By Himal Kotelawala
What with so many laws that seem to exist solely for the purpose of keeping the public in the dark, breaking away from the culture of secrecy that has become entrenched in Sri Lankan polity for the better part of a century is, one would imagine, not exactly going to be a walk in the park. And one would be right.
Oppressive provisions in laws as archaic as the Official Secrets Act of 1955, the Sri Lanka Press Council of 1978 and the Establishments Code of 1971 have, for decades, made it nigh impossible to build a society of trust and openness in this country.
While others in the region have made massive strides in this regard, Sri Lanka has largely lagged behind, with true freedom of information remaining a topic of conversation among activist circles in Colombo. This is despite sporadic attempts to draft and table a Right to Information (RTI) Bill, starting in the mid 1990s which predictably ended in a stalemate every time it was brought up at the highest levels of government, for a plethora of reasons.
A recent attempt to table a new Act, however, has made RTI relevant again, and it looks as though this time around, things are finally starting to fall into place. And though the Bill is currently in a state of limbo, advocates of RTI are hopeful, optimistic even, that it will be passed in parliament sooner rather than later; and what was once a pipedream, they believe, is about to become a reality.
Research Director and Head of Law at Verité Research and RTI expert Gehan Gunatilleke, who has extensively studied a previous draft, told the Daily FT that, in its current consultative state, the Bill appears to be “quite sound”, barring, among other things, a need to strengthen whistleblower protection. However, he said, it was crucial to keep the public discourse going, as lacklustre as it is, so as to ensure that the political will to see it implemented remains intact.
According to Verité Research, the RTI Bill proposes to give individuals and organisations the right to request information held by public authorities. In this context, information includes a wide range of items, from emails to drawings that are in the possession of the relevant public authority.
Information is requested from an Information Officer that is stationed at every public authority and refusals are only permitted on certain identified grounds – grounds that can be overridden in the event that there is an overwhelming public interest in the disclosure. In the event a request for information is denied, the individual or organisation has the right to appeal to a newly-appointed Information Commission consisting of eminent persons including members of the media community, et al, failing which they may appeal to the Court of Appeal.
What’s the catch?
There will, of course, be exceptions (apart from obvious cases like information relating to matters of national security, that is). According to Gunatilleke, one exception that proved particularly problematic in a previous version of the draft was a provision that had deemed that a request for information could be denied if it ‘harmed the commercial interest of any person’.
A dangerously vague and broad provision that, had the Bill been passed, would’ve cast a net so wide that it could potentially cover tender deals of a shady nature.
“The whole thing was too broad. I learnt that the Chamber of Commerce was willing to go on record and wrote letters to the Prime Minister and the Media Ministry saying that they opposed this particular exception,” said Gunatilleke.
Opposition which has, apparently, paid off, seeing as it is reported that a fresh revision of the draft now narrows the scope of the exception to ‘commercial confidence, trade secrets or intellectual property’ and includes the line ‘unless the public authority is satisfied that larger public interest warrants disclosure of such information.’
A close shave, indeed.
“As a citizen, I wouldn’t be able to get information on a tender process, because the Information Officer could say ‘this relates to the commercial interests of the person’ – who might in fact turn out to be corrupt,” said Gunatilleke.
A major risk and a clause that could’ve gone against the very idea of RTI he said, adding that he was quite pleased to hear that it was amended.
“This is a very good development, and precisely the formulation we advocated for,” he said.
Even when it comes to national security, said Gunatilleke, while it is understandable to have certain exceptions in place, a blanket rule stating that RTI is a threat to national security could set a bad precedence.
“The idea that you can withhold information from the people under one blanket exception can be very problematic. There needs to be structures for people to review individual instances where exceptions are used. I should still have the opportunity to take the next step and go to the commission, which can review the application. If that’s rejected, then go to a court of law,” he said.
Limited room for exceptions
Under RTI legislation, incorporating grounds for information denial should pass a two-part test:
1. Denying the request should be justifiable on the basis of legitimate aim (e.g. national security and defence) and
2. Permitting the request would cause substantial harm within the scope of the identified aim (e.g. expose the state to an imminent attack)
Even if a denial passes both parts of this test, Gunatilleke pointed out that the principle of ‘limited exceptions’ warrants that the request should be granted if there is an overriding public interest in disclosure.
“All exceptions have a further exception that says if it’s in the public interest, you can still disclose it. That option should be available. Of course, it depends on the officer’s interpretation. If he thinks it’s not in the public interest, he can reject it, as long as the decision is subject to review,” he explained.
The exceptions detailed in the draft Bill, he added, are not too problematic.
