Whistleblower Protection in Pakistan

A whistleblower is a person who raises concern or awareness about a wrongdoing in their workplace, either state or private. 

In the recent years, with the testimonies of Edward Snowden (an American computer professional, former CIA and US Government employee who copied classified information from the United States National Security Agency (the “NSA”) in 2013 without prior authorization. This information revealed numerous global surveillance progams and brought the issue of privacy, security and surveillance to global discussion), Julian Assange (the founder of Wikileaks that publishes secret information, news leaks, and classified media from anonymous sources), and Bradley Manning (a US army officer who disclosed information to Wikileaks), whistleblowing has become a much discussed topic receiving equal amounts of support and opposition.

Whistleblowing, however, has been practiced for centuries. From the Ramayana, where Vibhishan, younger brother of the King of Lanka, Ravana, informs Ram about the whereabouts of Sita, the consort of Ram, to the Watergate scandal that toppled the presidency of Richard Nixon on the information provided by a secret informant known as Deep Throat (revealed in 2005 as Mark Felt). Whistleblowing has grave consequences for the accused and the accuser. The whistleblower, though seemingly working for the greater good, is oft seen as dangerous and misguided (e.g. why did he have to make the information public, why didn’t he use the correct mechanisms) and forced to live either in hiding, never revealing his identity, or in exile.

In Pakistan, there is no specific legislation on whistleblower protection on a Federal level. Within the provinces, only Khyber Pakhtunkhwa, vide the Khyber Pakhtunkhwa Right to Information Act, 2013 (the “KPK 2013 Act”), provisions for the protection of whistleblowers (Section 30). Section 30 of the KPK 2013 Act provides for protection of whistleblowers as follows:

30. Whistleblowers.—(1) No one may be subject to any legal, administrative or employment related sanction, regardless of any breach of a legal or employment obligation, for releasing information on wrongdoing, or which would disclose a serious threat to health, safety or the environment, as long as they acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing or a serious threat to health, safety or the environment.

(2) For purposes of sub-section (1), wrongdoing includes the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or serious maladministration regarding a public body.

The other provinces also have similar acts: Punjab has the Right to Information Act, 2013; Balochistan has enacted the Freedom of Information Act, 2005; and Sindh has enacted the Sindh Freedom of Information Act, 2006 (collectively referred to as the “Acts”). However, there is no provision in the Acts which is analogous to Section 30 of the KPK 2013 Act or provides for protection of whistleblowers.

The fate of whistleblowers is, therefore, left to the jurors deciding each case upon its facts. The following factors act as a deterrent against whistleblowing:

  1. Red-tapism; no outcome of the complaint made using the correct procedures, if any, available.
  2. Defences, such as national security, interest of the state, and confidentiality obligations, argued, usually successfully, by the accused.
  3. No procedure for the protection of the identity of the whistleblower.

The Eighteenth Amendment to the Constitution of Pakistan, 1973, with the insertion of Article 19A, allowed citizens the right to have access to information in all matters of public importance. The Eighteenth Amendment was an attempt to bring information “in all matters of public importance” to the public sphere. Public bodies, officials, institutions were now required to record, store and be accountable for the information used and processed by them. Unfortunately, the Eighteenth Amendment was qualified with the proviso “subject to regulation and reasonable restrictions imposed by law” that resulted in curtailing the rights of citizens. The proviso provided an opening for the holders of information to restrict access. The only remedy available to citizens seeking information under Article 19A is challenging any refusal in the courts which include the usual issues with court proceedings, i.e. years of litigation, costs, waste of time, etc.

The text of Article 19A is as follows:

19A. Right to information.−Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

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Khyber Pakhtunkhwa (KPK) – More Than Just A Pretty Face

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4 January 2014

The Dynamic Model: Khyber Pakhtunkhwa Right to Information Act, 2013

With the inclusion of Article 19A in the Constitution, the right to information was constitutionally acknowledged as a fundamental right instead of just a statutory right as provided by the earlier legislations.

