Free media and trust in state’s commitment to confidentiality of information: Dangerous disequilibrium

The country appears to have been facing a disequilibrium or an imbalance between free media and state’s commitment to confidentiality of information. In some talk shows in the media discussions are held and documents shown about a matter where through an Act of Parliament the State of Pakistan has assured confidentiality of information. Notwithstanding the parties and persons involved, it is essential that this disequilibrium be immediately corrected, otherwise the whole fabric of society will be torn apart it reparable damage. The State’s writ depends on its law enforcement agencies to enforce the law. If laws are violated for political and other reasons then some temporary benefit may accrue but in the process it can destroy the whole institution of the body described as ‘state’. The State is always impersonal and if personal biases are involved in running the matters of the state then society will certainly collapse.

In the last few days, an asset declaration made by an individual, who is an independent tax power but is also a politically exposed person, was discussed in a TV talk show. The primary question is whether or not the rights of the son who filed an asset declaration under a valid law duly approved by parliament were trampled upon only for the reason that there are some issues against his father. Our discussion is not about a particular case. Nevertheless, it is important to understand how the whole fabric of confidentiality of information is being rent asunder on account of inadvertent understanding of the legal provisions. This matter is further explained in the following paragraphs:

Pakistan’s parliament under the leadership of the then prime minister Shahid Khaqan Abbasi promulgated an Ordinance which is termed ‘the Asset Declaration Law 2018’. It is the first law of this nature in Pakistan as it is not the byproduct of any other act relating to income tax, banking, or foreign exchange; it is itself a comprehensive law. Under this law, any asset declared will be beyond the purview and provisions of all laws and regulations relating to income tax, banking and foreign exchange. Furthermore, it has been especially stated that any information contained in the declaration made under that law will override the provisions of the Information Act and no information as contained in that declaration can be made public in any manner what sooner. Any person who commits that mistake or offence will be punished under the Pakistan Penal Code (PPC). Accordingly, in addition to general right of confidentiality relating to information contained in the income tax return as has been recently reiterated by the Supreme Court of Pakistan in the case of Justice Qazi Faez Isa, the information under this declaration contains another shield of protection in relation to confidentiality of information. The law in this respect is absolutely clear and there is no confusion at all. It is my view that persons who are indulging in disclosing such protected information are aware of these principles laid down in the law. The trespassing in my view is being committed on account of an inadvertent understanding where it is assumed that declaration has been made wrongly. It is my duty to clarify that process also, so that there is no further breach of law.

Under the Asset Declaration Law 2018, and also a similar law of 2019, a public office holder is not allowed to file a declaration under the aforesaid law. This means that any declarations made by such persons are deemed not to be there. If so, the additional protection under the asset declarations law becomes inapplicable. However, the point that is being missed is that children not being minors of a public office holder can make a declaration or declarations of their own. They are entitled to claim all the rights that the law has conferred to them. If any person divulges any information in his or her return, then that person is punishable under the PPC. It appears that in the recent past this error has been made, most probably inadvertently, where the declaration of a person being a major and the son of a public office holder are being exhibited on TV. This is absolutely wrong and criminal in nature. This matter needs further elaboration even from the point of view of the person who is making such exhibition or display. The author of this article in an earlier write-up on the similar subject has noted that on account of a ‘Reverse Probing’ the basic theme of the law is being abrogated. By reverse probing it means that declaration of the son is being challenged on the ground that the said declaration is not valid under the law for the reason that the asset disclosed is the asset of the public office holder. The question is whether such reverse probing is allowed and if not then what are the safeguards for the State of Pakistan that protection under the asset declaration law is not abused, especially in relation to disqualification of public office holders in filing such declarations.

In the asset declaration law this matter has been duly accounted for. There is a section relating to ‘Misrepresentation’. This means that if a return has been filed and misrepresentation is proved then that declaration becomes invalid. The primary principle of misrepresentation is that information contained in the declaration cannot be the basis of misrepresentation. If so, the guaranteed protection shall become meaningless. Accordingly, the process is that through third party sources and proceeding under any other law including income tax law it is established that assets declared by a person represent the asset of the person who was not entitled to file declaration then there can be initiation of proceedings against the person who made a misdeclaration under the asset declaration law. Before reaching that stage all the acts undertaken are not only illegal and criminal but very injurious for society as through these demonstrations it is being exhibited that the State of Pakistan is losing its control over its organs. Pakistan Electronic Media Regulatory Authority (Pemra) and all other regulators are advised to intervene to ensure compliance of law. This is not the matter of any particular individual. Furthermore, it is also not the matter of morality or ethics and validity of the law relating to asset declaration laws. As long such laws exist there cannot be any breach. It is to be noted that there cannot be any retrospective amendment as a fundamental right has been conferred and that has already been availed. Once already availed the same cannot be taken back especially in relation to a person who opted for the same. It is hoped that this matter will be taken up on an emergent basis. People may come and go but the state will remain with full authority.

Striking a delicate balance between free media and state’s responsibility to safeguard its commitments is very important in the present times where electronic and social media are rendering excellent services in relation to dissemination of information; however, whilst doing so, the equilibrium between the free media and the state’s responsibility should not be disturbed. We need free media within the boundaries of law.

Copyright Business Recorder, 2021