By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

Many governments around the world jib nervously at the thought of introducing Right to Information laws due to fears that these laws may only work against them. 

That fear is right, to a certain extent. But away from sensational media headlines focusing on information targeting the political line of command and attention grabbing conferences, enacting a good RTI law often works to the advantage of a Government. This is a fact that is often underestimated. A quiet and sometimes unnoticed transformation takes place as step by gradual step, ordinary citizens start probing and prodding a leviathan bureaucracy that in Asia, has been able to survive changes of political regimes without actually reforming itself in any manner whatsoever    

Citizens who are otherwise helpless facing this leviathan gradually realize that an information law may actually help them, perhaps for the first time in a historic background where laws are often worked against them. In fact, as we see in Sri Lanka, public officers themselves have used the law to expose injustice and even corruption. Speaking from the standpoint of Sri Lanka’s Information Commission, we see this acknowledgement of the good done by the country’s RTI Act regularly, from people who appear before us. 

That said, it must also be emphasized that two main principles informed the drafting committee which formulated the RTI Bill that was enacted into law in the month of August 2016. 

First was the principle of equity applied to state and non-state bodies in securing transparency. So the Act includes not only state entities and constitutional entities downwards from the office of the President but also corporates that function with government backing, private entities contracting with the government and non-governmental organisations substantially funded by government, foreign governments or international organisations to the extent of their ‘rendering a service to the public’. 

The Act also covers security and intelligence bodies unlike other regional RTI laws. There was a stern and uncompromising refusal to sacrifice best practice norms for expediency. So for example, in the face of considerable pressure that Sri Lanka’s law should have national security agencies or the department of the chief prosecutor exempted from its reach, our insistence was that no agency can be deemed to be above the law. 

This was a remarkable development. For decades, Sri Lanka’s civil and ethnic conflict had resulted in information being officially denied by the law. Non-disclosure of information was the norm while disclosure was the exemption. Departing from this thinking, the basic principle was that, where exceptions apply, these must be by subject matter not by the privileging of certain institutions. All of these are subjected to the public interest override. 

The second principle was that the conviction that RTI should not be seen as the enemy of the public service. The Act protects the information officer (as well as other officers) from any consequences of carrying out his duties under the Act (Sections 30 and 40) and also makes it an offence if any other officer refuses without reasonable cause to render assistance to the information officer when that assistance is sought. 

Sri Lanka’s Sri Lanka’s RTI emerged from a core group of committed journalists, academics and legal activists. It was not a people-based grassroots campaign. The media had consistently put right to information forward as an indispensable part of media-law reform. As a result, this was seen as a media tool, rather than a democratic or a broader civil liberties tool. Even so, it has been a source of considerable satisfaction that in the first one and a half years of it being operationalized, ordinary people have used it far more than the media or even civil society activists. 

I will use one illustration to make my point regarding the impact of this law on a system riddled with corruption for decades.                           

Late last year, the Pilots Guild of Sri Lanka comprising the national union of airline pilots in the country filed an appeal before the RTI Commission, asking for the salaries and other benefits paid to the CEO and other top executives of Sri Lankan Airlines, the national carrier along with substantial material relating to Board decisions taken by the management resulting in major losses to the airlines.

In fact, SriLankan Airlines is currently being run only on moneys given by the Treasury due to years of corruption, bad management and inefficiency turning a once profitable airlines into a hugely loss making burden. 

The Pilots Guild appeal was the 99^th Appeal to be listed before the Commission. It was resisted strongly by Sri Lankan with the national carrier coming to the Commission with lawyers using every skill in the book and every legal point, substantive and technical to resist giving the information. However, after six months of intensive hearing, the Commission handed down a 25 page Order directing Sri Lankan to give all information asked for in the public interest, excepting some documentation regarding an ongoing negotiation with Airbus SAS which was held back due to concerns relating to commercial confidence. Within a month of the Commission Order, SriLankan released the information asked for.            

