Sri Lanka’s Right to Information Act is a Weapon of the People - Op-Ed Interview with Commissioner, Right to Information Commission of Sri Lanka, Attorney-at-Law Kishali Pinto Jayawardena
Sep 01, 2017
In general terms, the Right to Information is a right of citizens. In Sri Lanka, there is a perception that it is the media which was foremost in fighting to bring about that right into law. That perception is correct to a large degree. However, at the moment, it is the general public who is enjoying the fruits of the enactment of RTI as much as, if not more than, the media. Since the RTI Act was operationalized in February 2017, the appeals that have come before the Commission bear out this fact. The majority of such appeals have been made by ordinary citizens. In that sense, it is heartening to see that our country is heading towards an information culture, albeit slowly.
Although a bill on Right to information was drafted and presented to the Cabinet in 2002/2003, it was approved by the Cabinet but did not make it through to the Parliament. If at that instance the bill had been enacted, then Sri Lanka would have been the first South Asian country to boast of a Right to Information Act. In one way or another, the Act became a reality in 2016 while obtaining one of the highest rankings globally among Right to Information (RTI) Acts in the world. In a nutshell, it is ranked third among RTI laws globally. However, we have to admit that there are certain limitations when comparing the theoretical strength of the Act in a strictly legal sense with the overall culture of right to information.
Nevertheless, such limitations are to be expected during the initial stages. The thirst for information and using the Right to Information to quench that thirst will grow slowly and steadily, step by step. A community that is used to a culture of non-transparency will change but that will be gradual. Apart from the perspective of the culture of secrecy, even from a legal perspective, we had a situation where information was officially denied by the law for decades. The non-disclosure of information was the norm while disclosure was the exemption. In such a backdrop, bringing this Act into the statute books is a triumph of a considerable sort.
It should be noted that a significant amount of time lapsed in England to operationalize the Right to Information. Comparatively, India had a different history. Social movements fostered the demand for transparency at the state level especially in states like Rajastan and Karnataka. The simplest questions posed by common Indian people concerned as to what politicians did with the money allocated for rural development and the public pressure exerted on politicians in this way was significant. The climax of the state approved law was its implementation at the national level by the Indian Parliament in 2005.
Comparatively, such ground level social movements pressing for the realization of the right to information law did not take place in Sri Lanka. It was the mass media that led the effort along with civil society and civic minded lawyers. Regardless of hiccups at the start of the process, it is my belief that, we have achieved much since the Act came into operation on the 3rd of February, 2017. During the six months following the operation of Act, information requests that are made by the general public to Public Authorities and the Right to Information Commission are both diverse and large in number. When assessing the numbers of the requests or the very nature and the quality of requests, it is clear that if the right to information did not have public impact, such a demand could not have been created.
Most requests are not made from the major cities. They are made from Matara, Hambanthota, Jaffna, Anuradhapura and Polonnaruwa. People from rural areas are well aware of this law. They are well informed on the Act and its Regulations. Moreover, they express their views eloquently before the Commission.
Here is an example. An information request was made to the Road Development Authority (RDA) by a citizen in regard to an illegal construction in Hakmana Road in Matara. He mainly wanted to know how this illegal construction had not been demolished and, if any, the steps taken by the RDA against it. What did the RDA do following the citizen’s RTI request? The RDA removed the construction altogether without disclosing the information. Thereafter, the citizen made another wonderful move. He complained before the Right to Information Commission asking why the RDA removed the construction that was left unaffected for more than a year all of a sudden, after he filed the RTI request. He requested for the disclosure of information transferred between the legal officers of the Colombo RDA branch and its provincial officers as to why they took this sudden step. Finally, following the notice of the RTI Commission, the RDA had to answer his questions and provided the correspondence.
This is but one small example. The first appeal that came before our Commission was about the non-disclosure of information by the Panadura Municipal Council on a request made regarding the approval it had given to a contractor to fill a land located in Hirana, Panadura. According to the RTI petition, the filling of this land had caused floods in the surrounding areas. The citizen had asked for the reasons based on which the municipal council officials gave the approval to fill the land in question. Following the notice of the Commission, the Municipal Council of Panadura had to furnish all the relevant information.
Looking at these examples, it is clear that the requests made by the general public in public interest are diverse. In general, citizens have used the RTI Act as an effective tool. Apart from this, it is interesting that public servants themselves have used the Act. In most instances, they use it as a tool to obtain information in regard to disciplinary and other actions taken against them institutionally. On the one hand, citizens use the Act on a personal level. On the other hand, many use it for the common good and public welfare. It is also interesting that Northern based journalists have been in the forefront of using RTI. The Act has created excitement among journalists in the North. In the South, we see requests being filed by parents regarding school admissions to Grade One.
