Right to information: a guardian of democracy

Right to information: a guardian of democracy

“democracy dies behind the closed doors”, said an American judge Damon Keith in a very famous Detroit Free case. It is a guardian right of democracy in Pakistan. However, before to discuss it at length; it is pertinent to define it. The right to information (hereinafter will be referred to as RTI) has been defined and adopted up till now by almost above a hundred countries as per their norms, legal, and socio-economic mores, etc.  Moreover, it also has successfully been recognized in each international instrument that deals with fundamental human rights.

In Pakistan, the RTI has been bestowed a constitutional status of a fundamental right in the 18^th constitutional amendment. Under its Article 19A, it has been defined as the “right of every citizen to have access to information in all matters of public importance”. Afterward, all four provinces of Pakistan adopt it. In Punjab, through the legislation of ‘The Punjab Transparency and Right to Information Act, 2010’, it is comparatively defined better than the rest of the provinces: a right to acquire information, including the inspection of documents and works, to extract and to access a certified copies of requisite documents and materials, etc. in all matters of public importance.

Furthermore, through the adoption and legislation of the ‘Right of Access to Information Act, 2017’,  the federal government of Pakistan also adopts and defined it.  While reiterating its belief on transparency and its aim of improved access of information to the records controlled by public functionaries. Furthermore, to promote the principle of accountability before its citizens; to accept the principle of participatory democracy;  to eradicate the menace of corruption; to improve the performance of governance; to strengthen socio-economic growth; to boost the good governance and to honor human rights, it adopted the ‘Right of Access to Information Act, 2017’. In this legislation, the RTI is defined as the right to access to information controlled by public functionaries or agencies including information of documents or records which may either be digital or printed in nature, in all matters of public importance.

Why is it a guardian of democracy? Because James Madison once said, “a popular government without popular information or the means of acquiring it is but a prologue to farce or a tragedy”. Those countries which have adopted it in its true letter and spirit are successful democracies. Yet those who have snubbed it and do not adopt it by those means; there the rule of law and accountability is still a chimera. Such as the United States of America adopted it in 1966 through the ‘Freedom of Information Act, 1966. Sweden adopted it in 1949, Australia adopted it in 1987, and Canada in the year of 1983. There is a list of successful democracies that adopted it first and a list of failed democracies that have not.

On the other hand, Pakistan adopted it officially—with a heavy heart as a cumbersome duty to be obliged and which was imposed by international institutions and pressure—in the year 2010. Yet not in its letter and spirit. In this regard, up till 2010 a series of successive procrastinate promises were made by each one who came at the helm. As a false claim, often the notion of security or sometimes national security has been put forth as an impediment in its implementation—it requires another long debate that whether RTI hinders national security or not. But its late and still hypocritic adoption, adrift our citizens from its usage and benefits. Thus, the depth of corruption’s ocean is consistently increasing; the impermeable culture of secrecy is gaining strength; the lack of openness and transparency is resulting in huge losses to the exchequer.

  It is a guardian of democracy because it ensures political accountability and true representation. For the first aspect, ‘accountability’: it is crystal clear that each democratic state emphasized on this notion. Thus, where there is a democracy, there is the right to information. These two co-exists. None can survive without each other. Notwithstanding, this first aspect; the second comes as a consequence of the first one. As the accountability of whom: the representatives.  This representation stems from the relationship of electorates with elected ones.  And when these electorates do not pursue their promises and slogans; there comes the RTI to let it be known to the citizens what their chosen ones are doing.

It is also a guardian of democracy because it compels the elites and the rules to answer before laymen and downtrodden. This is obviously a dislike situation. To whom the elites and bureaucrats consider nothing; their simple application can place them at the dock before the law. This answering aspect is democracy. As it is a two-way promise: one promise by the voters that they will vote, second by the representatives that they will abide by their promises made with voters. Thus, the right to information guards and protect democracy. 

Moreover, it is also a guardian of democracy because it protects the citizens from the unbridled, whimsical, arbitrary and fanciful powers of the rulers through accountability. It is not that constitutional status of being Article 19A gives it guardianship title. Rather, its unimpeachable relationship with democracy makes it worthy of this entitlement. This is because RTI finds its place straightforwardly in discussions of democracy and its principles: such as participation and accountability. And as a guardian of democracy, it not only tackles the corruption but also helps to evaluate the public response; as elections are not the only means of democracy, rather the right to know after the formulation of government is real democracy.

