Despite nine prominent Non-Governmental Organisations (NGOs) in Colombo issuing a statement dated 17th December 2021 calling for minority representation on the RTI Commission of Sri Lanka, Colombo Telegraph learns that several have failed to make nominations of suitable Commissioners representing the minorities to the Parliamentary Council in the first instance!
Nominations by civil society are specifically provided for by Section 12 (1) of Sri Lanka’s globally hailed Right to Information (RTI) Act (2016). This is a special safeguard not present in other laws or in regard to other Commissions which was, according to the Act’s drafters at the time, deliberately put in to prevent politicised appointments. Following nominations under Section 12(1), the Parliamentary Council, which replaced the Constitutional Council under the 20th Amendment to the Constitution, proceeds to recommend the appointments to the President.
A minimum of three seats on the Commission have to be filled by nominees, with the Bar Association of Sri Lanka (BASL) being mentioned as the single organisation with a secured seat. Currently that seat is filled by the BASL nominee, senior attorney and globally respected constitutional rights advocate Kishali Pinto-Jayawardena. The second seat is allocated to the nominee of organisations of publishers, editors and media persons, in this case, former President of the Court of Appeal, Justice Rohini Walgama nominated by the Sri Lanka Press Institute. The third seat, allocated to ‘other civil society organisations’ is filled by attorney and well known activist Jagath Liyana Ararachchi, a nominee of both the Young Journalists Association and the March 12th Movement. All three appointments were made by President Gotabhaya Rajapaksa.
The fourth appointment made by the President was of the Open University academic Athulasiri Samarakoon, nominated by the National Movement for Social Justice (NMSJ) along with the parliamentary Opposition. Samarakoon accepted the appointment and then withdrew two days later citing a ‘conflict of interest’ with his work as an academic and activist were he to serve on the Commission. Upon inquiries made to the Open University, Colombo Telegraph understands that leave for Samarakoon to work at the Commission had not been approved by the University, which had also refused to ensure his payment at the Commission on the same salary scales applicable at the University. Payments along with perks and privileges to Sri Lanka’s RTI Commissioners are low compared to other offices. Questions have however arisen as to why the NMSJ had made the nomination and why Samarakoon had accepted the appointment without these matters being first clarified.
Meanwhile, on inquiries made by Colombo Telegraph, it is understood that out of the NGOs who had signed the statement asking the President to ensure minority representation on the Commission to fill Samarakoon’s vacancy, Transparency International (TISL – Sri Lanka) had forwarded several nominees under Section 12 (1). In its list of nominees however, TISL-Sri Lanka had involved itself in a major controversy by including a known Rajapaksa sympathiser, Pratibha Mahanamahewa in its initial list of nominees sent for consideration to the Parliamentary Council.
Mahanamahewa, a lawyer by training, served on the Human Rights Commission of Sri Lanka and defended the Mahinda Rajapaksa Government in the annual Human Rights Council sessions in Geneva when the Government was under attack for its war time abuses in 2009. Later, he defended former President Maitripala Sirisena’s appointment of Mahinda Rajapaksa as Prime Minister in 2018, as quoted in state run television at the time that ‘under the 19th Amendment, the President has the total legal constitutional authority to make the appointment.’ The appointment of Rajapaksa as Prime Minister was later ruled as unconstitutional by the Supreme Court.
None of the nominees named by TISL-Sri Lanka were affirmed by the Parliamentary Council. The Colombo Telegraph is also able to confirm that the Centre for Policy Alternatives (CPA) and its affiliate, the Centre for Monitoring Election Violence (CMEV) had not made any nominations to the Parliamentary Council for consideration to recommend for appointment to the President. It is not clear if the other organisations named in the December 17th statement, People’s Action for Free and Fair Elections, Centre for Policy Alternatives, Law & Society Trust (LST), Right to Life Human Rights Centre, Viluthu, Food First Information & Action Network of Sri Lanka (FIAN) and National Organizer, National Deshodaya Assembly had made any nominations. No public record exists to that effect. It is assumed that no nominations have been made.
Notably, the nominations made by TISL-SL, the Colombo Telegraph learns, includes a Tamil lawyer employed in the non-governmental sector as an RTI trainer who had since migrated overseas. Other than this, nominations of individuals representing Sri Lanka’s Tamil and Muslim minorities by NGOs under Section 12 (1) are not evidenced. If no nominations of candidates representing the minorities are presented before it, the Parliamentary Council is unable to recommend the same for appointment. A media rights activist commenting to Colombo Telegraph, pointed out that if TISL-Sri Lanka and other civil society organizations had called to ensure ‘diversity and public trust in the Commission’, the least they could have done is to have nominated good nominees reflecting those values. ‘This is all sensational talk and no action (NATO)’ he said strongly.
Further, though the statement by the nine NGOs’s on appointments made to the RTI Commission in December 2021 also heavily criticised the appointment of politically biased Supreme Court judge Upali Abeyratne as Chair of the RTI Commission, no legal action has yet been filed challenging his appointment even when he held the post of Chair of the Office of Missing Persons (OMP). Section 12 (1) of the RTI Act explicitly bars the appointment of an RTI Commissioner to include any person holding ‘public or judicial office or any office of profit.’
Currently, three independent Commissioners appointed as the nominees of the Bar, the editors and two civil society organisations hold the balance against the Commission Chair, analysts say. The fourth Commissioner who is yet to be appointed, is crucial and may influence majority decisions to be taken at the Commission, they point out. Sources at Sri Lanka’s Parliament affirmed to Colombo Telegraph that any appointments to replace Samarakoon at the Commission can only be made in mid January 2022 once Parliament resumes.