Companies Ordinance, 2016 – The progression of the companies law from 1984 to 2016

The Government has, in November 2016, promulgated the Companies Ordinance, 2016 replacing the Companies Ordinance, 1984. After various seminars, conferences, expert groups, discussions and debates, the Companies Ordinance, 2016 (the “2016 Ordinance”) was drafted, debated and promulgated. The new law encourages a movement towards simplifying certain procedures, enabling greater use of technology, and encouraging a paperless record keeping environment.

The constitution for companies and the backbone legislation for the economy has experienced a cardinal shift. The salient changes to the legislation are provided below and will be revised accordingly; the history of the law and the analysis and discussion on the projected effect will follow in a subsequent post.

  1. Classification of Companies as provided by Section 224 and the Third Schedule of the 2016 Ordinance.

The Third Schedule provides for Public Interest Companies and Large Sized Companies (“PILSCs”), Medium Sized Companies (“MSCs”); and Small Sized Companies (“SSCs”). Small Sized Companies, for example, shall include private companies having (1) paid up capital up to Rs. 10 million; (2) turnover not exceeding Rs. 100 million; or (3) employees not more than 250.

The classification of a company shall be based on the previous year’s audited financial statements and can be changed if it does not fall under the previous criteria for two consecutive years.

Special provisions are provided to facilitate small and medium companies.

The 2016 Ordinance also provides for relaxations for Free-Zone Companies (Section 454) and the establishment of an Investor Education and Awareness Fund (Section 245). The 2016 Ordinance further provides for companies that are “Inactive Companies” to seek such status from the registrar to avail limited procedural and accounting requirements (Section 424).

Moreover, the 2016 Ordinance provides for streamlining lengthy processes by introducing an efficient dispute resolution mechanism through the Mediation and Conciliation Panel (Section 276), passing of members’ resolution by circulation and simplified provisions for Mergers and Acquisitions.

  1. Memorandum of Association

The 2016 Ordinance requires that companies engage in such business that is the “principal line of business” (Section 26) to reduce the issues related to the doctrine of ultra vires whereby the company undertakes acts that are beyond its scope of work or powers. The principal line of business shall be mentioned in the memorandum of association or notified to the registrar.

  1. Conversion of Shares into Electronic Format.

Electronic or “demat” form is the concept of dematerialization in finance and financial law and refers to the substitution of paper-form securities by book-entry securities. This is a form of an indirect holding system which is used as an intermediary, such as a broker or a central securities depository and holds the records of the ownership of the shares in an electronic format. The Central Depository System in Pakistan, established under the Central Depositories Act, 1997 has a similar system of electronic filing, record and transfer for and of securities.

  1. Special provisions for Independent and Non-Executive Directors (Section 166).

The 2016 Ordinance provides for the inclusion of independent directors and non-executive directors on the Board including provisions for the manner of selection and maintenance of the data bank of such directors.

  1. Increased provisions for Disclosure of Directors, and Beneficial Owners and Increased Transparency by local and foreign companies.

The 2016 Ordinance provides for increased disclosure by companies to the regulatory. It further provides for the companies to maintain a Companies’ Global Register of Beneficial Ownership (Section 452) for every substantial shareholder or officer of a company incorporated under the 2016 Ordinance, having ten percent (10%) or more shares in a foreign company or body corporate.

There is increased regulatory control vis-à-vis fraud, terrorist or corrupt financing, and money laundering.

  1. Certificate of Shariah Compliance.

Section 451 enables companies to seek for a Shariah compliance certificate from the Securities and Exchange Commission of Pakistan. No company shall be permitted to be called “Shariah compliant” unless it is conducting business according to the principles of Shariah and has been so certified by the Commission.

  1. Agriculture Promotion Companies (Section 457).

The 2016 Ordinance enables the registration of agriculture promotion companies for the development and enabling of the agriculture sector.

  1. Table of Fees, amended, to be Paid to the Registrar.

The Seventh Schedule updates the Table of Fees to be paid to the Registrar (Section 462 and 469).

