Giving with one hand and taking with the other?

Sunday, April 19, 2015

Constitution-making exercises in Sri Lanka are generally a coyly deceptive dance of appearing to give much but actually conceding very little. And for too long, we have suffered from a peculiar obsession with keeping rights away from the people. This is not an affliction limited to a particular political era or to individuals of greater or lesser talent as the case may be.

Constitutional compromises on rights
So the first attacks on an independent judiciary and public service under the 1972 Constitution were engineered by those generally acclaimed as the great leftist thinkers of the day. Such are our delusions. This constitutional document undermined the rights of minorities even as it was hailed as an ‘autochthonous’ (native) freeing of colonial fetters.

If this was the measure of our collective post-independent mind, then the constitutional autocracy that came later in 1978 to the detriment of both the majority and the minorities was not surprising. And the pattern of giving with one hand while taking away with the other continued. Sri Lanka’s second Republican constitutional pact did not even enshrine the right to life. It took the Supreme Court well over twenty years to impliedly recognize the same even in the limited sense of asserting that no person can be put to death except through order of a competent court.

Across the Palk Strait meanwhile, the Indian Supreme Court had long since reached triumphant heights in protecting the ordinary Indian, bringing in the right to information as well as liberty within the right to life.

Concerns with the draft RTI clause in 19A
Tragically, we have still not departed from this unhappy precedent. The proposed Right to Information clause in the 19th Amendment to the Constitution is an admirable example thereto. A major promise of the Sirisena election campaign was the enactment of a separate Right to Information (RTI) law. Given that such a draft is soon due to be brought before Parliament, what was required from the constitutional process was a clear and lucid statement of the basic right subject to narrowly framed exceptions.

Instead the 19th Amendment contains an RTI clause which is undercut by several exceptions imported from archaic restrictions on freedom of expression inserted by the drafters of the 1978 Constitution in their infinitely outdated wisdom. This is despite the fact that the interests protected by the two rights are not necessarily similar.
In its final tweaking around before the Supreme Court recently, these proposed constitutional restrictions include not only national security, territorial integrity or public safety and opaquely defined ‘protection of morals’ and ‘protection of the reputation and rights of others’ but also parliamentary privilege and contempt of court.

Constitutional drafting at its most confused
Even in a most basic sense, it beggars the imagination as to why contempt of court has been included when ‘maintaining the authority and impartiality of the judiciary’ is already specified as a permissible restriction to RTI in the same paragraph. This is constitutional drafting at its most confused. Similarly, I am compelled to ask as to what rationale could possibly be advanced for retaining ‘protection of the reputation and rights of others’ when this is (again) already covered by other restrictions?

Other problems abound. For example, ‘protection of morals’ is a perfectly legitimate restriction in regard to freedom of expression but sits somewhat oddly with a separate right to information. Protecting morals can properly restrict expression for instance, to prevent the publication and dissemination of pornographic material.

But restricting RTI on such a ground has little logical relevance as public bodies are not generally expected to be holding pornographic material regarding which an RTI request may be lodged.

Blanket restrictions on RTI
Moreover refusing information citing contempt and parliamentary privilege is not defensible at a conceptual level. Contempt of court lays claim to a torrid history in this country where the power has been wielded to protect judges who violate the Rule of Law.

For over a decade, draft contempt laws had been put forward by the Bar Association, the Editors Guild and by the National Human Rights Commission (formulated by an experts committee under the chairmanship of a former Chief Justice of Sri Lanka). These were no abstract discussions but emerged out of the excessive use of contempt powers by the Sarath Silva Court (1999-2009). Indeed, Sri Lanka has been requested by the United Nations to democratize the use of contempt power. This is, as yet, an unfinished task. The blithe insistence to constitutionally restrict RTI on this ground is therefore quite deplorable.

Neither is ‘parliamentary privilege’ an acceptable restriction. Parliamentarians should not be afforded special sanctity against the public right to know. And the draft 19th Amendment’s stipulation that these restrictions must be ‘prescribed by law as necessary in a democratic society’ is not an adequate safeguard.

Enabling two separate RTI regimes to develop?
Differing from all this meanwhile, exceptions to RTI in Sri Lanka’s proposed separate law are not vague or antiquated as the 19th Amendment’s clauses, as they currently stand. But as the Constitution is superior to all statutes, the constitutional restrictions will take precedence with possible negative impact thereto.

Public authorities providing information under the RTI law may be blocked by interested parties citing the broad constitutional exceptions. This may hinder information requests under the RTI law and render the law itself virtually inconsequential.

Worryingly therefore, there is potential for two separate legal regimes on information denials to develop. The first regime may be confined to narrow exceptions within the public interest disclosure which the RTI law strictly demands. The other regime may develop under the broad constitutional exceptions. Certainly this is not conducive to clarity in the law.

Better sense should prevail
Consequently if the 19th Amendment is to have any visible impact where RTI is concerned, a judicious tightening of the restrictions detailed in Clause 14A (2) is essential.
These concerns may have been discussed if this draft amendment had been disclosed in time for adequate scrutiny. Even at this late stage however, it may not be a forlorn hope that better sense will prevail.