The public's right to know

It is a sunny morning in the spring of 1891. Charlotte Pitt, one of the characters in a novel I have been reading, is looking at The Times in the drawing room of her London home. Her visiting grandmother admonishes that had it been her house, she would not have allowed the servants to give her the newspapers.

It might be acceptable for a decent woman to read the "Court Circular" {listing the Queen's engagements) and announcements of betrothals and weddings, but it would be entirely unladylike of her to read accounts of politics and crime. Convinced that electoral politics were wicked, she went on to declare that "government should be conducted by gentlemen, born to lead, not by people chosen at random by the masses who haven't the faintest idea what it means."

We used to have a similar predisposition in our political culture. Once, in my younger days, I went to see a senior foreign service officer in Islamabad. Reminding him of the old maxim that one should know one's adversary, I asked if it would not make sense to allow access to Indian newspapers and journals so that our intellectuals and commentators could have a better understanding of the Indian mind. He had the arrogance, in effect the foolishness, to tell me that he and his colleagues in government knew India well enough, and that we on the outside didn't have to.

A great deal of water has passed under the London Bridge since 1891. The connection between the people's right to know, on the one hand, and their right to participate in politics and hold their rulers accountable for their conduct, on the other, is now well established in western democracies. It is beginning to be recognized in our part of the world also. In legal terms the right to information is deduced from the right to freedom of expression, more specifically the freedom of the press. This linkage was confirmed in a judgment of the Supreme Court of Pakistan in Nawaz Sharif's case against Ghulam Ishaq Khan (1993).

The Indian Supreme Court made a similar observation in 1995. In an earlier case (The state of Uttar Pradesh v. Raj Narain, 1975), it held: "In a government of responsibility like ours, where all agents of the pubic must be responsible for their conduct, there can but be few secrets. The people of the country have a right to know... the particulars of every public transaction." On other occasions, it has observed that the people must have relevant information to be able to participate in the ongoing debates on social and moral issues and to influence the decisions that will affect them.

By way of implementing the people's right to know, many states have passed "Freedom of Information" (FOI) laws that entitle individual citizens to request and obtain access to public documents and records. The United States adopted such a law in 1974 in the wake of the Watergate scandal. Cases of poor judgment or malfeasance in government come to light as a result. If I may cite just one of many such instances, it has been found that way back in 1975 President Gerald Ford and Secretary of State Henry Kissinger had given President Suharto of Indonesia the green light to invade East Timor. The American servicemen's massacres of unarmed civilians in Vietnam have also been revealed.

It is recognized, however, that the public's interest in disclosure of information should be weighed against its interest in non-disclosure, and that certain types of information may be treated as privileged. The FOI bill passed in Britain (1999), and a similar bill in India (2000), excluded several categories from the citizen's free access. In Pakistan an FOI ordinance was issued in 1997 but it was allowed to lapse and did not become law.

The excluded subjects usually relate to defence, foreign relations, decision-making process at both the political and bureaucratic levels, criminal investigations, trade secrets and scientific discoveries in the government's custody, some of its financial transactions (e.g., disposition of discretionary funds, allocations for domestic and foreign intelligence gathering).

The right to know has to contend with a much older culture of secrecy. This is the case even in the United States where this right is invoked more vigorously. On October 12, 2001 (a month after 9/11), the US Attorney-General sent out a memo to government agencies urging them to resist FOI requests if institutional or personal privacy interests were implicated. A couple of weeks later (November 1), an executive order authorized President Bush to seal all presidential records since 1980.

Restrictive legislation in the Indian subcontinent began, in a formal sense, with the adoption of Official Secrets Act in 1923, being a replica of a British law passed in 1911. With minor amendments this law remains in force in Pakistan. It forbids unauthorized acquisition of information that may damage the country's security or its friendly relations with other countries, and that which has been given to the government in confidence. Persons accused under this law are to be presumed guilty unless they can establish their innocence.

