to all public bodies. In line with this principle, certain countries have brought into the purview of their information laws even those private entities which are substantially funded by the government. However, FIO 2002 is applicable only to the federal ministries and attached departments.

Making requests simple, speedy and free is the essence of the fourth principle. Under FIO 2002 the process is neither simple, nor speedy nor free. The requester has to declare the purpose of seeking information. The designated officer is bound to provide information within 21 days of the receipt of the information request. In case the information is denied, the requester can lodge a complaint with the head of the organisation who can decide the matter within 30 days.

If the head of the organisation feels that the information is not to be disclosed, the requester can lodge a complaint with the federal ombudsman who is not bound by any time frame. The fee for seeking information is high. The initial fee for copies is Rs50 which covers only the first ten pages of the public record. For any extra page, Rs5 will be charged per page which is even higher than the market price.

The ordinance takes into account the fifth, sixth and seventh principles. In accordance with the fifth, it makes the provision that assistance will be given to the requester. Similarly, the sixth principle is encapsulated by the provision that makes it binding on the designated officer to give, in writing, the reasons for denying information. The seventh principle pertains to the right of appeal against an adverse decision and FIO 2002 grants this right.

The eighth principle, that public interest takes precedence over secrecy, is not adhered to by the ordinance. Proactive disclosure, the ninth principle, is incorporated in FIO 2002 and makes it binding on federal ministries and attached departments to publish core information.The tenth and last principle, establishing an independent body to guarantee the right to information, is overlooked by the ordinance. In the absence of an information commission, which many countries have set up, the requester has to look to the federal ombudsman when information is denied. Determining the validity of information requests and ensuring the free flow of information is a specialised job which may not be properly carried out by the already overburdened federal ombudsman’s office.

This juxtaposition of FIO 2002 with principles pertaining to freedom of information shows that the federal information law is very restrictive and riddled with many anomalies that need to be done away with. No wonder empirical data suggests that it is extremely difficult to retrieve information from official quarters under this law.

We have meagre resources and can ill afford the squandering of the past. As it has already proven in many countries, a just freedom of information law can be a potent tool in the hands of journalists and citizens groups to access public records and thereby make officials and public representatives accountable.

Will the government and civil society be able to enter into a dialogue resulting in such a law? The answer to this question will determine how, as a nation, we are going to get rid of corruption, maladministration and injudicious use of public resources.

zahid@cpdi-pakistan.org

Avoiding a fifth coup

CAN a nation that has been hit with four coups avoid a fifth? The threat is real. The last coup took place when coup-making had fallen out of fashion globally. According to GHQ’s discourse, Pakistani coups are carried out of necessity. The four horsemen of the apocalypse — Ayub, Yahya, Zia and Musharraf — all invoke the same rationale: restore law and order, remove corrupt politicians and prevent bankruptcy.

Their coup-making behaviour has provided fertile ground for scholarly examination. The most widely respected theory, put forward by Hasan Askari-Rizvi, asserts that coups occur when the army’s corporate interests are threatened. This theory is cited most recently in a new treatise penned by a former civil servant, Mazhar Aziz (Military Control in Pakistan, Routledge, 2008).

The ‘corporate interest’ theory is at odds with GHQ’s ‘national interest’ theory. Between the two, it provides the superior explanation of history. Aziz marshals new evidence that contradicts the army’s version of history.

Citing a World Bank study, he says the economy under Prime Minister Nawaz Sharif was doing quite well until the nuclear tests of May 1998 triggered a series of economic sanctions. And, citing data from a senior police officer, he shows that lawlessness has continued to grow under both civilian and military regimes.

Can the corporate interest theory yield predictions that can be used to shape policy and prevent coups? Quite possibly, but first it has to be extended in several ways. It needs to objectively define the army’s corporate interest and clarify who within the army would evaluate it. And it has to specify the triggers that would signal to the army that its corporate interest is under threat.

