15 October, 2018

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‘Official Secrets’ & De-Mystifying The Law Through RTI

By Kishali Pinto-Jayawardena

Kishali Pinto-Jayawardena

It has been close to nine months since the Right to Information Commission of Sri Lanka commenced hearing appeals under the RTI Act, No 12 of 2016. The Act was operationalised on February 3, 2017 and the first appeal came before us in late April 2017. Since then, it is evident that the thirst for information has had no boundaries and no barriers, class, community or race as the case may be.

Appellants include farmers seeking information on the issuance of land permits from distant regions of the Mahaweli Zone, northern residents looking for environmental approvals regarding projects that threaten the livelihoods of war affected communities, disabled soldiers asking for information to obtain their disability benefits, patients requesting medical reports and parents demanding details of school admissions of children. Civil society groups and journalists have also petitioned for the release of information that challenges state accountability at the highest levels.

Only in the rarest of cases have lawyers been retained by the appellants to plead their cause. In most instances, the appellants appear in person. This is welcome as it points to the demystifying of the law in the search for justice. For a conflict-torn country which has seen its systems degenerate, its institutions break down and its law become relegated to empty theory, this is a sign of hope.

As the year closes, the commission has listed more than two hundred appeals before it for hearing out of an approximately estimated five hundred and fifty appeals. It has issued several orders in concluded or pending cases leading to the release of information on procurement related issues and public sector transparency, the accountability of politicians as well as information on the observance of due process safeguards by state entities. One notable example was the release of documentation relating to court martial proceedings by the Sri Lanka Army. Up to now, the adherence of public authorities to these orders issued by the Commission strictly in terms of the RTI Act has been largely and quite overwhelmingly positive.

Using RTI to reform the governance process

Appeals to the Commission do not merely ask for information at a personal level (though there are many of these as well) but focus on the governance process broadly. I will take some examples to illustrate this point.

Reports of Commissions of Inquiry had not been released to the public for decades as the law did not obligate the President who is the appointing authority, to release them. Now, 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, in the course of which several hundreds were injured and one young man was killed.

Many appeals pertain to alleged corruption in the public sector process. Clearly, the underlying reason in filing these appeals is the hope that the release of information on corrupt practices will have a ‘chilling effect’ and be a deterrent. For instance, the first appeal that came before us resulted in the disclosure of information as to how a municipal council had permitted a contractor to fill a land which had caused floods in the surrounding areas. In other examples, information on permissions for unauthorised constrictions, expenditure of funds on government projects and details pertaining to appointments to provincial legislative assemblies as well as the travel details of politicians have been released.

The Commission’s view has been that though powers, privileges and practices of Parliament and provincial councils are among the exemptions on which information may be withheld in the Act, the exemption cannot be blindly cited. The Parliament or provincial council may cite privilege in an institutional capacity. But that does not mean that each and every action of individuals attracts the protection of privilege. The public interest is uppermost. A key underlying principle is of accountability in governance. Justice Louis Brandeis put it best when he said that ‘The most important political office is that of the private citizen.’

On the one hand, citizens have used the Act on a personal level. On the other hand, many have used it for the common good and public welfare. It is also interesting that public servants themselves have used the Act to obtain information in regard to disciplinary action taken against them institutionally.

Silence to an RTI request is not an option

The RTI Act applies to each and every constitutional and statutory office, department or agency, from the office of the executive President to corporates that function with government backing and private entities contracting with the government.

Also included in these categories of public authorities are educational institutions (state or private) that are established recognised or licensed under any written law or are state funded and non-governmental organisations substantially run with public funds, whether from local or foreign governments or from international organisations, to the extent of their ‘rendering a service to the public.’ National security agencies are not exempted unlike elsewhere in the region. The basic norm is that, where exceptions apply to the release of information, these must be by subject matter not by the privileging of certain institutions. In any event, even the exceptions are subjected to the public interest override.