Therefore, in a way, although it was the mass media which played a major part in initiating the struggle for the RTI Act, the general public has come to the forefront as anticipated. Now, it is the duty of the media to spread awareness about the Act to the general public. This would ultimately assist in the encouragement of active civic participation. There are some challenges in this regard which we hope will be ironed out in due course.
Speaking about Public Authorities and the Right to Information Act, the Commission is of the firm opinion that the Right to Information Act is a public servant/ state official-friendly Act. For example, the Act provides legal protection to information officers who disclose information to the public. Let us assume that a senior official of a particular institution attempts to obstruct the disclosure of certain information and take steps against a pro-active information officer. The Act provides the information officer the legal protection from such repercussions. It is good to see some information officers who continue to disclose information to the public using such legal protection provided by the Act.
However, the Right to Information Act does not provide leeway to access all and every type of information. A detailed description is given in Section 5 in regard to the exemptions to the disclosure of information. These are the grounds on which information requests could be refused. However, if the public interest in disclosing the information outweighs the harm done by such disclosure, such information could still be disclosed to the public.
Recently, there was a discussion on the Right to Information and the powers of the parliament. The powers, privileges and practices of Parliament are included among the exemptions on which information may be withheld. But that does not mean that privilege can be blindly cited. And the public interest is uppermost. This is a topic which invites further explanation. Here, the Parliament or Provincial Council can cite privilege in an institutional capacity; that does not mean that each and every action of individuals can attract the safety of privilege. This question on privilege arose once before the Commission with regard to a provincial council. The related information request was made by a journalist. He had asked for information on some appointments made to the provincial council. Although there was no request for personal information, the particular provincial council had refused the request. Both the information officer and the designated officer had cited privileges as reasons for refusal.
Following the refusal, an appeal was made to the Commission and after examining the facts, the Commission found that the related information must be disclosed as it was evident that the disclosure of information that benefits the public interest had been refused under the pretext of privilege. The salaries and wages for such appointments are made using public funds. Hence, the Commission decided that the general public has a right to know such details. There was an attempt to guard the information in regard to the overseas trips of ministers under the grounds of privilege. There also, the Commission decided that in those instances where public money is used, access to information cannot be refused using ‘privilege’ as grounds for refusal. The provincial council should explain how the disclosure of requested information could impact adversely on the operation of the institution.
This is not just limited to provincial councils; the same logic is applicable to the Parliament. Such instances are a common occurrence in India as well. In all such instances, decisions taken by the Right to Information Commission in India proceed on a key underlying principle. That is, the accountability that must be maintained in governance. It must be the same here.
There is another reason for the Right to Information Act of Sri Lanka to be ranked high globally. That is the fact that the applicability of the Act is not limited to Public Authorities but also to institutions that handle public money and funds of the Government. If an institute handles public money, then it does not matter whether such institution is a government or a non-governmental organization. It is applicable to all such parties. If a non-governmental organization is using Governmental money then it will come within the scope of the Act. Governmental money in this context is not limited to this Government. It could well be a foreign Government.
As an example, let us assume that the Government of Finland awards money to a non-governmental organization in Sri Lanka. Citizens have a right to request information related to the operation of work with those funds. With regards to this particular right, Sri Lanka’s RTI Act is ahead of its counterpart in India since the Indian Act is applicable only to those organisations utilizing state funds of the Indian Government.
Many had doubts as to whether state officials’ will extend support to RTI and to the Act. However, with the passage of time following the implementation of the Act, it should be stated all the cases coming before the Commission have yielded positive results up to now. The results incline towards pro-disclosure. When observing the response of some ministerial and provincial secretaries’, the interest they have in supporting the Act is quite evident. However, this does not, in any way, mean that all information officers or designated officers are uniformly supportive.
In any case, the mere fact of appointing an information officer by a Public Authority does not put an end to the process. The public should be made aware of such appointment and there are several other steps that need to be followed, including the creation of a website and keeping its contents up to date. In some institutions, although an information officer has been appointed, this secondary step is still not taken. The Commission is working with these institutions to remedy those defects.
It should be stated that the RTI Commission has specific powers to act against an institution that deliberately infringes the Act. In such an instance, a person found guilty of such violation will have to face severe legal consequences. However, up to now, all the public authorities that have come before the Commission have responded positively. Therefore, the need to take legal measures has not arisen. It is our expectation that it will not arise in the future either.
In final observations, it is my opinion that the RTI Act which is still in its infancy should be given some more time to evolve in order to serve its true purpose. The Commission will act with the one objective of encouraging access to information amicably, for the simple reason that the right to information is much more than a mere legal tool. It is a weapon that can be used to heighten active and powerful civic participation in the governance process. That is the strength of RTI.
(English translation of an op-ed interview by journalist Bigun Menaka Gamage in the Lankadeepa, 30th August 2017)
