By Kishali Pinto-Jayawardena and Venkatesh Nayak –

Introduction

In giving necessary context to Sri Lanka’s draft Right to Information (RTI) law disseminated by the current Government in order to obtain feedback from citizens, a few matters need to be clarified. In substantial respects, this draft is the 2003/2004 Bill of the United National Front (UNF) administration. This is quite evident by the insertion of the Legislative Draftsman’s Department, LDO Number 23/2003 on the left hand side of the Bill.

The 2003/2004 Bill was finalized by a committee headed by then Attorney General, the late Mr KC Kamalasabeyson, PC and including the then Justice Secretary, the Legal Draftsman, senior editors and public interest advocates. It was approved by the UNF Cabinet at that time. However, due to the Parliament being dissolved by President Chandrika Kumaratunga, this draft was not enacted into law. The Bill was further revised in 2010 by then Justice and Legal Reforms Minister of the Peoples’ Alliance, Milinda Moragoda who attempted unsuccessfully to enact an RTI law. Later, then United National Party opposition parliamentarian Karu Jayasuriya also attempted to bring in an RTI law as a private member’s Bill. This attempt was disallowed by the Rajapaksa government in power in a move widely condemned at that time.

Contrary to the popular perception of some therefore, the RTI Bill now in the public domain is not the end product of a new drafting process initiated by this Government in 2015. That exercise still remains to be engaged in, which is presumably why the call for public feedback was issued.

Learning from comparative experience

Some consequent issues arise as a result. Certain aspects of the 2003/2004 draft are salutary, such as the right of disclosure of information in the public interest and the duty imposed on public authorities to conform to RTI protections. In comparison to other RTI drafts, this draft was far more liberal. For example, the RTI draft law of the Law Commission of Sri Lanka was premised on a far more restrictive basis including parliamentary privilege as well as contempt of court among a wider list of grounds on which denial to information may be justified.

That said however, more than ten years have passed since that initial drafting process in 2003. The Bill needs to be carefully and thoroughly revised given the development of RTI best practice standards internationally with particular reference to South Asia itself where Sri Lanka’s neighbouring countries have enacted well reasoned laws. There is much that we can learn therefore from comparative experience. This analysis is being written with that objective in mind. It is not proposed to deal with all the revisions that need to be made to the Bill due to space constraints. Rather, a few imperative revisions will be discussed.

Relatively uncontestable revisions of the Bill relate to the correction of Clause 12(1)(b) of the Bill. As per the initial framing of this Clause in 2003/2004, this inadvertently specifies appointment of RTI Commissioners to be in the hands of the Minister whereas the actual applicable provision is the (later revised) Clause 12(2) which vests the appointment power in the President on the recommendation of the Constitutional Council.

Similarly, Clause 31 which states that ‘the granting of access to any information in consequence of a request made under this Act shall not be taken to constitute an authorization or approval granted by a public authority or the Commission, of the publication of such information by the person to whom the access is granted’ was inserted at the insistence of the government at that time. This may be deleted entirely. This provision amounts to an unreasonable restriction on the freedom of speech and expression of people in Sri Lanka. The purpose of an RTI law is to enable free flow of information from public authorities and private entities to people who may then use them in their debates, discussions or other kinds of legal interventions. An RTI law must not place restrictions on such hard won liberties.

Clarifying some misconceptions

Putting this aside, a few general misconceptions regarding this 2002/2004 RTI Bill needs to be clarified. First is the claim that the 2003/2004 RTI Bill as revised only applies to institutions of the central government. This is not so. Clause 40 brings in ‘local authorities’ within the ambit of the definition of ‘a public authority.’ A local authority is defined to mean ‘a Municipal Council, Urban Council or a Pradeshiya Sabha and like bodies. It also includes ‘any department or other authority or institution established or created by a Provincial Council.’

Second the Bill’s obligation to provide information is not limited only to government bodies. The Interpretation Clause (Clause 40) specifically defines a ‘public authority’ to include interalia, ‘a company incorporated under the Companies Act, No.17 of 1982 in which the State or a public corporation or the State and a public corporation together hold a majority of the shares.’

It may be suggested however that the rider as to ‘majority’ shares be taken out in this clause so as to further expand the reach of access to information. Further, a private entity or organization rendering any service which is of a ‘public nature’ is included within this definition of a ‘public authority’. A valid concern has been raised as to whether the phrase ‘private entity or organisation’ (subject to the rider of rendering a public service) is a tad widely framed.

One suggestion may be to reword ‘public service’ as ‘public functions’ which is a clearly defined term in administrative law and constitutional law and has been the subject of several judgments of Sri Lanka’s Court of Appeal and Supreme Court. This issue needs to be examined. It must be said meanwhile that South Africa has taken the lead in bringing even purely private entities within the ambit of a domestic access to information law, with a significant qualification. Access to information from a private entity is available as a matter of right only if it was required for the exercise or protection of any right recognised by law.

As it stands, the Interpretation Clause is framed in such a manner as to (arguably) bring in political parties as well as non-governmental organizations registered under the Companies Act within the reach of the duty to disclose information.

