By Faizer Shaheid and Ruwan Laknath Jayakody –
More than a year since the original Right to Information draft bill was first presented in Parliament, the bill was resubmitted with significant improvements made. The Government had held several public consultations in this regard where several intellectuals participated and the recommendations appear to have been largely heeded to. When the bill was originally presented in January last year, several criticisms were made and the bill was claimed to be badly done. However, through a committee led by Dr. Jayampathy Wickremaratne, the Government took in stakeholder recommendations and the final bill was presented in Parliament on 24 March, 2016 by Minister of Parliamentary Affairs and Mass Media, Gayantha Karunathilaka.
What is Right to Information?
Most people do not understand the victory of the people through this Act. Research Director of Verite Research and Attorney-at-Law, Gehan Gunatilleke through his research contributions has made a few points relating to the uses of this right. The Right to Information is the right of the people to access and obtain information in regard to matters that are political or apolitical and relevant to the public individually or as a group.
Secondly, it promotes transparency and accountability of our politicians that we have elected to office. By directly being able to obtain information regarding various projects, we would know exactly what our representatives are doing. This way, the people at large, including those in the rural communities would know be aware of the actions of their Parliamentarians.
Thirdly, it minimizes corruption and wastage. The open access to information would enable the masses and the law enforcement forces to act against any wrongdoing by our political representatives.
Such a right would be the epitome of the attainment of Article 3 of the Constitution on sovereignty of the people. The Evolution of the Right to Information The Right to Information first emerged in Europe when the principle of Public Access developed in Sweden in the 18th Century. Sweden then became the very first country to enact a Right to Information Act in 1766. It allowed for unrestricted access to government information by availing documents.
The right grew to be popular with the people and further enhanced development objectives and civil liberties, the results of which were plainly visible. However, it was very late before Asia began to develop interest on the matter.
India was one of the first countries to introduce the right to its people. Yes, a country renowned for massive corruption in the past had taken very positive steps in the early 90s. It was not an easy task as the politicians were initially reluctant to enact such a bill that could potentially ruin their political careers. It took many demonstrations and campaigns to finally enact the act at state level, before finally achieving national recognition of the right.
In the early 90s, villagers from Devdungri in the State of Rajasthan were faced with severe drought and poverty. Relief efforts were often initiated at the local government level, but very little of the funds reached the people due to the overwhelming measure of corruption.
Civil society activists began campaigning vigorously, and the villagers of Devdungri heeded to them. They began demanding information on various projects and initiated various investigations. When they detected many corrupt activities of their politicians, they demanded reform and took to the streets.
Subsequently, many other villages in Rajasthan and Tamil Nadu followed suit and further pressure was applied to the local governments. After many struggles, the campaigns finally reaped benefit when the states of Rajasthan, Maharashtra, Goa and Tamil Nadu. Finally, in 2005, the Indian Central Government passed the Right to Information Act in 2005.
RTI in Sri Lanka
The topic on right to information in Sri Lanka was first introduced in the late 90s following the enactment of such an Act in certain federal states in India. Following endless discussions, the Act did not materialize. This was until it was presented in Parliament by the current Minister of Buddha Sasana, Public Administration, Local Government and Democratic Governance in 2003.
Heavy progress was made in regard to the Right to Information bill even having been finalized by a committee headed by the then Attorney General, K.C. Kamalasabeyson PC. Despite obtaining the thumbs up from the then UNP cabinet, no further progress could be made as the then President Chandrika Kumaratunga dissolved Parliament soon after an alliance was formed between her party and Janatha Vimukthi Peramuna (JVP). Thereafter, the SLFP led government did not appear interested in having a Right to Information Act for no apparent reason.
When an attempt was made in 2010 by the then Minister of Justice and Law Reforms, Milinda Moragoda, then President Mahinda Rajapaksa blandly refused. He rationalized the statement saying that Sri Lanka did not require one as any information would be divulged upon request by journalists. Of course, he wasn’t lying. There was approximately 10% truth in his statement, because he did disseminate the favourable details of certain projects voluntarily even without the request of Journalists.
