Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ
MUKHTAR AHMAD ALI---Petitioner
Versus
The REGISTRAR, SUPREME COURT OF PAKISTAN, ISLAMABAD and another---Respondents
Civil Petition No. 3532 of 2023, decided on 16th October, 2023.
(On appeal against the judgment dated 13.06.2023 passed by the Islamabad High Court, Islamabad in I.C.A. No. 190 of 2023).
Per Qazi Faez Isa, CJ.; Amin-ud-Din Khan, J. agreeing; Athar Minallah, J. also agreeing but with his separate opinion.
(a) Supreme Court Rules, 1980---
----O. III, R. 1---Registrar of Supreme Court, powers of---Registrar initiating litigation on behalf of the Supreme Court without approval from the latter---Not permissible---Supreme Court Rules, 1980 ('the Rules') provide that the Registrar is the 'executive head of the office and shall exercise such powers as assigned to him'---Said Rules do not grant to the Registrar the specific power to initiate litigation and though the Chief Justice may assign 'any function required by the Rules to be performed by 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.
Registrar Supreme Court of Pakistan v. Hassan Akbar 1987 PCr.LJ 1321 and Registrar Supreme Court of Pakistan v. Qazi Wali Muhammad 1997 SCMR 141 distinguished.
(b) Right of Access to Information Act (XXXIV of 2017)---
----S.2(ix)---Constitution of Pakistan, Art. 19A---Public body---Scope---Supreme Court of Pakistan---Right of Access to Information Act, 2017 ('the Act') applies only to public bodies as defined in section 2(ix) of the Act and this definition does not include the Supreme Court of Pakistan---However, the Supreme Court is not excluded from the purview of Article 19A of the Constitution, and information of 'public importance' can be sought thereunder---Article 19A stipulates that information be provided subject to regulation and reasonable restrictions imposed by law---However, there is no law which attends to the Supreme Court in this regard nor has the Supreme Court itself made any regulations---If a law is enacted and/or regulations made, requests for information would be attended to in accordance therewith and in accordance with Article 19A of the Constitution.
(c) Constitution of Pakistan---
----Art. 19A---Right to information---Scope---What previously may have been on a need-to-know basis Article 19A of the Constitution has transformed it to a right-to-know---Burden has shifted from those seeking information to those who want to conceal it---Access to information is no longer a discretion granted through occasional benevolence, but is now a fundamental right available with every Pakistani which right may be invoked under Article 19A of the Constitution---Access to information secures the well-being of the people.
NLRB v. Robbins Tire and Rubber Co., 437 U.S. 214, 242 (1978); The World's Right to Know' Thomas Blanton, Foreign Policy No. 131 (Jul-Aug 2002), pp. 50-58; Tara Vishwanath, Daniel Kaufman, The World Bank Research Observer, Vol. 16, No. 1, pp. 41-57 and Ibn Qayyim al-Jawziyah, I 'lam al-Muwaqqi 'in 'an Rabb al-'Alamin (Beirut: Dar al-Kutub al-'Ilmiyyah, 1991), vol. 2, p. 133 ref.
(d) Constitution of Pakistan---
----Art. 19A---Right to information---Scope---Information about staff members, vacancies, and Service Rules of the Supreme Court of Pakistan---Details of such information sought by the petitioner and the consequent directions issued by the Supreme Court stated.
The petitioner addressed a letter to the Registrar of the Supreme Court and sought the following information:
i) Total sanctioned strength of staff members of Supreme Court of Pakistan (categories-wise) against different positions/pay-scales i.e. from pay scale 1 to 22 (category-wise).
ii) Total vacancies in the Supreme Court of Pakistan against different pay-scales/positions (category-wise); and dates since which these positions have been lying vacant.
iii) Number of staff members who are not regular but have been engaged on daily-wages basis or through short-term or long-term contracts against various positions/pay-scales (category-wise).
iv) Number and types of positions created a new since January 1, 2017.
v) Total number of female staff members (category-wise) against various positions/pay-scales. The response may distinguish between the short-term/temporary staff members and regular ones.
vi) Total number of persons with disabilities working with Supreme Court of Pakistan against various positions/pay-scales (category-wise). The response may distinguish between the short-term/temporary staff members and regular ones.
vii) Total number of transgender persons working with Supreme Court of Pakistan against various positions/pay-scales (category-wise). The response may distinguish between the short-term/temporary staff members and regular ones.
viii) A certified copy of the latest approved Service Rules of the Supreme Court of Pakistan.