In a nutshell, it is sin-qua-non for a true democracy. It controls corruption and malpractices by giving access to information in all matters of public importance to every citizen. Being a part of freedom of expression; it strengthens the fourth pillar of the state: media. The right to information comes as a savior for the downtrodden from whimsical, capricious, mischievous shenanigans of the rulers and elites by compelling to disclose all those matters that deal with the masses. It advances the transparency and deprecates the secrecy. In other words, it flourishes democracy.

Hafiz Muhammad Azeem.

The writer is an advocate of the high court and writes on various topics. He can be reached at Khokhar.azeem@yahoo.com. His articles can be accessed on hmazeem.blospot.com. He holds an LL.M. from the Punjab University and teaches law.

The art of judgment writing

The art of judgment writing

            The end product of a trial, in a court of law, is the judgment. It is the only allowed interaction of a judge with people. However, there are certain characteristics of good judgment. The procedural law (Code of Criminal Procedure, 1898) provides under its section 367; what a good judgment should have. Yet, it does not provide that what a good judgment should not have. True, there is no clear-cut rule of writing a judgment. Yet, what a good judgment should have and should not have in it; it is an open question that needs to be answered.

            Before to analyze what are the requirements of good judgment. It should be defined and explained. A judgment can be defined as a ground for the decision. It the decision of court resolving the disputes between the parties; or on a criminal side, it is the determination of guilt. In simple words, it is the application of law upon the conclusion of facts. It is based upon the points for determinations, decision and the reasoning behind it.

            Foremost, a good judgment stands on three main pillars: one, points for determination; second, the decision thereon; and third, reasons for the decision. In simple parlance: the charge of crime against the accused, the adjudication of the charge—trial resulted in conviction or acquittal—and the reasons for its decision.

Furthermore, good judgment must comprehensively analyze all relevant facts, should depict, clear thinking, and then writing. Moreover, it should be self-contained, unambiguous, conveniently intelligible. And it should be transparent like a clean water; so that, people can understand it without any doubt and probabilities. Lastly, it should be brief.

            Besides, good judgment should be based on evidence on record. No external material or any extraneous circumstances can be considered in writing a judgment of a particular case. And it should discuss the evidence, reasons, arguments, and materials from both sides.

            Likewise, a trial court is not required to discuss and research the law. As it is a court, more of facts than law. It deals with the facts; therefore, its judgment too must not leave any important fact and introduce any extraneous one. The trial court’s judgment is an answer to the question of fact and not of law. It is the job of superior courts to expound the law.

            And, it should be plain and easily understandable. If the judgment is in the English language, the use of oriental words should be avoided. Moreover, the poetic allusions should also be avoided.

            Now, what judgment should not have. Foremost, as it is said that “brevity is the soul of wit”, so it should not be too long and boredom. Since, it is the quality, not the quantity, which produces good judgment. Yes, it should not leave any important fact; however, it should not be unduly long, repetitive and unbridled. 

Generally, the judges do not have to worry about the interests of the readers, but they should have it. And usually, the judges in our country have an inclination for tracing the history of the case or subject. The history cannot be a part of a good judgment, because good judgment is a concise judgment.

Next, it is the requirement that the tone and attitude of a judge should not be depicted through a judgment. Further, the criticism, if it is necessary, should be in an honorary and dignified manner. No personal remarks should be part of it. Moreover, it should not contain adverse remarks against the past or present conduct of any public servant. Otherwise, the whole judicial system would too become open to criticism.

There should not be left any chance of even a slight feeling of biasedness. Each party must have full trust on the judge. Transparency is sin-qua-non for a judgment; because it supports the building of public confidence, whereupon whole judicial structure is standing. As it is not the satisfaction of a judge, rather the satisfaction of the party to the case, which is the hallmark of the test of biasedness.  

            In addition, it should be at the end of the trial. Unless, a party satisfies that he has been heard and completely granted an opportunity to present his case, the rule of prudence is that, it should be postponed. so, there should not be any agitation regarding the hearing. Moreover, it should not contain any unnecessary details, arguments, materials, and discussions, etc. either in or out of the court.

            In a nutshell, good judgment requires to have: reasoning, clarity, precision, brevity, sobriety, impartiality, complete hearing, and evidence, precedents, arguments of both sides. And it requires not to have: prolixity, verbosity, poetic expressions, frivolity, complex sentences, personal knowledge of the judge, and adverse, derogatory, disparaging remarks.  

            Lastly, it is an honor to conclude, in the words of Holy Prophet PBUH:

“there are three categories of judges; two will go to Hell Fire whilst the third one will enter Paradise. A judge who knows the truth and passes judgment accordingly will enter paradise. A judge who knows the truth but perverts the the course of justice will go the hell and also a judge who knows the truth and passed judgment based on ignorance shall go to hell.”