Toshakhana: Disclosure is a must

Article 19-A of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution) confers the fundamental right for every citizen to have access to information, and also the Superior Courts have emphasised that access to information is a justiciable right of the people, stressing that all the pieces of information related to any public importance must be made available to the citizens. The Right of Access to Information Act, 2017 (Act) grants citizens complete access to the record of public authorities. It gives access to all public records including those in printed, written, or any form, transactions and expenditures, any information in possession of a public body in which the public may have a legitimate interest, information regarding grant of approvals, licenses, and allotments, benefits, and contracts made by a public body.
A citizen can formally make a request to seek information while a principal officer in the relevant department is bound to provide him with the required information within three to ten days. It is clear from the reading of Article 19-A of the Constitution, the Act, and the settled jurisprudence that the information sought is of utmost public importance. As it is an integral part of a progressive democratic state, the Superior Courts have elaborated upon the right to information and repeatedly stressed that the right to information and access to information in all matters of public importance is indisputably a fundamental right guaranteed under Article(s) 19 and 19-A of the Constitution. However, the Cabinet Division, Government of Pakistan infringes this right by stating that the pieces of “information requested... are classified and cannot be provided as per Clause-7 (F&G) and clause 16(1(a-ii) of Right of Access to Information Act, 2017”.
For so many centuries, the exchange of gifts has held different states together and made it possible to bridge the gulf between them. Such gifts reflect esteem, welcome and respect from both sides. Gift exchange, also called ‘ceremonial exchange’, may be distinguished from other types of exchange in several respects: the first offering is made generously and there is no haggling between the donor and recipient. Given judicial provisions and under Article 19-A of the Constitution, a citizen has sought information about all the gifts bought/ withdrawn/taken away by the Prime Ministers and Presidents of Pakistan since 1947 till date; and the information concerning the market value of the gift (prevalent at that time), the assessed value of the gift and amount paid by the recipients (presidents and prime ministers) of the gifts since 1947 till date. However, the Cabinet has refused to provide information about the gifts.
For not providing information in an identical request, the Cabinet Division had stated that the “requested information is sensitive as gifts are exchanged between the heads of states as well as heads of governments to give a personal touch to inter-state relations; and disclosure of such information could create media hype and result in unwarranted stories, thus, potentially damaging the interest of Pakistan in the conduct of international relations and jeopardising inter-state relations”. On the other side, it is a settled principle of law that information on matters of public importance is a foundational bedrock of representative democracy and the accountability of elected representatives. In this context, the fundamental right to information has to be protected under Article 19-A of the Constitution, the judicial provisions, and the Act. The superior judiciary in Pakistan has upheld the principle of maximum disclosure by saying that “as a rule, the information should be disclosed and only as an exceptional privilege should be claimed on justifiable grounds”.
Also, the Pakistan Information Commission (PIC) has, in various judgements/orders, held that information of public importance should not only be disclosed but the list should also be made available on the website of Cabinet Division, the government’s body authorised to and responsible for disclosing the information of public importance.
Article 19-A of the Constitution reads: “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.” It is also pertinent to mention here that details of Toshakhana gifts received during the premiership of Imran Khan have so far been disclosed by the Cabinet Division while no information to the extent of former prime ministers including Nawaz Sharif, Yousaf Raza Gillani, etc. and former president Zardari and other public servants has so far been disclosed by the Cabinet Division. The Cabinet Division is under legal and constitutional obligation to act fairly, justly, and transparently and is duty bound to provide the information, details, and documents given Article 19-A of the Constitution, read with Act.
In some identical matters, PIC through different orders directed the Cabinet Divisions to disclose information regarding details of the Toshakhana gifts.