Article 19A of the Constitution envisages the placing of reasonable restrictions on the provision of information, but refusing to provide information is to be justified by the person, authority or institution withholding it. 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 categorized as being contrary to the public interest. Consequently, the information sought by the petitioner should have been provided to him. Petition for leave to appeal was converted into an appeal and allowed and the Registrar of the Supreme Court was directed to provide the information sought by the petitioner within seven days. The office was also directed to refund to the petitioner the court fee paid by him on present petition and on the intra-court appeal filed in the High Court.
Per Athar Minallah, J.; agreeing with Qazi Faez Isa, CJ. but with his own separate opinion.
(e) Constitution of Pakistan---
----Art. 19A---Right to information---Scope---Article 19A of the Constitution guarantees to every citizen the fundamental right of having access to information in all matters of public importance---Exercise of this right is subject to regulation and reasonable restrictions imposed by law---Expression 'subject to regulation and reasonable restrictions' does not and cannot confer competence upon the legislature to abridge, impair, restrict or curtail the scope of the constitutionally guaranteed right by granting outright or indiscriminate exclusion to a public entity---Right under Article 19A is related to access to information in all matters of public importance, including information regarding public bodies.
(f) Right of Access to Information Act (XXXIV of 2017)---
----S.2(ix)---Constitution of Pakistan, Art. 19A---Public body---Scope---Supreme Court of Pakistan---Plain reading of the Right of Access to Information Act 2017 ('Act of 2017') shows, prima facie, that the Supreme Court has not been expressly excluded from the definition of 'public bodies' under section 2 (ix) of the Act---Parliament while promulgating the Act of 2017 could not have intended to take away or abridge the right under Article 19A by an outright and indiscriminate exclusion of the Supreme Court and thus barring a citizen from having access to information relating to its activities of public importance---It appears that the Supreme Court has not been expressly excluded from the purview of the exercise of the right of a citizen under Article 19A---Any interpretation of the Act of 2017, having the effect of giving immunity to the Supreme Court from the exercise of the right of a citizen to have access to information would amount to abridging and taking away a constitutionally guaranteed right---In such an eventuality and to such an extent the Act of 2017 would be void because of inconsistency with a fundamentally guaranteed right---On the touchstone of the principles of presumption of constitutionality and saving the law from being declared void, the Act of 2017 ought to be construed as not granting impunity to the Supreme Court nor barring a citizen to exercise the right to have access to information---No citizen should walk away from the Supreme Court perceiving the refusal to entertain a request for access to information as concealment or suppression of public information---Internal regulations, information relating to human resource, privileges and perks enjoyed by judges and the employees, the budget allocated to the Supreme Court and its expenditure are some of the areas that are matters of public importance and thus of interest to the citizens---There is no reason for the Supreme Court to refuse a request of access to information unless it falls within the exceptions described under the Act of 2017---It is critical that the Act of 2017 is rigorously implemented and followed by the administration of the Supreme Court because it enforces the right under Article 19A of the Constitution even though it does not expressly apply to it---To repose the peoples' trust, the Supreme Court 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---Supreme Court has to set an example for others by proactively disclosing information, rather be seen as withholding information and thus infringing a guaranteed fundamental right. [Minority view]
(g) Constitution of Pakistan---
----Art. 19A---Right of access to information---Significance---Right of access to information is a bulwark against corruption and corrupt practices---It enables the citizen to know how they are being served and how the resources that belong to them are being utilized and spent---It empowers the citizens and promotes democratic values and participatory governance.
Petitioner in person.
Respondent No. 1 in person
Mansoor Usman Awan, Attorney-General and Ch. Aamir Rehman, Addl. A.G.P. on Court's call.