“People have pointed out that parliamentary privilege should not be an exception. Since there is a public interest element to it, you can always raise that point. Say, for example, if a certain piece of information is relevant to the public interest, you can take it to the next tier of appeal. If the Information Officer rejects it you can go to the Information Commission,” he said.
Speaking of Parliament
Asset declaration of Members of Parliament, something all MPs are required to do by law, raises an interesting and rather perplexing question when considered in the context of an RTI Act. Provisions are already in place, through an existing and separate act, for any member of the public to request from the Speaker a copy of any MP’s declaration of assets. Gunatilleke said his organisation actually succeeded in acquiring asset information from the Speaker.
“As a citizen you can apply to the Speaker and get a copy of that declaration for a fee of Rs. 750. You can do it already. My colleagues have tried it. It works fine,” he said.
Of course, as always, there is a catch.
“Once you get access to the declaration, you’re not permitted to publish it or give it to anyone else. It’s bound by a secrecy clause. I can look at it as a citizen, but I cannot pass it on to the next person. If the next person wants to have a look, he or she has to apply too,” he explained.
"The RTI Bill proposes to give individuals and organisations the right to request information held by public authorities. Information is requested from an Information Officer that is stationed at every public authority and refusals are only permitted on certain identified grounds. In the event a request for information is denied, the individual or organisation has the right to appeal to a newly-appointed Information Commission consisting of eminent persons including members of the media community, et al, failing which they may appeal to the Court of Appeal
Asset declaration of members of Parliament, something all MPs are required to do by law, raises an interesting and rather perplexing question when considered in the context of an RTI Act. Provisions are already in place, through an existing and separate act, for any member of the public to request from the Speaker a copy of any MP’s declaration of assets
If there is a provision in the RTI Act which is in conflict with any previous law, the RTI Act will prevail over the previous law
Celebrate not when it’s passed, but when people are using it at the grassroots level. When people are writing applications for information in their own language – Research Director and Head of Law at Verité Research, Gehan Gunatilleke"
An awkward position to be in, no doubt. What good is information that you cannot share? Moreover, what does one do in the event he or she finds, via the Asset Declaration Act, a piece of incriminating information that could potentially land a public official in hot water?
“If there is bribery evident in the Asset Declaration, you can send that information to the Bribery Commission, but not give it to the media. The relevant authorities can be informed if there is reason for suspicion. But you can’t talk about it, tell people anything or indicate that there was anything suspicious. You can’t even talk about the fact that you obtained that specific declaration. It’s a very tricky clause,” said Gunatilleke.
RTI to the rescue
Thankfully, however, the RTI Act can help fight exactly that. It specialises in handling such tricky clauses. The Act is equipped with a clever little provision – a sort of Get Out Of Jail Free card – that espouses the RTI fundamental ‘disclosure takes precedence.’
Gunatilleke explained to the Daily FT that, according to this clause, in the event that a provision in the Act is contradicted by an existing, previously-passed law, that provision will prevail over the previous law.
To reiterate, if there is a provision in the RTI Act which is in conflict with any previous law, the RTI Act will supersede the previous law.
“It’s going to be an interesting interpretational debate once passed,” he said.
RTI is already ‘sort of’ there in Article 14A of the Constitution, brought in through the 19th Amendment, added to the list of fundamental rights.
“Even today, I can go and file a fundamental rights application saying that my RTI has been violated. The problem is that you have to have a ‘right’ to that information already provided by law. Because we don’t have the Act in place yet, there is only a limited basis on which you can go to the Supreme Court,” said Gunatilleke.
Once again, however, there is a catch.
“There has to be some law that already gives me the right to that info – such as the RTI Act. Without the Act you can’t really make use of the 19th Amendment’s addition to the Fundamental Rights chapter. This is why the RTI is so important.”
Getting back to the example of parliamentary asset information, does one already have a right under the Asset Declaration Act?
Gunatilleke explained that, if the speaker refuses it, a citizen can, even now, go to the Supreme Court citing a violation of his or her right, as already guaranteed by the Asset Declaration Act (separate from the RTI Act).
“It’s very convoluted; which is why you need an RTI law. You can’t depend on these other laws which have very stringent secrecy clauses,” he said.
If the Bill is passed, depending on how the request is interpreted, any restrictions on sharing the information obtained via the Asset Declaration Act would arguably become null and void.
To further illustrate this, the Establishments Code of Sri Lanka (1971) which governs the activity of public officials and includes provisions related to promotions, discipline and financial disclosure contains the following:
‘No information even when confined to a statement of fact should be given where its publication may embarrass the government as a whole or any government department, or officer. In cases of doubt, the Minister concerned should be consulted.’
Gunatilleke called it a very serious provision that is bound to have a chilling effect on anyone in terms of speaking up on anything of public value.