Mr. Munir Ahmad, Advocate has recently filed a Writ Petition through my Law Firm (Muhammad & Ahmad) against the Respondents, especially the Federation of Pakistan through the Cabinet Division as well as the Ministry of Parliamentary Affairs amongst others for the immediate disclosure of the information about Toshakhana gifts. While hearing this Writ Petition, Justice Asim Hafeez sought from the Cabinet Division “to make available documents/material/official communication for the examination and inspection of the Court, exclusively, to enable the Court to ascertain and adjudicate the claim of privilege. Respondents shall submit a detailed report containing reasoning for claiming privilege and immunity from non-disclosure of information/documents. And also explain how disclosure of documents/information would harm or injure the public interest and prejudice international relations of the country in the context of relevant law”. The Court then adjourned the case for a hearing on 16.01.2022.
On 22.04.2022, an application was submitted for the provision of information about “All the gifts received by the Prime Ministers and Presidents of Pakistan who have occupied the office from 1947 till date...” and “Market Value of the gifts (prevalent at that time), the assessed value of the gifts and amount paid by the recipients (presidents and prime ministers) of the gifts since 1947 till date be provided to the undersigned.” The application, dated 22.04.2022, was arbitrarily dismissed by the Cabinet Division vide order, dated 28.04.2022. Against the illegal dismissal, an appeal was filed before PIC. Adjudicating upon the appeal, PIC in its order, dated 29.07.2022, declared, “This commission (PIC) has already given detailed judgments on the issue of disclosure, or, otherwise of gifts received by elected and public representatives from foreign dignitaries in Appeal No. 810-12/20 Rana Abrar Khalid Vs. Cabinet Division and Appeal No 1457-11/21, Pervez Said Vs. Cabinet Division.”
It already held in Appeal No 810-12/20 Rana Abrar Khalid vs. Cabinet Division “while giving “personal touch” to inter-state relations through the exchange of gifts between the Heads of State and Heads of Governments is a normal practice in the conduct of international relations, relations between any two states are dictated by common interests. While this commission does not foresee any possible harm that the disclosure of the requested information may entail, benefits of disclosing the requested information can hardly be exaggerated.”
When certified information about these gifts is made available in the public domain for everyone to see, the citizens will know that the gifts received on their behalf are being properly managed. The availability of certified information about the gifts deposited in Toshakhana in the public domain will not only make the entire process of the management of these gifts open and transparent, but it will also contribute to reducing the trust deficit between citizens and public institutions. With the disclosure of the information, even the citizens will come to know that their gifts are properly managed, resultantly, in strengthening people-to-people and inter-state relations.
The right to information stems from the requirement that members of a democratic society should be sufficiently informed about the decisions that affect their life so that they could contribute to matters of public importance. Our neighbours too, such as India and Bangladesh, have taken measures to ensure that the gifts received by government officials cannot be kept hidden from the public and would be displayed at some appropriate forum. Therefore, a Pakistani citizen Under Article 19-A of the Constitution is entitled to seek information about the affairs of the government.
It is also important to refer to how the former prime minister of Malaysia, Dr. Mahathir bin Mohamad, developed and implemented a transparent model for the display of various gifts, souvenirs, and awards of this nature. When he helmed the country as the Prime Minister, he established Galeria Perdana which is a unique gallery displaying and sharing with everyone the various awards, souvenirs, and gifts the Prime Minister and his wife received from the world leaders, statesmen as well as Malaysian people during his tenure. The former prime minister’s rationale for doing so was to reflect the reality that whatever he received as premier was on behalf of all the Malaysian people. As such, he believed that it was only appropriate for the country to have access to the collection of such gifts. This gallery comes under Malaysia’s Department of Museums and details on how to access the same are available on the Department’s website. In short, public access to information is a fundamental right that is being infringed upon as the opacity and secretive ways of running the affairs of the government breed corruption and damage the interests of the people. So, it is a must that the citizens of Pakistan should have complete access to the entire record of Toshakhana to ensure the process of fairness, accountability, and transparency.

Muhammad Azhar Siddique

The writer is an Advocate of the Supreme Court of Pakistan 
and Chairman of the Judicial Activism Panel.

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