23 September, 2020

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Do Not Compromise On Your Right To Know: RTI Commissioner Kishali Pinto-Jayawardena  

Sri Lanka’s experiences with Right to Information took centre stage in Kuala Lumpur with the island nation’s progress with the RTI Act being discussed as a model for Malaysia during the days leading up to International RTI Day (28th September 2018). 

Following a historic general election of Malaysia in May 2018 that changed the political landscape of the country, the new Government had promised a freer society, the cessation of use of sedition and criminal defamation laws to suppress opposition politicians and activists and the guaranteeing of the right to information.     

Marking these developments in a press release from Jakarta this week, UNESCO announced its hosting, for the first time in Malaysia, the IPDC Talks (International Programme for the Development of Communications) in collaboration with the Asia-Pacific Institute for Broadcasting Development (AIBD) and the Radio Televisyen Malaysia (RTM) with six experts, including three international and three Malaysians, providing their perspectives on global and local point of views from national institutions and academia. 

The speakers included H.E. Steven Sim Chee Keong, Deputy Minister for Youth and Sports, Kishali Pinto-Jayawardena, Commissioner of Sri Lanka’s Right to Information Commission, Dr. Azmi Sharom, Faculty of Law, University of Malaya, Amos Toh, Legal Advisor to the United Nations Special Rapporteur on the right to freedom of opinion and expression and Barbora Bukovska, Senior Director for Law and Policy, Article19.org. 

Dr. Ming-Kuok Lim, the Advisor for Communication and Information for UNESCO Office in Jakarta and the Deputy Secretary-General of the Ministry of Communications and Multimedia, Mr. Tan Chuan Ou opened the IPDC Talks in the morning.

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. 

The Colombo Telegraph reproduces excerpts of the address by Sri Lanka’s RTI Commissioner Kishali Pinto-Jayawardena (courtesy UNESCO, Jakarta office):                                  

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 99th 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.      

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Latest comments

  • 5
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    In other breaking news

    Canadian legislators, in a symbolic move, on Thursday voted unanimously to strip Myanmar’s civilian leader Aung San Suu Kyi of her honorary citizenship in response to crimes committed against the Rohingya minority.

    The House of Commons last week unanimously voted to call the killings of Rohingya a genocide, a move that Canadian Foreign Minister Chrystia Freeland said at the time was significant.

    “Our government supported this motion in response to her (Suu Kyi’s) continued failure to speak out against the genocide of the Rohingya, a crime being committed by the military with which she shares power,” said Freeland spokesman Adam Austen.

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      Dear CMB Telegraph,

      Would you be so kind to highlight this story and inform your readers, so as to pressure the police & Government to take cation on this violent MOB trying to destroy this Animal Charity by every possible violent means and the usual police in action.

      We saw the double standards where Ministers and many people were outrages when a Leopard was killed in the North. It was not because they care for law , justice or Animal rights but because this happened in the North and Tamil Lankans were involved. If not there would be action and outrage take against this mob holding this Animal sanctuary hostage demanding the charity money, and medical supplies provided by well wishers.

      https://www.youtube.com/watch?v=VwoN9HCLn94&feature=youtu.be
      A Wave of Violent Attacks Targeting Animal SOS Sri Lanka

      http://www.wnow.lk/play/Animal-sanctuary-attacked-by-mob/246-606
      Animal sanctuary attacked by mob

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      It’s good for international community to address/respond to the reason for Myanmar problem rather than blaming Aung San Suu Kyi.

      It seems to be correct that Rohingya people suffer in the hands of Myanmar military but when their presence become a problem to Myanmar’s integrity & social stability?

      Rohingya people are squatters from Bangladesh so why don’t international community put pressure upon BD to accommodate them in their country?

      If it’s something difficult to achieve Take Rohingya people to the task of being compatible with Buddhist Myanmar people shedding their religion inspired extremist lifestyle for smooth co-existence as Myanmar citizens.

      So the problem should be solved through helping Myanmar & Aung San Suu Kyi unless HR body, UNHRC will be found to be an ineffective & controversial organization.

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    Rohingyas are being killed in ‘installments’ by the same women whom the West helped to be released from House arrest. However the Sri Lankan Tamils were killed in thousands in a week. Can’t it be referred to as’ PARTIAL GENOCIDE’.Why this discrimination?

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      The whole island Sri Lanka is traditional homeland of Sinhalese though Tamil population is majority in the North so it’s the gravest discrimination against the majority community; why this discrimination when equal rights are enjoyed by Tamils?

      Why don’t Tamils as well take the whole island as their homeland?

      Rohigyans are also little by little trying to grab a piece from Myanmar so isn’t it a discrimination against Myamar people?

      Why are UNHRC so blind?

      Why is that discrimination?

      Are UN/UNHRC & international bodies deprived of RTI?

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        Real.

        Why is that your Religion believes in cutting, chopping, killing, maiming, raping, burning alive, doing horrific crimes against humanity.
        if you want similarities or examples let me know in advance.

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    Yes! We have made great strides in the process of RTI. The judging from the complaints, it is clear that the same type of complaint can be made again and again and therefore heard to give the same order. Therefore a system should be in place to serve an earlier order as a precedent. In order to prevent the same type of complaint made repetitively, the RTI should therefore mandate and issue general rules regarding the content available in the public domain which otherwise remain “confidential”. Tenders, unconscionable salaries paid to favorites etc. are areas which there is tendency to hide information in the guise of confidentiality and privacy.

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    I think Sri lanka is the first country in the wqorld to establish a RTI Commission. I heard commissioner of that is a CIA agent. Otherwise, RTI is CRAP in sri lanka. How about PColi report. RTI commission can publish that. Instead, it is hidden and all the thieves VVIPS in the parliament and any one and every one associated with them.