The theory is ‘under-identified’ because it can lead to multiple predictions depending on exogenous factors. It needs to factor in the personality of the army chief and the extent to which he is able to rally the corps commanders around himself. Under the same circumstances, one army chief may choose to mount a coup while another may not. Had Gen Musa been the army chief in 1958, the ‘October Revolution’ may have not occurred.

Another factor that needs to be worked into the theory is whether or not the chief has been able to win over external support for his actions, notably from America, China and Saudi Arabia. Ayub’s coup could not have been carried out without the connivance of the US, the main supplier of the army then (and now). China did not object to Zia’s coup despite Bhutto’s close ties with Mao and Zhou. Musharraf took a calculated risk in overthrowing Nawaz Sharif, fully aware that the latter had engaged in summit diplomacy with President Bill Clinton just three months prior.

The corporate interest theory seems to suggest that coup-making is deeply rooted in the strategic culture of the nation and little can be done to break the vicious circle in which civilian and military regimes oscillate indefinitely. Clearly, there is no reason to be so pessimistic.

The theory overlooks the importance of the time difference between the coups. The first coup came after 11 years of civilian rule, the second coup took place nine years after the first military regime had civilianised itself, the third one took place after five years of civilian rule and the fourth one took place after 11 years of civilian rule.

This average gap of nine years between coups suggests that coup-makers are realists who realise that they can only carry out their extra-constitutional act once the public buys into the ‘national interest’ argument. It is difficult to carry out a coup if the previous one has not been followed by a significant spell of civilian rule. That factor may have prevented Gen Beg from seizing power on Zia’s death.

But the most important enhancement needed in the theory is a definition of the army’s corporate interest. In one interpretation, it could simply be the army’s role in defining the nation’s defence policy, including the defence budget and arms procurement policies. In a broader definition, it may also extend to its foreign policy. Hussain Haqqani has shed light on these connections in his incisive work on the military’s use of religion and its links with the US to advance its corporate interests.

Finally, in the broadest and most sinister definition, it could extend to what Ayesha Siddiqa has termed ‘military business’. This would encompass not only the army’s civilian businesses but also its intrusions into all aspects of domestic policy.

Each of these boundary conditions defines a different redline, from least aggressive to most aggressive. All of them negate Jinnah’s concept of Pakistan.

Seeking to legitimise its political role, GHQ often cites the example of Turkey to rationalise its coups. However, there are important differences. Firstly, modern Turkey’s founder, Ataturk, specifically gave the army a constitutional role in the governance of the state.

It was to be the protector of the secular character of the state. All civilian governments know that if they bring religion into politics they risk ouster at the hands of the military. This redline is much more difficult for Turkey’s coup-makers to invoke than the much softer redlines set by Pakistan’s coup-makers.

Secondly, the Turkish military simply replaces one civilian government with another. Thirdly, the incidence of coups is expected to diminish as Turkey moves closer to the EU.

In Gohar Ayub’s memoirs, Ayub Khan is quoted as saying that nothing can stop an aggressive army chief from overthrowing the government. Thus, a fifth coup cannot be ruled out unless the strategic culture of the nation is changed (‘Rethinking defence’ in Dawn of April 7). But it is also necessary to create a strong punitive deterrent.

Two examples come to mind. When a democratic government was restored in Greece in the mid-seventies, it arrested the coup-makers. They were tried under Greek law and sentenced to death. The sentences were later commuted to life in prison with no possibility of parole. Athens has been coup-free since.

In a similar vein, a court in Manila has just handed sentences of up to 40 years to some military officers who were convicted of seeking to carry out a coup. There are lessons in this for Pakistan’s legislators and jurists and generals.

The writer is an economist specialising in defence and energy issues.

faruqui@pacbell.net

The two Browns

IF ever a moment perfectly embodied the current calamity of Gordon Brown’s premiership, it came at the White House on Thursday afternoon.

On the one hand, the power and pomp of a summit with the US president to discuss mighty global issues. On the other, the decision to interrupt the schedule to make a pleading phone call to Sheffield to prevent the resignation of just about the most minor office-holder in the government. Sorry, Mr President, it’s more important for Britain that I talk to Angela Smith about tax right now. She was going to resign over the abolition of the lowest income tax rate of 10 per cent, a move that will leave poor couples poorer.

