President Gotabaya Rajapaksa’s appointment of new Commissioners to the five-member RTI Commission is a wildly mixed bag, analysts say, in the wake of a politically biased retired judge, Upali Abeyratne being put to head the body along with four other independent Commissioners.
The appointment of at least three Commissioners must specifically be on nominations submitted by the Bar Association of Sri Lanka (BASL), the organisations of publishers, editors and media persons and civil society groups. Only the BASL is named in Section 12 (1) (a) as an organisation which has a guaranteed single seat upon nomination of an ‘Attorney-at-Law of eminence or a legal academic.’
In 2021, BASL nominated senior attorney Kishali Pinto-Jayawardena for the seat. Ms Pinto-Jayawardena and the nominee of the Sri Lanka Press Institute, Justice Rohini Walgama, both of whom served on the first RTI Commission (2017-2021), have been appointed to the Commission following due recommendations made by the Parliamentary Council. Despite the Secretary General of Parliament calling for nominating organisations to send three names to the Council to choose from, the BASL and SLPI sent one name each.
Meanwhile the nominee of the Young Journalists Association (YJA) attorney-at-law and RTI activist Jagath Liyana Arachchi and the nominee of the National Movement for Social Justice, academic Athulasiri Samarakoon are the other two appointees to the Commission. All four appointments are widely hailed as merited, given the independent nature of the individuals in issue.
However, the appointment of the Chair of the Commission is the prerogative of the President according to Section 12 (5) of the RTI Act. The President may appoint a Chair from within the names recommended by the Parliamentary Council which replaced the Constitutional Council following the 20th Amendment to the Constitution.
It is not immediately clear as to who nominated the Chair Upali Abeyratne or if there was any nomination at all. A controversy has also arisen as to whether his appointment is in accordance with the RTI Act as Abeyratne, to all intents and purposes, currently serves as the Chairman of the Office of Missing Persons (OMP). A clear condition of the appointment of Commissioners according to Section 12 (2)(a)(iii) is that they should not hold ‘public or judicial office or any other office of profit’ at the time of the appointment.
The Government must clarify this situation, a senior practitioner in Hulfsdorp said. “it must show that no disqualification attaches to the appointment as this is a mandatory statutory requirement,” he further said.
The new RTI Commissioners have been appointed with ‘immediate effect’ and will sit for a term of five years. Since the end of September 2021, when the term of the first Commission lapsed, the Commission office has been largely non-functional with hundreds of appeals piling up according to reports. During its first term, the Commission won national and global praise for pro-transparency decisions impacting on multiple areas of the functioning of the State and issuing orders against the Offices of the President, the Prime Minister, the Cabinet and Parliament.