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    Kishali Pinto-Jayawardena,

    “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.”

    I visited the website and the latest Order in English for completed appeals is from May 2018. Are all the approximately 650 Orders for completed and ongoing appeals really published on line?

    “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.”

    How does a rural ordinary citizen appeal a decision in the Appeals’ Court? By retaining an attorney in Colombo? It is possible to appeal but who can afford it?

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    May I please pose a question to the sophisticated readership of CT. What recourse there is to a victim of a heinous crime seeking solace through the country’s (Srilanka) judiciary: the District Court Judge (with a blemish record), influenced by gratification delivers a judgement by accepting faked Deeds and false concocted evidence favouring the defendant, turning justice on its head. Two Appeal Court Judges confirm it upon appealing against it. Three Supreme Court Judges block the application to take up appeal challenging the Appeal Court decision. The Chief Justice disallows the Petition pleading for further consideration.

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    RTI is a mile-stone. It came about because the two teams in the home vs home game were out at/on Pidurangala Rock taking selfies.

    RTI on SriLankan Airlines has led to the tip of the iceberg of the culture of corruption/nepotism/impunity. The enthusiasm of commenters is low. On SriLankan Airlines? Not very much.
    But mention UNHRC or OHCHR or UNHRC and we have comments by the hundreds – most of these are irrelevant and/or bigoted. They are comments though.
    RTI may be the next ball used in the home vs home game.

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    I am proud of the RTI Act, and the Commission that gives it teeth. A lot can be done using the Act to get information.

    Often we hear rumours but cannot act on them. But now we can. When I heard that a department head at University of Jaffna had been given permission by the university council to practice law in private, I asked for the information under RTI and was shocked to learn that it is not only true but also the permission given was to practice without charge in the chambers of a President’s Counsel on the Council of University of Jaffna. Time to be spent on consulting work, the usual justifications required by the Establishments Code, etc. were missing. That is, the Council had given a lawyer free of charge to one of its members with the university paying the lawyer. I have turned the matter over to CIABOC which is carrying out an inquiry.

    In a more difficult case, when I was turned down for the trivial post of Senior Lecturer, Carlo Fonseka complained to Chandrika who asked the UGC chairman who in turn asked VC/Jaffna whose answer was conveyed in writing to Chandrika who showed it to Carlo. The answer from the then-VC was that I quarrel wherever I go, I am a Christian and I write against Arumuga Navalar. It was put in writing despite Section 30 of the Universities Act making religious discrimination and the application of faith tests illegal. Carlo has given an affidavit on what he saw. The UGC Chairman committing these reasons to writing and endorsing it shows what goes wrong when the UGC chairman is appointed only for doing surgery on the President.

    My RTI request for the letter was denied saying it was a personal letter. It was long ago. Is there a time limit for appeals to the Commission?

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      S. R. H. Hoole,
      .
      “My RTI request for the letter was denied saying it was a personal letter. It was long ago. Is there a time limit for appeals to the Commission?”
      .
      Two months but the Commission can accept “late” appeals if you give a good reason. However before the Commission you should appeal to the Designated Officer. There is again a time limit of two weeks but the officer can accept a “late appeal” with a good reason. Easiest is to file a new request and appeal the rejection first to DO and then to RTIC.
      .
      I know of appeals where the appellant did not receive important documents from RTIC at all or too late like an order to come to a hearing arriving on Monday when the hearing was on Tuesday. Tamil appellants have been faced with commissioners speaking in Sinhala with representatives of a Public Authority and given documents in Sinhala that may or may not be what the appellant requested. There are appellants who are unhappy about the result of their appeal but cannot afford going to Court.
      .
      “That is, the Council had given a lawyer free of charge to one of its members with the university paying the lawyer.”
      .
      I can only think about one PC who is a council member. Does this PC really want to work with the Head?:)

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        Thank you “Fact Checker.” Helpful. I will follow up.
        JH

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        Translated documents is a real problem everywhere.

        A Government office is in no duty to give a document in Tamil when it is maintained in Sinhala. The RTI Act says only that the citizen may state what language he ‘prefers’ the information to be given but does not order the Government to give it in that language.

        I have a friend living in Colombo, a long time Tamil resident who was very happy that the RTI Commission had ‘persuaded’ a state official to have the information released translated and given to him some months ago. But this kind of ‘persuasion’ is not enough. Can the Act be amended to order translations to be done?

        The Commission seems to be doing its best even with major stones in its path. It is true that ordinary people are benefiting. But after this Commission leaves, who knows what the others that come after, will do!!!!!!!!!!

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      Dr Jeevan Hoole,
      ¤
      “When I heard that a department head at University of Jaffna had been given permission by the university council to practice law in private, I asked for the information under RTI and was shocked to learn that it is not only true but also the permission given was to practice without charge in the chambers of a President’s Counsel on the Council of University of Jaffna.”
      ¤
      You received a reply from UoJ in this sensitive matter without resorting to an appeal to RTIC. This shows the power of RTI Act and even more that UoJ is afraid of you and social and conventional media. Somebody at UoJ has understood that not replying to you would lead to you publishing all details in the media including all appeals.
      ¤
      Please visit RTIC home page and study the appeals if you have not done it already. There are UoJ lecturers who were not treated as you by UoJ.

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      J. Hoole,

      The Head is going to step down as UoJ lawyer and try to finish his doctorate end of 2018.

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    Madam Kishali,

    “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.”

    Just wait and see how Jaffna College reacts.

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