Right to Information: Interview with Kishali Pinto-Jayawardena

 Kishali Pinto-Jayawardena

by Shivanthi Ranasinghe-September 30, 2017, 7:26 pm

Though the Right to Information spells power, the RTI Act has been viewed with much cynicism and suspicion. Thus it was struggling since 2003 and even before to make its entrance notes Kishali Pinto-Jayawardena. She, speaking to Sunday Island of the trials and triumphs of bringing RTI Act into Sri Lanka, is a senior lawyer and helped draft both the 2004 Freedom of Information Bill and the 2016 RTI Act. After years of struggling to let the RTI see the light of the day, she is currently serving on Sri Lanka’s RTI Commission as the nominee of the Editors Guild of Sri Lanka, the Newspaper Publishers Society and the Sri Lanka Press Institute, with its affiliates.

The Right to Information

Act in Sri Lanka

"Though RTI may seem strange to Sri Lanka, it is not so in the global culture or even in the region," notes Kishali. "India has been having its own RTI laws since 2005, Sri Lanka’s first draft of RTI was done in 2003. Had Sri Lanka enacted that set of draft Bills sent to the cabinet, Sri Lanka would have been the first country in the region to enact the RTI law. But since then Bangladesh, Nepal, Pakistan - certain areas of Pakistan - had surpassed Sri Lanka and had already enacted their RTI laws."

RTI, she explains, is linked very broadly with accountability of public funds. That’s the guiding criteria. It is not limited to government entities, but also includes corporate entities linked to government entities.

"If it’s a public body," expands Kishali, "or has a percentage of shares owned by the public, then it becomes a matter or an area that the RTI powers. The reason for it is simple. Public funds are been used and therefore there’s a right for the public to know how it’s been utilized. That’s the basis on which the RTI derives."

The RTI encompasses not only the public funds of our government, but could also include even of another government, or the people in another country.

"For example, if there’s an NGO here, funded by the government of Norway for instance, then there’s a right to, within certain exceptions put down in the RTI act, ask information with regard to how the funds are being utilized."

Private entities can come under the RTI purview only to the extent of its activities governed by the public money.

The distinction for example," states Kishali, "if a private factory provides shoes on contract with the Sri Lanka Army, the RTI only applies with respect to the contract with the SLA. It does not extend with respect to their private activities. This is the distinction and the dividing line what’s permissible and what’s not under the RTI."

The Struggle for a Comprehensive

RTI Act in Sri Lanka

The Sri Lankan Act on the RTI is ranked globally as the world’s third best laws for number of reasons. One is the very wide categories of bodies it covers. None of the government sectors are exempted like in the Indian law. The Indian law exempts 18 agencies, including the intelligence agencies and security agencies from the RTI. Sri Lanka does not have such broad, agency based exceptions. We have grounds for exemptions but we don’t have exemptions for particular agencies. That’s why the RTI Act was globally attractive - theoretically at least - and so high in the world ranking."

"These are not victories that were won easily, but through years of advocacy, years of pressing on these issues, years of forming public opinion around these issues. Even during the drafting process in both 2003 and in 2015-16, there was much resistance to the idea. When I was a member of the RTI committees in both 2004 and 2015, at every point of the system the basic issue was why national security should be covered by the RTI Act.

"The question was whether national security is something so important that it should not be drafted here. In India it is accepted as such and in Indian national security is not covered by their RTI Act.

"We consistently said, then and now, national security can be a ground for a refusal for information, but it cannot be just merely cited as a ground. It can’t have special sanctity by itself. Therefore, it is covered by RTI, but if there’s a particular, specific overall national security concern, then it is up to the commissioner and the courts to look at the matter and balance the facts before deciding as to what side the information should fall. It is a balancing act and it is not up to the government, but to the commissioner to determine."

The problem lies that aspects such as national security are not defined under an Act, and is existing as an illusive network.

"That is why you can’t have a blanket denial of everything as national security," explains Kishali. "It must depend on the circumstances of each case. That’s a very common position taken by even courts of law. The court has been very consistent that if citing national security for a particular action, then the reasons must be given. The court will examine those reasons and give a decision as to whether those reasons are correct or the constitutional right of the protection of arbitrary arrest or repression prevails.

"It will not breach security for this is a very sober, judicial balancing of the facts which is not done in a political sense. You see the circumstances of the particular case where the line falls - should it fall to give information or should it fall to hold information.

"Frankly, there are no instances where the RTI in the world had been used to breach national security. That’s because the RTI conditions have been carefully formulated and not ad hoc or in a way that opens the floodgates as it were. It is done very judiciously."

The Exceptions

According to Kishali, there are about 14 or so exemptions, which are in the law elsewhere in the world as well. There has to be certain gates. Overseas trade agreements also happen to fall as one such exemption.

