Mukhtar Ahmad Ali v. The Registrar, Supreme Court of Pakistan, Islamabad and another PLD 2024 SC 192

Case Title:

Mukhtar Ahmad Ali v. The Registrar, Supreme Court of Pakistan, Islamabad and another

Citation:

PLD 2024 SC 192

Court:

Supreme Court of Pakistan

Date of Judgment:

 16 October 2023 (heard on 27 September 2023)

Judges Present:

 Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

Author Judge:

Qazi Faez Isa, C.J. (Athar Minallah, J. agreed and wrote a separate opinion)

Parties:

Petitioner: Mukhtar Ahmad Ali

Respondents: The Registrar, Supreme Court of Pakistan, Islamabad and another

Brief Facts

On 10 April 2019, the petitioner wrote a letter to the Supreme Court Registrar. He asked for staff-related information: sanctioned strength, vacancies, daily-wage and contract staff, new posts since 2017, and the numbers of women, persons with disabilities and transgender persons employed. He also asked for a certified copy of the Service Rules. He based his request on Article 19A of the constitution and the Right of Access to Information Act, 2017.

After not receiving any response, he filed an appeal in Pakistan Information Commission (PIC). The Commission directed the Registrar of the Supreme Court and issued two reminders. On 8 August 2019 the Registrar responded negatively, citing an Office Order of 30 September 2014. On 12 July 2021, the Commission allowed the appeal and directed disclosure.

Then, the Registrar requested the Commission to cancel that order. On November 17, 2021, it rejected the request, stating that it did not have the authority to grant it. Five days later, the Chief Justice asked the Additional Attorney General to challenge the orders of the Commission, and, in the Registrar’s name, a writ petition was submitted in Islamabad High Court.

Decision of the High Court

A Single Judge allowed the writ petition on the date 03.04.2023. He decided that Supreme Court does not constitute a public body according to the provisions of the Act, and thus cannot be included in the purview of the Commission. The petitioner filed an intra-court appeal. A Division Bench dismissed it as time-barred without reaching the merits. The Petitioner as a self-represented litigant claimed that he got to know about the judgment through social media. He then filed Civil Petition No. 3532 of 2023 in the Supreme Court, seeking leave to appeal against the Islamabad High Court’s judgment.

Core Legal Issues

1. Could the Registrar start litigation in the Supreme Court’s name?
2. Does the Right of Access to Information Act, 2017 apply to the Supreme Court?
3. Can a citizen still seek information from the Court directly under Article 19A, and what counts as “public importance”?
4. Was there any lawful reason to withhold the information the petitioner asked for?-good analytical framing of issues

Decision of the Supreme Court

Qazi Faez Isa, C.J.

1. The Registrar’s authority to engage in litigation. The Supreme Court Rules, 1980 name the Registrar the executive head of the office. They do not empower him with the power to institute litigation. The Supreme Court, according to the definition of the Constitution, consists of the Chief Justice and Justices, and they did not approve of this litigation either. The Court indicated that the Attorney General represents the Federal Government, which belongs to the Executive Power, and mandated to be separate from the Judiciary The cases of Registrar Supreme Court v. Hassan Akbar and Registrar Supreme Court v. Qazi Wali Muhammad were distinguished. They addressed their own specific facts only and did not resolve this question.

2. The Act of 2017. The Court agreed with the Attorney General that the Act does not apply to the Supreme Court. The Court is created by the Constitution and is not a “public body” under section 2(ix), so it is not answerable under the Act. The appeal before the Commission was not maintainable, and the Islamabad High Court was right on that point. But the Court said the matter did not end there.

3. Article 19A. The Supreme Court does not escape the grasp of Article 19A. Information of public importance can be requested utilizing this article. Referring to the cases of Manzoor Elahi and Benazir Bhutto, the Court interpreted “public importance” as being anything that pertains to the interests of the society but not just private interest. Article 19A has replaced the “need-to-know”  to “right-to-know.” This means that it is the duty of the person who refuses to provide the information to justify his refusal.

4. Restrictions. The restrictions imposed by Article 19A are reasonable according to law. At present, there is no law or regulation of the Supreme Court on this issue. If any regulation is introduced in future, requests for information will be made in accordance with it.

Outcome. No grounds were provided for the refusal to provide this information. The case was converted into an appeal and accepted. The Registrar was ordered to provide information within seven days’ time and to return the court fee paid to the Supreme Court and High Court-     

Additional Opinion of Justice Athar Minallah

Justice Minallah concurred with the opinion of the Chief Justice, but added his own reasoning. He was more authoritative regarding the Act. According to him, the wording “subject to regulation and reasonable restrictions” cannot be interpreted to mean that the legislature can completely prohibit a public body from functioning. A proper interpretation of the Act shows that on the surface the Supreme Court cannot be considered as explicitly having been excluded from section 2(ix). While the Punjab and Sindh transparency Acts explicitly mention the High Courts to be amenable to the right to access law.

He cites Article 8 of the Constitution, which renders any law void for taking away or narrowing fundamental rights. The Parliament constitutes part of the “State” as stipulated by Article 7; thus, it is impossible that the goal was to ban the right for the citizens to gain information about the activities of the Supreme Court. If the Act were to be interpreted as granting immunity to the Court, it would have made it void (this opinion is minority position on the issue).

He stated that the Court is not in charge of weapons or finances, and that its power comes from the public’s trust. The matters of internal rules, people’s data, judges’ and workers’ privileges, the budget and expenditures of the Court are important for people and should be disclosed proactively, as people should not be obliged to request that information. He mentioned that although the Islamabad High Court is not covered by the law, the court voluntarily provided information to the citizen in 2021 because of the order of the Commission.

Significance

Mukhtar Ahmad Ali lost on the statute and won on the Constitution. The Court stated that while the 2017 Act is not applicable to the Supreme Court, it stated that Article 19A does encompass it. What made the case different is the fact that the burden of proof is reversed here. A citizen is not required to justify his wish for information and, rather, the institution must justify his refusal to provide it. However, there is still one flaw, as there is no law or regulation that the Supreme Court must follow while considering the appeal, which means that the outcome of every such refusal is assessed in regard to Article 19A. The decision also limits the authority of the Registrar as the Court acts through its Judges, while its Registrar cannot sue on its behalf. The verdict sets a precedent for holding the Court accountable for its actions.