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.

The Resignation of the Prime Minister under the Constitution and Long March Politics

26 August 2014

The following note is a brief memorandum on Article 95 of the, oft-ignored, foundation document of Pakistan, the Constitution of Pakistan, 1973 (the “Constitution”), long march politics and relevant examples from India.

A. The Constitution

(1) Article 95 of the Constitution provides as follows:

  1. Vote of no-confidence against Prime Minister.− (1) A resolution for a vote of no-confidence moved by not less than twenty per centum of the total membership of the National Assembly may be passed against the Prime Minister by the National Assembly.

(2) A resolution referred to in clause (1) shall not be voted upon before the expiration of three days, or later than seven days, from the day on which such resolution is moved in the National Assembly.

(3) A resolution referred to in clause (1) shall not be moved in the National Assembly while the National Assembly is considering demands for grants submitted to it in the Annual Budget Statement.

(4) If the resolution referred to in clause (1) is passed by a majority of the total membership of the National Assembly, the Prime Minister shall cease to hold office.

Article 95 provides the democratic procedure to remove the Prime Minister from his office if he loses confidence of the majority of the members of the National Assembly. In this respect a resolution for a vote of no-confidence is moved by not less than twenty percent (20%) of the total membership of the National Assembly. If the resolution is passed by majority of the total membership of the National Assembly, the Prime Minister immediately relinquished powers.

B. The History of Long Marches to Oust the Government in Pakistan

In Pakistan, “long march politics” has been witnessed during the regimes of elected governments since 1990. These have basically been exercised to bring about regime change, with the help of the army.

(1) 1992 – Benazir Bhutto formed the National Democratic Alliance and marched towards Islamabad from Lahore, against the government of Nawaz Sharif. The long march failed due to the lack of preparation from Bhutto and support from the then Chief of Army Staff (“COAS”), General Asif Nawaz.

(2) 1993 – Bhutto planned another long march against the Sharif Government. This time, more prepared, and with the support of COAS, managed to achieve the abdication of the President and the Prime Minister and elections within ninety (90) days.

(3) 1996 – Sharif became Prime Minister after the dismissal of Bhutto’s Government by President Sardar Farooq Ahmed. Bhutto formed the Grand Democratic Alliance in 1998 and initiated the long march with the support of the then COAS, General Pervez Musharraf and the United States government.

(4) 2009 – Sharif joined the hype of the Lawyers Movement and led a long march from Lahore to Islamabad for the restoration of the judiciary and the resignation of the government. The COAS, General Ashfaq Kayani however, asked him to call off the march before he had reached Islamabad, confirming that his demands had been met.

C. Examples under Indian Jurisprudence:

1. In 1971, after a re-election victory over the opposition, Indira Gandhi became the fourth Prime Minister of India. However, during the next few years she presided over increasing civil unrest brought on by food shortages, inflation, and regional disputes. Moreover, the Socialist Party hailed charges that she had defrauded the 1971 election leading to a national scandal. In 1974, the Allahabad High Court convicted her of a minor election infraction and banned her from politics for six (6) years. She, instead, refused to resign and declared a state of emergency, which allowed her to arrest dissenters, censor the press, restrict various personal freedoms, and rewrite India’s Constitution.

In 1977, long-postponed national elections were held, and Gandhi and her party were voted out of office by a clear majority. The next year, Gandhi’s supporters broke from the Congress Party and formed the Congress (I) Party, with the “I” standing for “Indira.” Later in 1978, she was briefly imprisoned for official corruption. In 1979, divisions with the ruling Janata Party led to the collapse of its government. New elections were held in January 1980, and the Congress (I) Party, with Indira as its head, won back the lower Indian parliament in a stunning reversal of its political fortunes. Gandhi again became prime minister. The legal cases against her were subsequently dismissed.

