Sri Lankan civil society activists were scrambling on Thursday (December 16th) to nominate a replacement for Dr Athulasiri Samarakoon who resigned from the country’s Right to Information Commission just two days after sending his letter of acceptance to the Presidential Secretariat.
Dr Samarakoon had been nominated by the National Movement for Social Justice (NMSJ) and was one of four independent Commissioners who had provided the balance to President Gotabaya Rajapaksa’s appointment on Saturday (December 11th) of politically tainted judge Upali Abeyratne as the Chair.
“We are looking for a nominee with guts to stand up to the Government with the other Commissioners and who is also knowledgeable about RTI,” said a media activist. “this is not an easy search” he said. “But if everyone resigns, the whole point of having nominees on the Commission will be lost,” he added. “We might as well hand over the job of making the appointments to the politicians without any need for nominations,” he said
The other nominees appointed by the President are senior attorney and bluntly critical columnist on the Rule of Law, Kishali Pinto-Jayawardena (nominee of the Bar Association of Sri Lanka), former President of the Court of Appeal, Justice Rohini Walgama (nominee of the editors and publishers forming the Sri Lanka Press Institute) and attorney at law cum long time trainer on right to information, Jagath Liyana Arachchi (nominee of the Young Journalists Association).
The Colombo Telegraph learnt, from inquiries at the office of the Commission that Dr Samaraskoon had forwarded a letter accepting the appointment to President Rajapaksa on Tuesday, only to resign two days later. Reportedly his letter of resignation claims that this is due to the inability to carry on his work in academia and civil society effectively and that continuation at the Commission will amount to a conflict of interest. In terms of Section 12 (2) of the Act, a person cannot serve on the RTI Commission if he or she is holding a public or judicial office or any office of profit. However, many observers say that this was an issue that the nominating organisation and the nominee both should have realised before the nomination was made.
Dr Athulasiri’s abrupt resignation has led to uncertainty in the filling of the remaining seat in the Commission. In terms of the RTI Act, if a Commissioner resigns, the same procedure of nomination and appointment must take place to fill that vacancy. But the Government can also ignore that procedure as it can maintain that the three seats reserved for the nominations are already filled. This would then lead to potentially a pro-Government person being appointed to fill Dr Athulasiri’s vacancy. Further, the recent appointments to the RTIC by the President had omitted any representative of the Tamil and Muslim communities.
“This gap must be filled,” said a Tamil journalist who had frequently used the RTI Act during the past five years since its enactment in 2015. “During the term of the last Commission as well, though there was a Tamil representative on the Commission, that Commissioner was mainly inactive and not interested in the Tamil appeals that came to the Commission,” he added. “We cannot have this same situation happening again, this vacancy must be filled by an independent representative of the minority communities,” he said.
An ongoing controversy meanwhile continues over newly appointed Chairman of the RTIC, former SC judge Upali Abeyratne serving as the Chairman of the Office of Missing Persons (OMP) at the same time. This is also an infringement of Section 12(2), lawyers point out, observing that it is shameful that a former judge appears not to take service in dual offices seriously, regardless of a clear prohibition operating in the RTI Act to prevent that exact situation. In angry social media messages, twitter users have asked as to what would happen if someone came to the RTI Commission to appeal against the OMP when the Chair serves as head of both. “Does the Government’s legal advisors not understand this basic fact of conflict of interest?,” they ask.