SC dismisses FR petition on right to information

• Legal experts say petition was ‘poorly conceived in law’; filed before RTI Act enacted 
• Dr. Nalin De Silva petitions court for release of DEW’s COPE interim report on bond scam 
• Judges rule that info being sought subject to parliamentary privilege

By Dharisha Bastians 

The Supreme Court dismissed what was possibly the first case invoking its jurisdiction on the right to information last week ruling that the information being sought was subject to parliamentary privilege, while legal experts pointed out that the application may have been premature being filed in 2015 before RTI legislation was enacted. 

In its dismissal, a three-judge bench of the Supreme Court said the petitioner had failed to prove that his rights had been violated by the non-disclosure of the information. 

Dr. Nalin De Silva filed a fundamental rights petition claiming his rights under Article 14(A) – which constitutionally guarantees a citizen’s right to information – had been infringed by the non-release of an interim report compiled by the Committee on Public Enterprises (COPE) on the Central Bank Treasury bond controversy, when the committee was being chaired by former Minister D.E.W. Gunesekera. 

Dr. De Silva was seeking interim relief by way of a court order directing the former COPE Chairman to release the report. 

However, the three judge bench of the Supreme Court upheld preliminary objections filed by the Attorney General’s Department and lawyers for the Prime Minister, ruling that the petitioner had failed to satisfy court that any breach of fundamental rights of the petitioner had resulted due to executive or administrative action. 

“When one considers the information to which the petitioner is seeking access, the COPE report is not held by any of the entities referred to in the Article and it has to be concluded that any information held by the Parliament falls outside the pale of Article 14A of the Constitution,” the Supreme Court said in its dismissal, referring to the exception in Article 14 (A) (2) stipulated in the fundamental rights section guaranteeing the right to information. 

Article 14 (A) (2) states that no restrictions shall be placed on the right to information except those prescribed by law – including among other things, the protection of parliamentary privilege. 

“In the present application the Petition seeks to secure information from the Parliament, more specifically Parliamentary Committee on Public Enterprises (COPE). Article 14A has left out the Parliament from the list of specified institutions,” the justices noted. 

Citing the Parliament (Powers and Privileges) Act, the three justices noted that any disclosure or publication of the interim report of the COPE, which is an oversight committee of Parliament, would be violative of provisions of the Act, as the Committee had not placed the report before the Parliament.

Deputy Solicitor General Milinda Gunatillake contended that the acts of COPE did not fall within the purview of executive or administrative acts as it is a body that is part of Parliament. Similar objections were raised by lawyers for the Prime Minister, who was cited as the first respondent in the case. 

Raising preliminary objections in the case, lawyers for the Prime Minister led by K. Kanag-iswaran PC argued that the petitioner had not disclosed a violation of any right guaranteed under article 14 (A) or Article 12 (1) – (equality before the law) – of the constitution. Lawyers for the Prime Minister also raised objection on the basis that relief sought by the petitioner could not be granted in view of the provisions of the Parliament (Powers and Privileges) Act. 

In its dismissal the Supreme Court also noted that the Deputy Solicitor General submitted that in the terms of Article 14 (A) guaranteeing the right to information, there had to be an “enabling law” under which the access to information is provided for. 

Enabling legislation was only enacted in June 2016, when Parliament passed the historic RTI Act. 

The petition cited the Prime Minister, ex-COPE chief Gunesekera, former Speaker Chamal Rajapaksa, former Central Bank Governor Arjuna Mahendran and five other respondents. Attorney at Law Rajpal Abeynaike, the former editor of the state-run Daily News, appeared for the petitioner. DSG Gunetillake and Senior State Counsel Dr. Avanti Perera appeared for the Secretary General of Parliament, the Secretary to the President and the Attorney General, who were also cited as respondents in the case. 

Legal experts pointed out that the application to the Supreme Court may have been premature. The petition was filed in July 2015, nearly one year before the Right to Information (RTI) Act was enacted into law by the Sri Lankan Parliament. 

“The Petition was poorly conceived in law,” human rights lawyer Gehan Gunetilleke told Daily FT, commenting on the dismissal of the petition. Gunetilleke explained that Article 14A of the constitution only recognises a right to access information as provided for by law. “For example, the RTI Act provides for citizens to access information in the possession of public authorities,” so a person can petition the Supreme Court complaining his rights under 14A have been violated, if he is denied access to information that he could have accessed through the RTI Act,” the lawyer pointed out. 

Gunetilleke said the petition was filed before the RTI Act was passed. “So the right to access to information was not provided for by law at the time,” he explained.