And there are many more examples in this regard. The nature of the information released by Commission Orders includes;

• Reasons for decisions taken by regulatory agencies resulting in negative impact on freedoms of expression, such as the blocking of websites by the Telecommunications Regulatory Commission; 
• Processes of procurements and awarding of tenders, 
• Details relating to expenses incurred as a result of the overseas trips of politicians,  
• agreements between Sri Lanka and other countries relating to migrant workers, 
• Commissions of Inquiry reports that had been kept secret so far, one relating to the suspicious death in a plane crash of a Government Minister   under RTI, the first such report was released a few months ago upon an appeal being filed to the Commission. This was a report handed down by a judge condemning the actions of the police and the military when they stopped trade union activists from protesting during the time of former President Mahinda Rajapaksa’s Presidency, in the course of which several hundreds were injured and one young man was killed. 
• Draft laws (in Sri Lanka, a draft law is generally available to the public only after it is tabled in Parliament and then, citizens are given the right to challenge in court only during a short window of 2 weeks. Laws cannot be challenged after enactment even if they are unconstitutional)     
• Information relating to admission of children to schools, 
• complaints made to the police that are not inquired into 
• promotion and disciplinary procedures in state bodies and so on.
• Information in relation to moneys paid to private lawyers out of public funds without retaining state lawyers.   

Up to end August 2018, the total number of appeals lodged with the Commission was approximately 850. Of that number, approximately 650 decisions (both final and interim) have been delivered by the Commission. These are legally reasoned Orders that are all online on the Commission’s trilingual website.  

Interestingly, no Public Authority has refused to adhere to a direction of the Commission up to now and no appeal has been filed against a decision to the Court. As pointed out earlier, the majority of such appeals have been made by ordinary citizens. They are made from rural areas and by citizens who are well aware of the Act and its Regulations. In fact, many are using the Act to get things done which would otherwise have involved going to court with all the expenses that this involves and laws delays.   

An immediate result of these information requests is that, the final outcome often goes beyond merely releasing the information. So for example, when the police are put on notice to produce the inquiry held after a complaint has been recorded let us say of a petty crime, most often they are actually compelled to hold the inquiry. This was the case in the example of the Eastern mothers referred to above as well.

In many instances, information asked in regard to the admission of children to school is due to corruption in that process where a child who merits to be admitted into a particular school, does not. In several appeals before the Commission, children were admitted as a result of these irregularities coming to light.  In the North Central Province, villagers questioned the building of crumbling roads and tanks with the public money given to provincial administrators and found that a major percentage of the funds had been swindled. The officers were dismissed and the moneys recovered. The roads and tanks are now being rebuilt.             

But these appeals are a mere percentage of the information requests being filed as these relate to only those appeals that have been refused by the relevant body. In the North and East, Tamil and Muslims citizens have used the Act to ask for information on land use by the military and on detentions. In the South, the focus is on corruption and mismanagement in state institutions. On the one hand, citizens use the Act on a personal level. On the other hand, many use it for the common good and public welfare. In that sense, it is heartening to see that our country is heading towards an information culture, albeit slowly.

But there are worrying patterns of people in remote areas being intimidated by state officers when they file information requests. We had one instance where a journalist came to the Commission and complained that the Army had started keeping an intelligence report on him because he had filed many RTI requests. At that point, the Army was cautioned that if any instances of such intimidation are brought to the Commission’s notice, there will be severe consequences.         

The other fact is that, the strength of any information law is in its proactive disclosure provisions where bodies give information voluntarily rather than be compelled to do so. During the past year, the record on the part of Government authorities in this regard is not very positive as key Ministries are yet to adhere to those provisions.   

Will Sri Lanka’s RTI law transform the culture of secrecy, lethargy and corrupt practices that prevail across the state and private sector?  Early signs are good. However, Sri Lanka’s RTI has yet to be embedded into the societal fabric in a way that future Governments will hesitate to meddle with it too much. Consequently it is vulnerable to political changes in the future. If a potential Government actively embarks on a process of undermining RTI, is the process strong enough to withstand the inevitable shocks? 

Certainly that is a question that RT advocates and citizens need to contemplate deeply at this point of time.    

*Speech made by RTI Commissioner and attorney-at-law Kishali Pinto-Jayawardena at the IPDC Talks (International Programme for the Development of Communications) held in Kuala Lumpur on 28^th September 2018. The IPDC Talks is an initiative of UNESCO International Programme for the Development of Communication (IPDC) which is the only multilateral forum in the UN system designed to mobilize the international community to discuss and promote media development as well as serving as a laboratory of ideas on communication issues.