2. Important points to consider:

(1) Gandhi was voted into power by a clear majority in 1975;

(2) Due to flawed governance and a strong opposition, she was tried and convicted for electoral fraud by the Allahabad High Court and banned from politics for six (6) years;

(3) She refused to resign and instead declared a state of emergency which allowed her to control to affairs of the State and amend the Constitution;

(4) She was eventually voted out in the next elections, in 1977;

(5) With the collapse of the government in 1979, and the elections in 1980, her party won back the lower parliament with Gandhi as its head.

Corruption, including electoral fraud, was alleged in India against a Prime Minister who refused to resign. As no further action was permissible and/or effective under the laws of the country, she was able to refuse resignation, declare a state of emergency and mould the State to her favour. She was eventually voted out of office in 1977.

3. On 5 April 2011, Anna Hazare began his hunger strike at Jantar Mantar in Delhi as a reaction to the rejection by Prime Minister Manmohan Singh of his request for the formation of a joint committee comprising government and civil society representatives. Hazare had wanted the committee to draft an anti-corruption bill containing stronger punishments and giving more independence to the Ombudsmen in the States). He said that he would continue the fast until the bill was passed and attracted considerable support, including about one hundred and fifty (150) people who joined him in fasting. No politicians were allowed to join in the fasting.

Protests spread to Bangalore, Mumbai, Chennai, Ahmedabad, Guwahati, Shillong, Aizawl and a number of other cities in India. There were also gatherings in solidarity around the world, including Washington, London, Glasgow, Los Angeles, New Jersey, Paris and Houston.

The Government responded as follows:

(1) The resignation on 6 April of Agriculture Minister, Sharad Pawar from the group of ministers that had been charged with reviewing the draft bill.

(2) The realization of the demands by the Government on 8 April. The Government stated that it would table the bill in Parliament in the upcoming session.

(3) The government’s agreement to have an equal distribution of the Government appointed officials and the members of the civil society on 9 April.

(4) On 13 May, Prime Minister Singh stated that the Indian Government had completed the ratification of the UN Convention against Corruption.

The bill however, being week initiated another wave of Hazare’s “Infinate Fast” protests. On 1 August 2011, public interest litigation was filed in the Supreme Court of India by Hemant Patil, a social worker and businessman, to restrain Hazare, alleging that Hazare’s demands were unconstitutional and amounted to interference in the legislative process.

On 16 August 2011, Hazare was arrested four (4) hours before the planned hunger strike. After four (4) hours in detention he was released unconditionally on a request by the police, but refused to leave Tihar Jail where he demanded unconditional permission to fast at Ramlila Maidan. Hazare continued his fast inside the jail and continued to receive support from people across the country. His fast continued until he was hospitalized for weight loss and dehydration.

His supporters started the campaign known as “I am Anna Hazare”, with his cap (topi) becoming a sign of resistance and to be displayed whenever someone asked for a bribe.

In 2011, Hazare demanded an amendment to the electoral law to incorporate the option of “none of the above” in the electronic voting machines during the Indian elections. The “none of the above (“NOTA”)” is a ballot option that allows an electorate to indicate disapproval of all of the candidates in an electoral system, in case of non-availability of any candidate of his choice, as his right to reject. The Chief Election Commissioner of India, Shahabuddin Yaqoob Quraishi supported Hazare’s demand for the electoral reforms.

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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.

Any queries may be directed to lawyereadia@gmail.com

Can I be stopped from undertaking competitive work after resignation from a company?

Restriction in a Contract: Professional / Employment / Trade Freedom

13 March 2014

Companies and firms in Pakistan usually contain a non-compete clause in their agreements. The wording of such clause can range from restricting another company from partaking in competitive work while engaged with the restricting party to restricting an employee from working with a competing firm after resignation.

Is such a clause valid and enforceable in Pakistan?

Yes, provided that it is reasonable.

Although Section 27 of the Contract Act, 1872 provides that any agreement that restrains a person from exercising a lawful profession, trade or business is void to that extent; the courts in Pakistan have held that a restraint of trade clause or a non-compete clause in an agreement is valid and is not hit by Section 27 provided that it is “reasonable”.