Karu Jayasuriya once more attempted to introduce the Right to Information bill as a private member bill in 2010. However, the defiant SLFP Government defeated the bill by 63 votes while 93 Parliamentarians absented themselves on the day of voting.
Having failed for a second time, the resilient Karu Jayasuriya stood up with the bill once more upon the introduction of the ‘Yaha Palanaya’ last year. It was one of the first bills raised in Parliament, but it never really took off as the rest of the UNP Government had prioritized other agendas at the time.
It was one of the election promises of Maithripala Sirisena which never materialized except through the Nineteenth Amendment to the Constitution. The Constitution could have only been activated through an Act of Parliament, and this Act was also seen as an election promise under the UNFGG manifesto. The bill was finally tabled in Parliament last week, and I must say the bill was drafted well. Ruwan Jayakody and I sat to review the bill once again, and we found considerably fewer flaws. Here are our recommendations for the Right to Information:
The phrase ‘Greater public interest’ needs to be defined in Section 5 (1) (b) (1).
The phrase ‘Seriously prejudicial’ needs to be interpreted as in Section 5 (b) (2). Further, ‘Sri Lanka’s relations with any state’ needs to be reworded as ‘Sri Lanka’s diplomatic relations with any state’.
Ideally, Section 5 (1) (c) (v) pertaining to the entering into of the trade agreements should be struck off. In the event the Government is reluctant to do so, the Government may follow the procedure laid down in the law relating to passing a bill in Parliament in respect of the overseas trade agreement. Eg: The Government should not make arbitrary statements regarding negotiations concerning overseas trade agreements until such time there is a draft or a penultimate draft of the said agreement which in its form could be presented for public perusal.
Subsequently, the Government must put in place or institute a mechanism to seek wide ranging stakeholder views across the board on the matter. Following this the Government may re-enter into final negotiations which should mandatorily consider the proposals including criticisms and recommendations of the draft if the said agreement made by the public. An individual should be able to challenge the draft agreement in courts if it is unconstitutional.
Expand Section 5 (1) (h) (2) to ensure that Parliamentary Privileges of the Parliamentarians should not serve as a right to reveal such information.
Since provisions on ‘Contempt of Court’ is hazy at best due to the vague and insufficiently specific law governing Contempt of Court in Sri Lanka, Section 5 (1) (j) if enforced could result in inappropriate denial of access of information to the general public.
Section 5 (k) should be completely removed. There is no necessity for such a provision.
Under Section 12 (1) the organizations or categories of organizations should be clearly specified so as not to create conflict. Subsections (a) and (b) are not an issue, but there remains ambiguity as to the other 3 Members of the Information Commission. Subsection (c) appears to be a little vague, and yet if one person is nominated from civil society, then it is vague as to whom the other two members will be. We recommend the inclusion of 2 persons each from categories (b) and (c). OR One member from civil society and 3 persons from Subsection (b), one each from the category of publishers, editors and media persons.
Under Subsection 12 (2) (v), the phrase, “Pursuing any profession” appears to be vaguely put. It is ideal to reword Subsection (v) in the following manner: “Are persons who shall agree to halt their businesses and/or professions to take up the role in the commission.”. In the event a Member of the Commission were to take up employment or commence a business, he or she should cease to be a Member of the Commission. This should be included in Section 12 (4) of the Act.
Under Section 25 of the Act, once the decision has been received to provide access to information, it appears to be unreasonable that access is granted within 14 days. This period is too long considering that all records are preserved by the public authority in a digital format under Section 7 (4). We recommend that the period to provide access to information be reduced to 3 days at best, failing which, a maximum of one week. The further 21 days as allocated under Section 25 (5) is also unreasonable and needs to be struck off for the same reasons.
The appeal process under Section 31 should also be fast tracked to receive a response within 3 working days from the date of the appeal.
The length of 1 month under Section 32, for the purposes of adjudication by the Commission, is also unreasonable.
Under Section 38, the Disciplinary Committee should possess power to impose a fine or a suspension, or take action to expel or remove information officers for anything committed under the Section.
We suggest that express provisions be included to legislate under the provisions of this act to include Non-Governmental Organizations and Charities subject to provisions in Section 5 (1) (g).
This is to prevent people from engaging in money laundering activities through charity based organizations.