The culture of secrecy is deeply entrenched in Pakistan. Considering the linkage between the right to know and the freedom of expression, one should keep in mind the laws and practices that restrict the freedom of the press. Note that, in addition, certain sections of the Pakistan Penal Code have the same effect. Section 123-A, for instance, forbids any statement that may be prejudicial to the "ideology of Pakistan." The next section makes it possible for any emphatic criticism of the government to be construed as seditious.

Can a case be made for secrecy regarding any kind of governmental decisions and transactions? Yes. A state will not want its foes to know what its plans with regard to them are. If it announces these plans to its own people, the foes will, ipso facto, come to know of them. It is not surprising then that normally governments do not volunteer information concerning the specifics of their defence preparedness.

President Woodrow Wilson's advocacy (following World War I) of "open covenants openly arrived at" was much too idealistic, and men of affairs have never given it serious thought. Treaties, after they have been finalized, are made public, but the exchanges between the parties at the negotiating table are not publicized for the simple reason that their publication would bring the negotiators under undue pressure, take away the flexibility essential to bargaining, and jeopardize the negotiations.

Decision-making processes within the government are generally regarded as protected. Decisions of the cabinet are announced, but details of the preceding discussion, contributions of specific individuals, and the differences of opinion that surfaced are kept confidential in order to preserve its institutional integrity and wholeness ("collective responsibility"). Within the bureaucracy, as a file moves from a section officer's desk to that of the department head, opinions and analyses offered along the way are not open to public scrutiny. Opening them would discourage the expression of frank and independent judgment on the part of the officials concerned.

It has been said that the public's right to know needs to be balanced against the right of the individuals and institutions to privacy. Consider any public official. His current rank, pay and allowances, and duties may be published. But is the whole story of his career to be treated as public property? It may be argued that the public is not entitled to examine his annual evaluations or to know of any admonitions, reprimands, or even disciplining that he may have endured. Publication of these details will embarrass him and, in addition, it will disrupt the establishment's internal relationships and cohesiveness.

The public's right to know in a place like Pakistan may not actually mean much more than the right of certain elite groups to information, especially that which can be made to reflect poorly upon the government of the day. One may say there is nothing wrong with that; it is an inescapable part of democratic politics. That is true, but it is true also that there are occasions when the government is in a bind and full and frank disclosure will not serve the public interest.

Take, for instance, the case of Dr Abdul Qadeer Khan. The opposition wants the government to unmask the scandal and place the true facts of the matter before the National Assembly. Can the government do so and still get away with it in domestic and international forums? What if the truth is that some of our high officials (president, prime minister, army chief, or heads of intelligence services) were indeed the principals in nuclear proliferation, and that Dr Khan was only following their instructions (even if he relished his role and made it advantageous for himself)? I am not at all sure that it would be prudent to tell this kind of truth.

Consider also the issue of negotiations with India. The opposition wants it to be debated in the National Assembly. Well, it should be, but certain reservations must be kept in mind. The debate will be entirely dysfunctional if the opposition wants only to make the government the proverbial "whipping boy." The government cannot do much more than state, in general terms, its vision of peace and goodwill between the two countries. But for reasons already mentioned, it cannot, and must not, publicize the positions it will take at the negotiating table as discussion and bargaining proceed. The outcome should be subject to the people's approval but not the process by which it is reached.

The public's right to know is a fabulous idea, and its acceptance is a great and precious preserve of democratic politics. But let us not be unmindful of the ancient Greek insight that excess even of virtue is to be avoided. Moderation in this pursuit, as in all others, will serve us better.

The writer is professor emeritus of political science at the University of Massachusetts, USA.

E-mail: anwarsyed@cox.net

Nuclear and poor together

Sharing his "deepest thoughts on vital national issues" with senior military men the other day, the prime minister wondered why Pakistan is poor though it is nuclear. The answer at least to this deep thought floats on the surface: We are poor because we are nuclear.