The test then falls simply on the question of whether such clause is “reasonable” which is evaluated on a balance of probabilities and evidence.

The High Court of Sindh in Exide Pakistan Limited vs. Abdul Wadood, 2008 CLD 1258 (Karachi) provided that:

reasonableness of the clause will vary from case to case and will inter alia, depend upon the following:–

the extent of duration;

the extent of the geographical territory.

The case law in Pakistan, briefly, illustrates the following principles:

(1) The restraint of trade clause should only be aimed at protecting interest of the employer and not aimed at penalizing the employee or causing him inconvenience.

(2) The clause should not be vague and generalized but should be rather specific.

(3) The clause shall only be the applicable to the particular type of business in which the employer is actually engaged in and not to any business activity in which the employer would possibly engage in the future.

(4) The restriction cannot be termed to be unreasonable as to time and scope i.e. “for eleven (11) months in XYZ Company”. By such covenant the defendant is not restrained from getting employment in an organization other than XYZ Company which is neither fair nor reasonable (see, Al-Abid Silk Mills Limited vs. Syed Mudassar Rizvi, 2003 MLD 1947 (Karachi)).

(5) A restriction may be placed as a form of good-will on the part of an ex-employee and to protect the ex-employer from having to compromise the fruits of his business because an ex-employee has opened up a competitive business in the same neighbourhood (see, generally, Shabih Haider Zaidi vs. Muhammad Zahoor Uddin, 2001 CLC 69 (Karachi)).

(6) In global contracts, incorporation of a restraint clause cannot be said to be hit by doctrine of restraint of trade, provided it is reasonable, on equal bargaining strength, is not unilateral and operates during the currency of the agreement (see, generally, Pak China Chemicals vs. Department of Plant Protection, 2006 CLD 210 (Lahore)).

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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.

Any queries may be directed to lawyereadia@gmail.com

Directors of a Company in Pakistan

14 February 2014

1. What do the Board of Directors do?

(1) Under the law, the Board of Directors is the repository of all corporate powers, except those powers which, by law, are to be undertaken by the shareholders or such powers which have been given to the shareholders under the Articles of Association of a company.

Section 196 of the Companies Ordinance, 1984 outlines the powers of the Directors.

(2) Directors have almost all the powers over the operation and management of the Company until they are removed. It has been held that the shareholders cannot undertake functions allowed to the Board under law (Abdul Malik vs. Janana De Malucho Textile Mills Limited, PLD 1973 Note 116 (Lahore)).

2. Can Directors hold Board Meetings through telephone/video conferencing?

Circular Number 20/2005 dated 10 November 2005 issued by the Securities and Exchange Commission of Pakistan allows the Board to conduct board meetings through telephone/video conferencing.

3. What if the matter is urgent and the Directors have no time to hold a regular meeting?

If the matter is urgent then the Directors may exercise certain powers on behalf of the Company without their formal meeting through a circular resolution or a resolution in writing, provided that this permission has been granted in the Articles of Association of the Company.

4. What are the fiduciary (ethical/legal) duties of Directors?

(1) In the Companies Ordinance, 1984, there are strict provisions for disclosure of interest/ conflict of interest of Directors (Sections 215 and 216)

(2) Directors must exercise their powers for (only) the purposes for which they were conferred and if they are for the benefit of the Company as a whole.

(3) Directors should ensure that they do not put themselves in a position in which their duties to the Company and their personal interests may conflict (Section 214).

(4) The Directors have a duty to take care of the Company.

5. What is the benchmark expected of a Director?

In discharging his duties, Directors must act honestly and must exercise such care as might be expected from an ordinary man (see, generally, Govind Narayan Kakade vs. Rangnath Gopal Rajopadhye, 1930 AIR Bombay 572). If a Director so acted, and the decision led to irregularities or losses, he would not be liable in negligence for breach of his duty of care (see, generally, Dovey vs. Cory, (1901) AC 477: (1895-9) All ER Rep 724 (HL)).