Expanding the reach of RTI

The argument about extending RTI obligations to political parties is very clear. It is recommended that all organs of the State be covered by the RTI law in keeping with the internationally recognized principle of maximum disclosure. Political parties may be included under the purview of this law in order to make them directly accountable to the people they seek to represent. Political parties are covered by the RTI laws in Poland and Nepal. The argument for bringing political parties within the ambit of the RTI law rests on the premise that people should have the right to seek information from such bodies as their due and accountable functioning is essential and fundamental to democratic electoral politics.

The travails that Indian RTI activists have had to undergo in this regard are instructive for Sri Lanka. In June 2013, a 3-member bench of the Central Information Commission (CIC) held six national political parties to be covered within the term ‘public authorities’ under the Indian RTI Act. In December 2013, instead of challenging this order in court, the political parties authorised the government to make amendments to the law to keep all political parties (not just the national parties) out of the RTI Act. The Government introduced an amendment Bill in Parliament later that year.

Indian civil society launched a major campaign to get the amendment Bill withdrawn or at least have it referred to a Parliamentary Committee. That did happen when the Bharathiya Janatha Party (BJP), then in the Opposition capitalized on the public mood against the amendment. With the dissolution of the Lower House last year, this Bill has lapsed. The current government has not revived it. Currently the CIC is hearing a complaint case about non-compliance with its orders by the six national political parties which it had named. These parties have not deigned to appear before the CIC in manifest contempt.

Certainly RTI is a good route to make political parties transparent. As a matter of general principle, political parties must be treated as bodies essential and fundamental to the electoral politics of that country. No other non-governmental organisation aspires or claims to represent the people. So people should have the right to seek information from such bodies directly. Poland covers political parties under its Freedom of Information (FOI) law squarely as they are recipients of State funds. Nepal is the only other country in the world which covers political parties under its RTI Act but not for reasons of State funding. The addition to the law was made as a result of revolutionary fervour and has not progressed much beyond this effort. Hardly any instance has come to light where RTI applications have been filed with political parties demanding information directly from them.

Where non-governmental institutions (NGOs) are concerned, the access laws of Bangladesh and Nepal specifically require any body that receives or utilises foreign funds to be as transparent as public authorities and other private entities that receive government support.

Further important revisions

Further substantial revisions relate to the Bill’s exclusions to a general right to ask for information. These were inserted into the draft in 2003 based on experiences in Sri Lanka at that time. Even so, civil society and media groups participating in the drafting committee successfully insisted on the right to a public interest disclosure despite objections by government representatives. That said, there is no doubt that RTI standards have substantively advanced since then. Broad revisions to the exclusion clauses in the Bill are certainly called for now. In addition, the public disclosure rule should apply to all the exemptions rather than only a few.

Moreover, Clause 38 of the Bill, as originally drafted, only provided protection in terms of ‘official information which is permitted to be released or disclosed on a request submitted under [the] Act.’ Those protected were also only officers and employees of a public authority. For the purposes of clarification, this clause was a compromise arrived at between government representatives and civil society during the 2003 drafting process as there was considerable resistance to the inclusion of even a limited whistleblower protection. That resistance is no longer evident. Consequently it is recommended that the Bill reflect internationally recognised standards in respect of whistleblower provisions.

These standards require that persons should be protected from prosecution for disclosing not merely “official information” but “any information”, so long as the whistleblower acted in good faith, and in the reasonable belief that the information was substantially true, and that such information disclosed evidence of wrongdoing or a serious threat to the health or safety of any citizen or to the environment.

Other imperative revisions relate to the need to vest the power to sanction for breach of RTI obligations in the RTI Commission as well as granting it civil powers and ensuring swift action when RTI users and activists are attacked. It is meanwhile important that the Bill reflect the principle of voluntary and pro-active disclosure. India’s RTI Act prescribes a variety of methods of disseminating proactively disclosed information such as through Internet websites, notice boards, the print and electronic media or simply making such information available for inspection free of charge at a publicly accessible place in every office. Similar modes of dissemination are recommended and the fee payable for obtaining copies must be subject to Regulations prepared by the concerned Ministry in consultation with the Commission and as approved by Parliament

Good implementation, the key

The actual worth of Sri Lanka’s RTI law lies in its good implementation and vigorous use by the media and citizens after it is enacted. Sri Lanka has been plagued for too long with good laws that lie inactive in the statue book.

As pointed out in the January 2015 (Sage, India) book ‘‘Embattled Media: Democracy, Governance and Reforms in Sri Lanka’ co-edited by one of the authors of this article, it is important that ‘the media itself plays a pro-active role in promoting the right to information’. The culture of secrecy continuing even in this ‘yahapalanaya’ (good governance) age in most state departments and ministries must be unequivocally transformed.

About the authors; Kishali Pinto Jayawardena is a Colombo based civil liberties advocate, the editorial (legal) consultant/columnist for the Sunday Times and as legal consultant for the Institute of Commonwealth Studies (ICwS) Sri Lanka media law initiative based at the University of London, co-edited ‘Embattled Media: Democracy, Governance and Reforms in Sri Lanka’ (Sage, January 2015). Mr. Venkatesh Nayak is the Coordinator of the Access to Information Programme, Commonwealth Human Rights Initiative (CHRI), New Delhi and an advisor to the Steering Committee of the Whistleblowers’ International Network. Ms. Saine Paul and Ms. Seema Choudhary of CHRI and Sri Lankan attorney Prameetha Abeywickreme assisted in the writing of this analysis.