In September 2013, the Khyber Pakhtunkhwa (“KPK”) Assembly passed the Khyber Pakhtunkhwa Right to Information Act, 2013 (the “RTI-KPK”), which meets all the standards of effective right to information legislation such as maximum disclosure (Sections 3, 5 and 7); minimal exemptions (Section 14); minimum cost for the requested information (Section 13); and disclosure taking precedence over exemption without providing a blanket exemption in any particular case. The law provides that even if the information pertains to categories of exempted information, there should be a strong presumption for disclosure if the information exposes corruption, criminal wrongdoing, other serious breaches of the law, human rights abuse, or serious harm to public safety or the environment (Section 14(e)). Section 3 provides that no requester shall be denied access to any information or record and that the RTI-KPK shall be interpreted so as to advance the purposes of the RTI-KPK and facilitate the disclosure of information at the lowest reasonable cost.

Under Section 24, the Government shall within a period of one hundred and twenty (120) days, establish an Information Commission under the RTI-KPK. The Information Commission shall be an independent body which enjoys operations and administrative autonomy from any other person or entity, including the Government or its agencies (Section 24(2)). The functions of the Information Commission shall be primarily to receive and decide on complaints (Section 25(1)) and perform all tasks that are necessary to do the same (Section 25(2)).

Section 26 provides the Information Commission with all, direct or incidental, powers that are necessary to undertake the functions as provided by the RTI-KPK including compliance with the law. The Information Commission shall, inter alia, have the power to (1) hold, acquire and dispose of property; (2) to conduct inquires, and have the powers of a Civil Court under the Code of Civil Procedure, 1908; (3) order a public body to disclose information (Section 26 (3)(a)), impose a fine on any official who willfully acts to obstruct any activity under the RTI-KPK (Section 26 (3)(b)).

Under Section 28 of the RTI-KPK, it is a criminal offence to (a) willfully obstruct access to any record with a view to prevent the exercise of a right, (b) obstruct the performance by a public body, (c) interfere with the work of the Information Commission, or (d) destroy a record without lawful authority. Anyone committing such an offence is liable to a fine or imprisonment (Section 28(2)).

There is an obligation on public bodies under Section 4 of the RTI-KPK to ensure that its records are properly maintained so as to enable compliance with the RTI-KPK and any relevant rules or standards established by the Information Commission. Section 5 provides the categories of information that shall be duly published by public bodies in an up-to-date fashion and a manner that ensures accessibility to all. Section 5(2) enforces a greater obligation on public bodies to publish an annual report highlighting what they have done to implement their obligations under the RTI-KPK and detailed information about the requests received and how they have processed them. This annual report is forwarded to the Chief Secretary, KPK and to the Information Commission to take such actions as they deem fit. This promotes transparency in the system and encourages the authorities to provide access to information. Section 8 provides that “all reasonable steps” shall be taken to assist any requester who needs assistance.

The applicability of the RTI-KPK is wide in scope applying to government departments, the legislature, chief minister/governor secretariat, lower courts, private bodies funded by government and private bodies providing public services (Section 3 and 2(i)).

As per Section 13(1), an applicant does not have to deposit any fee for submitting an information request. The applicant can submit a hand written application or send email queries to the head of concerned department (or to the Information Officer once designated) (Section 7(3)). Information Officers must help citizens in meeting requests without inquiring about the reason for requesting information (Section 7(5)). The concerned department is bound to provide information within ten (10) working days (Section 11(1)). For matters of life and liberty, information must be provided within two (2) working days (Section 11(3)).

Another unique provision of the RTI-KPK is in respect of whistleblowers (Section 30). No action can be taken against a whistleblower who brings to light the internal wrongdoings in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing or a serious threat to health, safety or the environment.

Whereas, the provincial legislation merely mirrored the complacent and lackluster approach of the federal legislation, the RTI-KPK provides a dynamic model for greater access to information.

The RTI-KPK has received great accolades around the world and is acclaimed as holding a high position in the global right to information law rankings. Experts at the World Bank have appreciated this move and note that the legislation contains “all the features that are vital for a strong right to information law”.

Acknowledgment: The above research was included in the Paper presented at the First Asia Pacific International Colloquium on Environmental Rule of Law organized by the United Nations Environmental Programme (UNEP), and held in  Kuala Lumpur, Malaysia, on  11-12 December 2013 by Dr. Parvez Hassan (B.A. (Punjab), LL.B. (Punjab), LL.M. (Yale), S.J.D. (Harvard), Senior Advocate, Supreme Court of Pakistan, Senior Partner, Hassan & Hassan (Advocates), Lahore, and President, Pakistan Environmental Law Association)

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Myra Khan Qureshi is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

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