Pakistan, as a percentage of its national income, spends twice as much on defence as India or Sri Lanka does. Similar, or imaginably more adverse, would be the ratio of undisclosed but huge investment made in nuclear weapons by India and Pakistan.

Then, the prime minister wonders why Pakistan, a country of 140 millions, the seventh largest in world, is not accorded by the international community the status it deserves because of its number and arsenal. The answer, again, is simple. The status does not flow from arms (which we cannot protect) or from multitudes (of which the majority is illiterate) but from the state of education and economy.

Compare it with Sri Lanka where only eight per cent of the people, almost all from the older generations, are illiterate. This is an obvious outcome of public expenditure on education.

The ratio here is reverse of defence. Sri Lanka spends twice as much on education as Pakistan does. On the quality of education we impart, the most telling comment came from the late Prof. Eqbal Ahmad: Pakistan's best college, he said once, is worse than any community college in the black ghettos of America.

Mr Jamali's lament would make no difference as others' more sombre did not in the past. Whatever little increase the previous governments made or not so little that Jamali's government might now make in the allocation for education (at best it could not be more than a percentage point) will be wasted, misapplied or misappropriated.

The example of waste can be seen in the appointment of teachers who preferred to be excise peons; of misappropriation in the building made for school ending up as an extension to the village party chief's homestead; and of misapplication when a medical student admitted without merit in a government-run college pays as much fee for the full five-year course as a private medical college charges for a month.

The solution lies in encouraging private enterprise in education whether the motive is charity, profit or even to proselytize, and not let the dead hand of government regulation of fees or syllabi fall on the privately-managed institutions.

A beginning can be made by handing back the nationalized colleges to the previous managers whoever are willing to take them. It is not known how many, if any at all, students became Christians by going to Lahore's Forman Christian College but since its return to the missionaries the standards both of discipline and instruction in the college have improved dramatically.

A Ph. D. teacher who had left in disgust has come back from Canada at twice the salary. Will Mr Jamali try this course to better education and save the government money in the bargain? Most likely not, for in politics pious sermons come easier than determined actions.

Mr Jamali cannot be faulted when he says nothing has flourished more in the past three decades than corruption. These decades were dominated by Ziaul Haq's Islam and PPP-PML's democracy. The obvious inference is that religious hypocrisy and political opportunism both fuel corruption. Faultier however is his expectation that the accountability mechanism now in place would deter the corrupt.

Corruption which had abated a bit in President Musharraf's solo three years has come back with a vengeance through the democratic route. It is no longer individual, it has dug its roots deep in our political culture. That explains the craving for ministries and sinecures. Quite obviously twenty-nine ministers in Balochistan and twice as many in Punjab are not for public service alone.

If the accountability now has become a part of the system it should hold to account first those who run the system (and not those who oppose it) before tribunals which stand above the system. Currently quite a few who are accused or suspected of corruption revel in government or in the party in power. Presiding over an accountability court, on the other hand, is viewed as a short and easy route for a judge to higher courts.

The prime minister has spoken of his vision of the ideals on which Pakistan is founded and of good governance to implement them. Both are jargons devised only to obscure hard, honest work. Our home-grown ideologues have distracted attention from this plain truth by starting an unnecessary and irrelevant debate on Islam and secularism, and the international consultants by proposing new and unfamiliar structures of public administration. In the process while the ideologues and consultants both thrive, the people of Pakistan have been made to appear to the world as extremists, intolerant of dissent who are unable to administer themselves.

The president time and again warns a "handful of extremists" (the prime minister doesn't do even that) for exposing Pakistan to international ridicule and isolation. But that is all he does. There is not a single law, harsh or absurd, enacted by Gen. Ziaul Haq (or by the rulers before and after him) contravening civil rights, freedom of conscience, equality of citizens or discriminating against women and minorities which he has repealed. All such laws are still being invoked not to reform the delinquents but to punish and insult unwary, peaceable citizens or to extort bribe from them.

In translating his vision to reality the first task for the prime minister should be to rid Pakistan of extremists and not to seek their blessings to sustain his government.