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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.

Any queries may be directed to lawyereadia@gmail.com

Procedure of Divorce in Pakistan – Part I (Khula)

26 January 2014

*This post is one in a series of posts regarding divorce (talaq/khula) in Pakistan. This post provides information primarily for “Khula” (a woman’s right of divorce under law). The remaining part of the series shall deal with (1) Procedure of Talaq by a Husband; (2) Property of the Wife after Divorce; and (3) Miscellaneous provisions re harassment by the spouse/family after divorce, overseas parties, drafting the suit for divorce and re-marriage.

Procedure of Divorce in Pakistan – Part I (Khula)

1. Marriage can be dissolved by:

(1) divorce by the husband at his will without any intervention of the Court (i.e. “Talaaq”).

(2) by the mutual consent of the husband and wife and without the need for intervention of the Court;

(3) by the wife in exercise of her contractual right of divorce (i.e “Khula”); or

(4) by the judicial intervention of the Court on the application of either party.

If delegated such right in the Nikkahnama, a wife can divorce the husband, such right is called a Talak-e-Tafweez (i.e delegated powers of divorce). Husband may delegate right to divorce while contracting marriage in the Nikkahnama.

2. “Khula” is:

Khula is the contractual right of a woman to seek a divorce from her husband in Islam for compensation (usually monetary) paid back to the husband from the wife. Khula allows a woman to initiate a divorce through the mutual consent of the husband or a judicial decree.

A woman seeks Khula while man gives a Talaq.

3. What grounds are available to seek Khula:

Under Section 3 of the Dissolution of Muslim Marriages Act, 1939 (the “Act”):

A woman shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:

(i) that the whereabouts of the husband have not been known for a period of four (4) years;

(ii) that the husband has neglected or has filed to provide for her maintenance for a period of two (2) years;

(ii-a) that the husband has taken an additional wife;

(iii) that the husband has been sentenced to imprisonment for a period of seven (7) years or more;

(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three (3) years;

(v) that the husband was impotent at the time of the marriage and continues to be so;

(vi) that the husband has been insane for a period of two (2) years or is suffering from leprosy or a virulent venereal disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of sixteen (16) years, repudiated the marriage before attaining the age of eighteen (18) years:

Provided that the marriage was not consummated;

(viii) that the husband treats her with cruelty (defined under the Act and includes verbal abuse, psychological ill-treatment, physical abuse, cheating, forcing her to lead an immoral life, disposing off of her property, obstructing her religious practise etc);

(ix) on any other ground which is recognized as valid for the dissolution of marriages under Muslim Law.

4. Procedure to obtain Khula:

(1) The wife may enforce her right of Khula if such right is relegated under the marriage contract (the “Nikkahnama”).

(2) If she is not delegated the right of divorce in her Nikahnama, then she could apply for Khula in the Court.

In filing a suit for dissolution of marriage, the Court issues notice to the opposite party i.e. the husband and if he fails to appear after the due process of posting and publication the Court can proceed with the case ex-parte (without him) and pass a decree (an order).

In case where the husband or his representative appear, he is required to file a written statement following which the Court has to fix a date for pre-trial proceedings for reconciliation. If reconciliation fails, the Court will pass decree for dissolution of marriage.

After obtaining Khula decree from the Court, the wife would need to file an application before the Chairman, Arbitration Council/Union Council of that jurisdiction for obtaining the certificate for the dissolution of marriage.

5. Filing of the divorce:

A divorce is filed where the marriage has taken place or where the marriage was registered; i.e. where the defendant is residing. The wife may also file a case at the place where she ordinarily resides.

Disclaimer: The above information is not legal advice but basic guidelines in respect of Khula in Pakistan. Each case is decided/evaluated/prepared in accordance with the individual/unique facts of the case. Nothing provided herein should be used as a substitute for advice of competent counsel.

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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.

Any queries may be directed to lawyereadia@gmail.com

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.

Any queries may be directed to lawyereadia@gmail.com