It is hard to imagine a more exquisite example of the sometimes brutal mismatch between outward pretension and inner turmoil in Brown’s existence than this abject prime ministerial phone call from the White House to talk Smith down off the political window-ledge.

It is not good for Brown and it is definitely not good for Britain. It is true that this duality has always been deep within Brown and that he probably cannot change it. Even in the good times Brown has always been an unusually striking combination of vaulting global visionary and obsessive domestic operator cohabiting inside the same rumpled suit. However on this trip to the United States the two Browns have been compelled to parade in the public spotlight together — and it is a demeaning sight in a prime minister.

Washington is a place that exposes the tensions between aspiration and reality more pitilessly than any other. Even if the Americans didn’t keep talking to him about Churchill all the time, it would be hard for any visiting British prime minister not to feel puffed up by a sense of history and by a feeling of walking in hallowed footsteps. But the immanence of American hyperpower can be daunting too. Washington makes visiting prime ministers feel important but at the same time it exposes how little they really count for.

Brown being Brown — congenitally incapable of switching off from managing the domestic political process — the contrast has been greatly intensified this week by the rapid drain of authority at home. While one part of Brown’s sleepless brain continued to engage with pressing issues such as the credit crunch and epochal challenges like reform of the global institutions, on which he made a significant speech in Boston on April 18, the other part stayed down and dirty in the British political bearpit.

Fixing Smith’s wobbly was the most dramatic example of this rear-view mirror fixation. But in Washington Brown was also fighting Frank Field’s revolt over the 10p tax rate abolition, fulminating against Lord Desai and the former minister Brian Wilson for their brutal press comments, and fretting about the local elections. As well he might — especially if he studied the latest straw in the wind of Labour’s southern discomfort. In a Suffolk county council byelection on Thursday, Labour’s share of the vote slumped from 33 per cent in 2005 (which wasn’t itself a great Labour year) to an 8.8 per cent fourth place behind even the Greens. With the Labour MP Gwyneth Dunwoody’s death, there is now also a Westminster byelection in Crewe and Nantwich to worry about, one that Labour cannot afford to lose.

It is always tempting for both politicians and media to regard these sweaty battles as a much more real and vivid dimension of politics than a speech about the reform of international institutions in an age of globalisation. It’s tempting because partly true. After all, who’s really interested in another speech when the prime minister is a wounded animal? And which of us needs reminding that Brown is a past master at trying to distract the public from his embarrassments and failures? As one senior Labour figure put it to me this week: “You can always tell things are going wrong at home when Gordon presses the button marked Africa.”

Even so, politics always was about abstract nouns as well as concrete nouns. Moreover most politicians - and Brown typifies this - are in public life to do good as well as to make a name. And anyway it is difficult to argue, in the face of climate change, nuclear proliferation, Islamist terrorism, global economic failure and the damage of Iraq — and with Darfur, Palestine, Somalia, Tibet and Zimbabwe, among others, unresolved — that the world would not benefit from better international processes and institutions. We must not hide behind an ineffective United Nations.

That is the reason why, in spite of all the distractions and justifiable doubts, Brown’s speech in Boston on Thursday should actually be taken seriously. For Brown is right. The world’s political, financial and security institutions are not equal to the world’s political, financial and security problems. They need to be reformed. They need the US to be fully engaged so that they can be reformed effectively. That process needs all the impetus it can get.

That was the essence of Brown’s message at the Kennedy Library and it could hardly be a more pressing one, not least for Americans themselves. Pressure needs to come from other international quarters too, and it ought to be a more prominent part of the US presidential election debate — though it won’t be. There is plenty of serious thinking going on in Washington (not least in books by Madeleine Albright and, in particular, by Strobe Talbott).

But if the next president does not have a strategy that gives the international agenda (and this includes the Middle East) real heft immediately after the election in 2009-10, there is a severe danger that the exigencies of the US campaign cycle may relegate the issue in the next administration’s priorities until 2015-16.

