Open government and right to information

Open government is the governing doctrine, which holds that citizens have the right to access the documents and proceedings of the government to allow for effective public supervision (see Wikipedia: http://en.wikipedia.org/wiki/Open_government].
In its broadest construction, it opposes reason of state and racist considerations, which have tended to legitimise extensive state secrecy. The origins of open government arguments can be dated to the time of the European Enlightenment: to debates about the proper construction of the nascent democratic society of that era. Among recent developments is the theory of open-source governance, which advocates the application of the philosophies of the free software movement to democratic principles to enable interested citizens in getting more directly involved in the legislative process.
Way back in 1993, the UK government issued a White Paper declaring that it was the government's "commitment to make government in the United Kingdom more open and accountable." Public interest is involved in both disclosure and confidentiality of information which needs to be subtly balanced by devising suitable policies and legislation. Countries like Sweden had introduced this right in the eighteenth century while in recent years, France, Canada, Australia, New Zealand and the USA have joined the rank. Closer to home, Aruna Roy a prominent founder and member of the movement Mazdoor Kisan Shakti Sangathan (MKSS) actively campaigned for the right to information in India. The movement has been credited for getting the Right to Information (RTI) laws passed in several States, including the Rajasthan Right to Information Act passed in the year 2000. The RTI movement and campaign also played a crucial role in the passage of strong national legislation for the RTI in the year 2005.
In an interview, Aruna Roy said, "The pity is that there is no accountability in the present system of governance. All human rights depend on the basic right to know, to demand accountability. In India, the feudal social fabric has exploited the formal democratic system to its advantage because the literate are too busy building careers and empires to bother about social inadequacies. That's why RTI has a widespread appeal for everyone. Every citizen of the state has a fundamental right to say: "You are spending my money. Render me the accounts." But most people are unaware of this power and suffer as a result their inaction and ignorance." These observations hold true for the prevailing situation in Pakistan as well. Explaining further she also said,
"We need to take legislation to the people and policy can't be framed without the consent of the people. In a democracy no policy can be formed without a public debate. Like the first native American President Evo Morales said: 'There is the Left, there is the Right and then there are the people."
Without taking the people into confidence and without their consent, no democratic government can claim to establish successful governance. In other words, whatever the government does should be made public so that the electorate can scrutinise the acts of their representatives holding them both responsible and accountable.
The starting point of across-the-board accountability in Pakistan should be making public, assets, liabilities and taxes of politicians, high-ranking civil and military officials and judges. The civil society and media should come forward to force the parliament to abolish all laws relating to secrecy and/or immunity and enact a comprehensive legislation for compulsory disclosure of assets, liabilities and taxes paid by the generals, high-ranking government officials, judges and politicians - this information cannot be obtained under the existing law that is the Freedom of Information Ordinance 2002.
The issue of asset disclosure by judges in India came in the limelight when a Right to Information Application (RTI) was filed with the Supreme Court by Mr Subhash Agarwal in order to know if judges of the High Courts and the Supreme Court were complying with the 1997 "Code of Conduct" adopted at the Chief Justices Conference requiring judges to disclose their assets in confidence to their Chief Justices. The public information officer of the Supreme Court, endorsed by the Chief Justice, claimed "no such information exists in the Supreme Court registry".
Later on, an appeal was submitted before the Central Information Commission (CIC) arguing that the Supreme Court was making a distinction between information with the Chief Justice's office and that of the Supreme Court. The CIC, while rejecting this distinction, directed the public information officer of the Supreme Court to secure this information from the Chief Justice's office and hand over the same to Subhash Agarwal, the RTI applicant.
The Supreme Court challenged the order of CIC filing a writ petition in the Delhi High Court. The CIC merely directed the release of the information about whether judges were disclosing their assets to the Chief Justice, but in the writ petition, the Supreme Court apprehended that the exercise might lead to paving the way for people to know about asset disclosures under the Right to Information Act ["the Act]. It was claimed that asset disclosures by judges was exempted under the Act as the data lay with the Chief Justice under a "fiduciary relationship". The second contention was that being "personal information", it had no relationship with the public domain. The Chief Justice feared that public access of such declarations would amount to "an unwarranted invasion of the privacy" of his brother judges. Finally, it was argued that the Chief Justice was not a "Public Authority", amenable to the Act.
The issue came in further limelight when the government introduced a bill in Parliament providing for asset disclosure of judges, but with a protection clause that the same would not be accessible to the people and that judges would not be made liable for any action on the basis of their disclosure. This led to a commotion in the parliament - the MPs rising above party lines, vehemently and collectively condemned this clause, forcing the government to pull out the bill.
In the wake of the debate in the Parliament and public campaign, a number of High Court judges made their assets public, dissociating themselves from the Chief Justice of India's stand that asset disclosure would lead to harassment of judges at the hands of the disgruntled litigants. Eminent former judges and leading jurists joined civil society - they openly demanded public declaration of assets by judges. The entire civil society and media, unanimously and vocally, opposed the stance of the Chief Justice. Succumbing to opposition-both from inside and outside - the Chief Justice ultimately yielded and announced that the asset declarations of the judges would be placed at the official website, www.supremecourtofindia.nic.in. Soon thereafter, twenty-one judges of the Supreme Court, including the Chief Justice of India K.G. Balakrishnan, declared their assets, giving details of movable and immovable properties owned by them and their spouses.
We should also initiate a public debate about the asset disclosure of judges. Before judges hold politicians and others accountable, they must convince the masses that their own hands are clean. The honourable Chief Justice of Pakistan, who visited India this year for the Commonwealth Conference, must be aware of recent developments in India in this direction. One hopes, he would soon order public disclosure of assets by all honourable judges and ensure their placement at the official website of the apex court. The Supreme Court Bar Association, under the dynamic leadership of Asma Jahangir, should raise this issue as the accountability of lawyers and judges is as essential as of any other section of the society.
According to Indian commentators, the disclosures made so far are disappointing because they lack many important details. They give an idea of the different saving habits of different judges. Some of them have invested in real estate, others in shares and yet others in the government's savings schemes. But the information could have been useful only when the market value of the assets was made known and details like the time of acquisition of property were also given.
In Pakistan we have laws (sic) for the declaration of assets and liabilities by government servants and public office holders, but the common man knows nothing about them. In these declarations the present value of the property and how they were acquired are seldom revealed. These, along with tax declarations, should be made public. In India there was sharp criticism over asset disclosures of the judges and their spouses. It was demanded that information about the assets of other close relatives, like sons and daughters, was also important in the Indian context. The declarations, made under a Supreme Court resolution of May, 1997, were only in partial conformity with the requirements laid down. That declaration, in fact, underlined the need for a law that makes disclosure mandatory and open to the public, lays down in detail assets to be declared, how the disclosure is to be made and who should come under its purview. The civil society and media demanded that it should also specify the consequences of wrong declarations.
The campaign for judicial accountability and reform in India in recent years has assumed great public importance. The issue is no longer confined to public disclosure of assets of judges. The public and media have made it clear that the RTI legislation is the key to open government, transparency and accountability. Such legislation, if implemented in letter and spirit, can pave the way for true democracy. We require public campaign for such a law if all the four pillars of State - Legislation, Judiciary, Executive and Media - have to be made accountable to the public. Right to information, access to public record and free availability of what is owned by the privileged classes must be assured - this alone can help establishing an open government, free of corruption and accountable to voters responsible for creating it.
(The writers, tax lawyers and writers of many books are Adjunct Professors at Lahore University of Management Sciences (LUMS)