The bill was drafted with the objective of protecting public officers from external pressures. Its core purpose is to reform an inveterate practice whereby government officers are silent when information is asked for. Under the Act, when a public authority seeks to deny the information, it must do so strictly in terms of the law and cannot deny irrelevantly. It also cannot stay silent.

I am not attempting here to trace all the principles of the Act but merely to give an idea of the primary considerations that weighed with us at the time. Information laws had been operating for several years, in South Asia. Avoiding pitfalls in those experiences as well as the manner in which the law had been circumvented in this country was a core concern. The importance of consultations was underscored by amendments being adopted to the bill after it was released for public feedback. Tellingly, the demand for a statutory right to information was so insistent that no politician felt able to vote against the bill on the floor of the House

Challenges for the future

Despite brave and persistent use of the RTI Act by Sri Lankans during the first few months of its operationalisation, formidable challenges remain. 

The release of information is still a long way away from being an organic process where the ‘culture of secrecy’ yields to a ‘culture of openness.’ Public authorities prefer the safe option of coming to the commission to obtain orders to release information, even in mundane instances where information ought to be automatically released. Citizens have complained before the Commission that some public Authorities have not put quick processes into place to assist the information requester. Even when information officers are appointed, they often have little idea of what their task ought to be. Conforming to the timelines mandated by the Act is merrily disregarded by some ministries. And others adopt delaying tactics.

Public awareness of the procedures of requesting and appealing for information remain important with the commission having to request the re-filing of a considerable number of appeals for non-observance with the Act. This is perhaps natural in the initial stages. Awareness-raising of the RTI Act will be a priority with the Commission itself as it gets its own budget and human resource personnel in the coming months.

But apart from the successes of reactively requesting information during this short period, the picture is very different where pro-active disclosure of information is concerned. Many ministries lag far behind what is required under the RTI Act. Ensuring voluntary disclosure of information is a basic pledge that Sri Lanka has made to the Open Government Partnership (OGP) which aims at improving the quality of governance as well as the quality of services that citizens receive.

This links up with the RTI requirements of pro-active disclosure as spelt out in Sections 8 and 9 of the Act read with the corresponding Guidelines of the Commission and Regulation 20 of the RTI Regulations gazetted in February 2017. Voluntary disclosure of information by public authorities on their internal accountability processes is the actual strength of RTI. This is where the core of the political commitment to RTI and OGP lies, not so much in action plans or in enthusiastic rhetoric.

It is hoped that we will see solid progress in this regard in the coming year.

Excerpts of the presentation by RTI Commissioner and attorney-at-law Kishali Pinto-Jayawardena at the Leaders Roundtable Sessions on the Role of Accountability Institutions held at the Asia Pacific Leaders Forum on Open Government convened by the Government of Indonesia at Jakarta, on December 14, 2017

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Latest comments

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    Kishali

    Please tell us whether the names and current whereabouts of persons surrendered to the Army at Nandhikadal during the end of the war and similar details of all persons detained by armed forces on suspicion of having connection with LTTE could be obtained if an application is made under RTI Act.

    As you may be aware relatives of persons surrendered but made ” disappeared” subsequently are engaged in continuous protests over 300 days with no relief in sight. President is keep on cheating these poor villagers. TNA has no interest in this matter. Relatives have no hope on OMP at all. As you are an eminent lawyer, activist and Commission member would you please show them a way that will bring relief to them.

    • 0
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      MR’s question is easily answered by a simple look at the RTI Act. Nothing stops such requests.

      It is up to committed people to make them! Let us try!

  • 1
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    Threats and blackmail are used to stymy the efforts of RTI seekers – the tools of trade are kidnap, disappear and the like.
    If RTI is to function as intended there must be law and order. If there is law and order then RTI is superfluous. Can hear in the background “There is a hole in the bucket dear Lisa ……”

  • 0
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    In a country where the Head of State declares that he will protect the War Heroes would the RTI Act be enforceable?!

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