So Brown did some good work in Boston. But there remains a danger that he will dissipate his effectiveness by deluding himself, as Tony Blair did, into believing that he is uniquely able to shape American global thinking. He is not. Americans are capable of working out their own interests. Brown is not and never will be the author of American foreign policy.

His priority ought to be to get Britain’s own story straight — a story in which engagement in Europe, the British military effort, nuclear non-proliferation and climate change are the crucial unwritten chapters. It would be nice to believe that Brown shares the strategic view of these issues that David Miliband has begun to set out at the Foreign Office. But Brown still needs to prove that global institutional reform, like Africa perhaps, is not a button that he likes to press when things are getting out of control at home. n

—The Guardian, London

Straws in the wind

THERE is a point of view that the political culture of Pakistan is more like that of a monarchy than of a democracy. The external appearance of the political system is that of a democracy; its internal spirit is that of a monarchy. A lot more can be explained better when events are looked at in this perspective.

Take for example the exiling of political opponents, inconceivable in a modern democracy but quite common in earlier monarchies. The phenomenon of ban-baas finds frequent mention in Indian history and the banishment of English pretenders to France was not uncommon.

Similarly, the arrest of individuals on arbitrary charges and their incarceration in dungeons if they displease the ruler of the day is also a phenomenon associated with monarchies. Large cabinets and the movement of an entourage with the ruler are more akin to durbars than to the small governments of contemporary democracies. Dynastic succession provides the strongest evidence and is the most difficult to explain in any other framework. Because it occurs across South Asia it suggests a deep-rooted societal ethos not confined to particular religions or ethnicities.

But the evidence of a monarchical ethos does not necessarily rest on such major phenomena. It is when the manifestations can be found in minor, seemingly everyday occurrences that one is forced to acknowledge the extent to which it is a part of the subconscious psyche of the region.

I was reminded of this on reading the news that the prime minister had taken notice of the ban on Shoaib Akhtar and directed the Pakistan Cricket Board (PCB) to revise the decision.

If correct, how else would one interpret this except as a firman from a ruler? One would presume that the Board had taken note of a transgression and constituted a panel that heard evidence based on which it reached its decision. One would also presume that a process exists for the aggrieved individual to file an appeal against the ruling.

How does a prime minister come into this and overrule the entire institutional process? It is understandable only if one thinks of the ruler as a monarch who has absolute authority. One can think back to the adl-i-Jahangiri where a complainant would appeal directly to the monarch and the latter would adjudicate based on his assessment of the merits of the case.

In that context, the holding of open kutcheries still remains quite popular in modern-day Pakistan. Individuals with parchis wait for hours to hand them to the ruler who scribbles orders to his viziers for compliance — a transfer, or restitution, or relief from bureaucratic harassment. The monarch dispenses justice and moves on.

The argument that the PCB was not democratic is ironic. If so, it only confirms that another monarch had appropriated the Board earlier with little protest by the citizens. In all likelihood nothing will change in the functioning of the Board except the faces.

I am not blaming the prime minister who is a nice man having vowed to change the system and bring back true democracy. My point is that perhaps it did not even cross his mind that he was emulating a monarch and that this was a quintessentially monarchical act, albeit a minor one. That is because the monarchical ethos is bred in the bone in South Asia.

Examples of the phenomenon will continue to recur with regularity. Take for example the information minister’s characterisation of the repeal of the Pemra strictures as a ‘gift to the media’. Not the concession of a right, but a monarch’s gift that could be taken back just as easily as it has been granted.

Or, take the gesture of the Punjab chief minister to convert the CM’s house into a university for women. A generous act indeed but once again quite an arbitrary and whimsical one. No need to consult anyone — the monarch knows best the optimal use of the facility and who is to question the appropriateness of the decision.

One enters as a democrat and begins morphing into a monarch before the day is done — the minor manifestations are the most revealing. It might help to keep pointing them out.

The writer is the 2007-2008 Pakistan Scholar at the Woodrow Wilson International Centre for Scholars in Washington, DC. She writes at

www.thesouthasianidea.wordpress.com