“The Establishments Code is hugely debilitating in terms of information sharing across the public service sector in Sri Lanka,” he said.
However, the RTI Act, if passed, can once again save the day.
How to make sure all this actually happens
Gunatilleke believes that the demand for RTI could do with an energy boost at the grassroots level and that more needs to be done to make sure it remains a vibrant topic in the public discourse, so as to ensure the powers that be don’t lose interest in implementing it and delay it in the process; something that may very well happen, despite optimism in activist circles to the contrary.
“The biggest criticism of the campaign is all of us have lobbied at the high level – Parliamentarians, politicians and bureaucrats. There doesn’t seem to be a corresponding public demand for RTI,” he complained.
Inspiration can be drawn, he said, from India’s famously successful story of RTI.
“In India, where a more comprehensive campaign was run, the demand didn’t arise at the national level – not even at the provincial level. It came from the local level,” he said.
It’s quite the story.
In the 1990s, a group of villagers in the state of Rajasthan learned that the cost of a certain local government project was much higher than it had any right to be. So they did some digging and, sure enough, discovered that people no longer living had been paid public funds for this project, exposing major corruption.
These villagers, recounted Gunatilleke, demanded the State of Rajasthan pass an RTI law; and they got it. The story got picked up, and the public demand for RTI resulted in a massive grassroots campaign, which culminated in a national RTI Act in 2005.
“Mind you, this was at the village level. These were not sophisticated urban dwellers,” said Gunatilleke.
The same model, he added, could be adopted here in Sri Lanka.
“We can do it provincially here too. The Western Province can do it. There’s nothing stopping them from doing it. [Any campaign for RTI] has to start at the grassroots level. It’s the only way to sustain it. What happens now is that you have some national actors and a bit of political will. If that fades out, we’re back to square one,” he said.
At present, there is inadequate public demand for RTI at the grassroots level, and that is a problem, he added.
What, then, is the solution?
According to Gunatilleke, a fundamental shift in approach to the campaign is required.
“Campaigners have to switch gears completely. There’s no point in having RTI conferences and seminars at the high level. We’ve done that. We all agree – businesses, journalists, lawyers, all agree that RTI is good. Go down to the grassroots level, and say that this is about everyday issues of the people. Don’t just frame it as a human rights issue or a freedom of expression issue. This is a day-to-day right,” he said.
RTI is really about obtaining information that’s relevant to your everyday needs and interests, such as who’s responsible for cleaning a drain, or determining school admission or fixing the street lamps.
“That’s what it was linked to in India – day-to-day things. That’s why it worked. Unless you’re able to penetrate the public’s imagination, you have to always depend on someone’s political will to get it done,” said Gunatilleke.
Civil society needs to do more in this regard, he added.
“Transparency International did a lot of grassroots level work out of Colombo to promote RTI. ICES did some engagement as well. Things have been done but it has not been sustained as one campaign. The public will respond. Once they realise how it impacts their day-to-day lives, people will appreciate it,” he said.
Campaigning for RTI, as with anything else, is a full time job.
“To be a bit self-critical, we’re all part timers here. There are no fulltime RTI activists in the country—the way you’ll have fulltime activists focused on media rights, women’s rights, constitutional reforms, and transitional justice,” said Gunatilleke.
“The 19th Amendment was passed not because a bunch of politicians, lawyers or activists decided it was a good thing. It was passed because it was an election promise. They were given a mandate for it. That was the main objective of the 100 day plan—the symbolic, main highlight of that plan. RTI never had that public appeal. However, it’s not difficult to create that appeal. Just look at India,” he said.
While it makes a lot of sense to look to India for inspiration, Sri Lanka can also look at examples from other countries like Mexico, Bulgaria and South Africa that have successfully experimented with RTI. Closer to home, Pakistan and Nepal.
“We’re behind even in South Asia. It’s almost embarrassing to think we don’t have this in place yet,” said Gunatilleke.
Gunatilleke is cautiously optimistic that RTI in Sri Lanka will eventually be a reality under the present administration.
“I don’t think it will not be passed. It will be hugely embarrassing for the Government if it fails,” he said.
There is, however, a danger of it getting postponed; which is why Gunatilleke stressed the importance of shifting the campaign’s focus on how RTI affects people’s socio-economic needs rather than just their political needs.
“The TNA is pro RTI, the JVP has never objected to it. The only people who are going to oppose it will be those who have things to hide. It’s going to be very interesting,” he added.
And when it eventually does happen, he warned, those who campaigned for it shouldn’t be too quick to celebrate.
“Celebrate not when it’s passed, but when people are using it at the grassroots level. When people are writing applications for information in their own language,” he said.