"The basic rule for trade agreements is that if they are pending they can’t be disclosed until they are concluded. Now it is there in the Indian Act as well and it’s a matter to preserve the confidentiality of the negotiations and the discussions that are taking place. I know there’s a lot of dissatisfaction and a lot of anxiety around this clause. But this is not a provision unique to Sri Lanka, but is there in almost every RTI Act in the world.

"The other exemption that can be classified is pending cabinet papers. Despite your desire to know what’s happening in our cabinet, there should be certain reservations and cautions that should apply."

However, she assures, there is a balancing factor that takes place even in exemptions. All these exemptions, even overseas agreements, are subject to the public interest override. It is not just a case of giving or not giving information. If the relevant sub-sections disallow the information to be given by the information officers, the request comes before the RTI Commission. The Commission will take into consideration all factors before giving its decision.

The Response to the RTI Act

Since the Act was operationalized in February 2017, the response had been extremely positive. There have been more than 400 appeals before the Commission. However as the Commission had been very busy disposing of the appeals made since its function, it has not had been able to sufficiently publicized itself. Hence, many are still unaware as to how this Act works.

Recalling an incident in early February 2017 in Batticaloa where a group of women, who were mothers who had lost their children during the war had confronted public officers in police stations, village officers (grama niladaris) and prison centers with copies of the RTI Act, demanding information. The relevant officers were not aware of the provisions of this Act and they were further disadvantaged because the copies in hand were in Tamil. Thus, they had to ask the women concerned to explain the Act to them. The women knew of this because there was a personal interest as well as because of the efforts of journalists and other activists who kept them informed.

In terms of existence, the RTI is still in its infancy and does not have its own budget until next year.

"So far, we’ve been operating under huge human resources and financial constraints. The office has only three staff members. Still, there has been a considerable enthusiasm on the part of the public officers as well as members of the public in reading the RTI Act, understanding the regulations and coming before the RTI Commission. It is quite amazing because we see people coming from the extreme North as well from the extreme South with their appeals to the Commission."

Recalling one typical example, Kishali recalls a man from Matara who had to pass a construction site that was impeding the pedestrians’ movement. He wrote in 2016 to the Road Development Authority asking for an explanation as to why this obstruction was allowed, which the RDA completely ignored. In late 2017 February he lodged a RTI request to the RDA requesting to know the status of his letter to which the RDA responded by removing the obstruction within a week. He then filed an information request wanting to know how they delayed taking action for one year, the communications between the legal officer of the RDA in Colombo and the provincial engineer of the Matara RDA office, what transpired in relation to this matter, and on what basis the obstruction was removed. Generally, for the removal of a construction of this nature a court order is needed. Thus he requested copies of the correspondence between the Colombo office and the Matara field agency.

"The RTI law in my mind is not meant for those who are anyway empowered, who can access either socially or financially or politically the sectors of power, who can always get information through other ways. Generally for journalists in Colombo you get a question, you have your sources, you call somebody. For a provincial journalist it is not that easy because you don’t get the access to power that is clearly laid out as it is when you are living in Colombo. Similarly if you are a lawyer working in Colombo you have access to the Supreme Court, you can lodge cases in the court of appeal. But if you are professional in some other area of the country you don’t have that access so easily.

"What we are seeing as quite positive is that many of the applications coming before the Commission are really coming from people who are living in fairly distant areas of the country. And they are reading the RTI Act. It is extremely satisfying when you see them responding in this manner."

Thus, Kishali sees the RTI Act as something as a leveling of society, creating an equal playing field across the length and breadth of the society.

Skirting the RTI Obligation

One problem that shrouded the RTI Act was that if the government chose not to give the information sought, the seeker might be bounced from department to department.

"The Sri Lankan Act is far better in theory than the U.S. Act. The U.S. Act was drafted and implemented in very different circumstances and is also very old. It does not include any modern principles of the RTI in any sense whatsoever. The Sri Lankan Act does take notice of all these principles. So if it is proved that an Information Officer has been deliberately evasive to deny the information sought by an applicant, the penalties and repercussions are quite severe.

The RTI is on Thin Ice

The RTI laws as explained by Kishali will pave the way for better accountability, which in turn will lead to better governance. It is a pity though that the same push for RTI Act has not come for other pressing areas as national security. Had the National Security Act been in place, the RTI Act would not have been such a battle on its hands in the first place. Failing to address concerns on matters such as national security leaves the RTI Act on thin ice. Allowing individuals, whose expertise might not be in the relevant areas as national security to understand constraints and challenges, to determine if requested information falls on the side of public awareness or public safety might shorten the life of the hard won RTI Act.

It is important to understand that the RTI Act saw the light of the day because of the political will of the present government which honored a campaign pledge. Having loose threads on matters such as national security without the protection or definitions under a National Security Act could be a danger. This might give an excuse to a future administration to clamp down on RTI not for the purpose of safeguarding national security but for becoming less accountable to the public.