LHC says president can’t overturn Ombudsman’s verdict

Right to Information cases

ISLAMABAD: The president has no authority to hear appeals in the Right to Information (RTI) cases, and the federal ombudsman’s decision will be final in this regard, the Lahore High Court (LHC) ruled here on Friday.

The LHC one-member bench set aside a presidential decision, given in favour of the Federal Bureau of Revenue (FBR), on its plea on denying information to a request.The verdict had surprised many besides bringing to light the encroachment of authority by the president for over 14 years.

Justice Shams Mehmood Mirza-led bench delivered the landmark judgment while hearing a petition of Waheed Shehzad, Advocate. He was refused information by the FBR and an appeal before the Federal Tax Ombudsman (FTO) had won him a favourable verdict. However, the FTO’s decision was set aside by the president when the FBR filed a plea before him.

The court, while interpreting the authority of the ombudsman and the president, focused on their powers with regard to the matters pertaining to the RTI applications.The federal ombudsman is an appellant authority against all federal government bodies except for revenue department, whose cases are dealt by the Federal Tax Ombudsman. Similarly, in all complaints, the ombudsman gives its opinion in the form of recommendations, except for in the RTI cases, in which he is authorised to issue directions. The Freedom of Information Ordinance 2002 does not mention any appellant forum beyond the ombudsman.

The Freedom of Information Ordinance was promulgated in 2002, and the president has been deciding representations in the cases pertaining to the RTI applications since then without having any jurisdiction to do so. This exercise went on as neither any one challenged nor the presidency surrendered this usurped authority.

The court said the president is authorised to take up a representation, filed by any grieved party against the recommendation of the ombudsman; not when the direction is issued.This difference between recommendation and directions “must not be lost sight of as it brings into sharp focus the type of jurisdiction being exercised by the Tax Ombudsman under Section 19 of the FOI Ordinance,” the court ruled.

Waheed Shehzad, the petitioner, had filed an RTI request demanding of the FBR to provide information regarding recommendations, issued by the Alternate Dispute Resolution Committee and the orders passed by the FBR on the said recommendations. As the FBR declined to pass on the information citing Article 8 of the Freedom of Information Ordinance that deals with exempt of information, he filed a complaint before the FTO, who ordered for releasing the requested information.

The FBR, instead, went into a representation before the president, who accepted it and dismissed the FTO verdict. The complainant filed a petition before the LHC, raising very important questions. Among others questions, he asked whether the FBR was competent to file a representation against a decision (not recommendation) and how come the declined information fall under the scope of Article 8.

The court, in its 25-page long verdict, discussed the case in detail and held that the president had no jurisdiction to entertain and pass a decision on the representation, filed by the board against the decision of the Tax Ombudsman.

“(The) FOI Ordinance was clearly intended to cast aside the era of closed government and to transform the culture of secrecy to one of openness. Unnecessary secrecy in government and public bodies undermines good governance and the public administration,” it further noted.

The order stated: “Article 19-A was inserted in the Constitution through 18th Amendment which gives every citizen the right to have access to information in all matters of public importance, subject to regulation and reasonable restrictions imposed by law.

“In addition to the FOI Ordinance, the citizens now have the constitutional guarantee of freedom of access to information. After the introduction of Article 19-A of the Constitution, the exclusions contained in Section 8 of the FOI Ordinance shall have to be strictly construed justifying the denial of access of public record to the citizens.”