ISLAMABAD: The Supreme Court on Monday ordered its office to provide complete information about its staff strength to a private citizen within a week, saying the top court falls within the purview of Article 19A of the Constitution under which the information of public importance can be sought.

At the same time, the Supreme Court also made it clear that the Right of Access to Information Act, 2017, does not apply to the Supreme Court and, therefore, the appeal preferred by petitioner Mukhtar Ahmad Ali seeking the information from the top court was not maintainable.

These directions came on a judgement authored by Chief Justice of Pakistan (CJP) Qazi Faez Isa who had taken up one of a kind case in which the petitioner had sought infor­mation from the Supreme Court.

“Access to information secures the well-being of the people, which is what the nation aspires towards as stated in the Principle of Policy set out in the Constitution,” observed the CJP. Justice Athar Minallah, also a member of the bench, added a note on the subject.

Registrar’s office tasked with providing details of apex court’s staff strength to petitioner

The petitioner had sought the information from the Supreme Court Registrar on April 10, 2019, under the Right of Access to Information Act, 2017, regarding the total strength of the staff employed at the court, vacant posts, contractual or daily wage employees, fresh positions created after Jan 1, 2017, female employees, appointment of special persons, transgender employees besides the approved rules on recruitment policy in the court.

But the information was not given. Consequently, the petitioner approa­ched the Pakistan Information Commission (PIC), Islamabad, which passed an order on July 12, 2021, with a direction to the registrar to share the information and notify a public information officer as per Section 9 of the act since the information being sought did not impinge upon the functioning of the judiciary.

The Registrar Office filed a writ petition before the Islamabad High Court (IHC) on the grounds that the information commission had wrongly assumed that the Supreme Court came under the public body definition under the act.

The high court, however, rejected the plea as a result the petitioner approached the Supreme Court high­lighting that the petitioner had been deprived of his right to a fair trial.

The judgement said the Supreme Court Rules,1980, provide that the court registrar was the “executive head of the office and shall exercise such powers as assigned to him”.

But these rules do not grant the registrar the specific power to initiate litigation and though the Chief Justice may assign “any function required by the rules to the registrar”, the rules do not require, nor envisage, initiating litigation.

Therefore, the registrar could not be given this responsibility, nor could he undertake it, the judgement said, adding the Constitution defines the Supreme Court as the Chief Justice and Judges of the Supreme Court. However, litigation was initiated by the registrar without the approval of the Supreme Court, as defined in the Constitution. At the relevant time, a bureaucrat (Jawad Paul) was serving as a registrar who may not have been aware of the rules and constitutional stipulations, the judgement said.

Article 19A stipulates that information be provided subject to regulation and reasonable restrictions imposed by law. However, there is no law that attends to the SC in this regard nor has the SC itself made any regulations.

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. Consequently, the information sought by the petitioner should have been provided to him.

The court also ordered 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.

Justice Minallah’s note

Meanwhile, Justice Athar Minallah in his additional note said the Supreme Court, to repose the peoples’ trust, has to adopt the principle of proactive disclosure of information by placing all the information of matters relating to public importance on its website or displaying it through other means.

There should be no need for a citizen to request information. Proactive disclosure of information is implicit in the fundamental right guaranteed under Article 19A of the Constitution, Justice Minallah observed, adding that transparency, openness and enforcement of the right guaranteed under Article 19A were the tenets of public confidence and an independent judiciary. The Islamabad High Court was also not covered under the Act of 2017, yet it voluntarily provided access to information sought by a citizen on July 29, 2021, in response to an order of the Pakistan Information Commission (PIC).

It does not behove the constitutional courts to withhold or turn down the request of a citizen exercising the right of access to information guaranteed under Article 19A of the Constitution. The SC, therefore, has to set an example for others by proactively disclosing information, rather be seen as infringing a guaranteed fundamental right, Justice Minallah said.

The SC is presumed to be a model for others to follow regarding financial discipline and implementation of enforced laws and policies of transparency and openness. It is also presumed that the Supreme Court would be enforcing the principles that it enunciates for others to follow more rigorously in its own administrative affairs.

Such reluctance and refusal justifiably leads to giving rise to suspicions and adverse perceptions, thus eroding the independence of the judiciary.

Justice Minallah also suggested that the act should be rigorously implemented and followed by the administration of the Supreme Court.

Published in Dawn, October 17th, 2023

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