The Proposed 19A – A Critique

By Nihal Jayawickrama -March 29, 2015 

Dr. Nihal Jayawickrama

The Bill for the Nineteenth Amendment to the Constitution has been drafted, published in the Gazette and placed on the Order Paper of Parliament without any opportunity for public consultation. Once more, a government has arrogated to itself the sole power to draft a constitution, ignoring the fact that the constitution belongs to the whole country and all its inhabitants. It is a social contract between the citizens and the state, whereby the people agree to submit themselves to the power of the state, and agree to the manner in which that power will be distributed, exercised and limited among the institutions of government. A constitution should not be the product of political bargaining between competing political parties; nor should it result from the application of the party whip.

The proposed Nineteenth Amendment to the Constitution appears to have been drafted with care to reflect some of the commitments made in the common programme of the common candidate for the presidency which received the overwhelming support of all ethnic and religious groups of this country. However, a reading of the Bill reveals several provisions which, if enacted, could impede the governance of this country, and interfere with the lives of ordinary Sri Lankans as well.

Access to Information

The proposed new Article 14A seeks to introduce a new fundamental right, namely, the right of access to information, notwithstanding the fact that the right to seek, receive and impart information is an element of the “freedom of speech and expression including publication” which is already guaranteed in Article 14(1)(a) of the Constitution. What is now required is a substantive law that gives practical effect to that fundamental right. Instead, what is being offered is a constitutional provision that reflects a serious misunderstanding of the concept of access to information. Article 14A seeks to grant every citizen the fundamental right of access to any information held by “any other person”, “being information that is required for the exercise or protection of that citizen’s rights”. As far as I am aware, there is no legislation in any country in the world that gives a citizen the right of access to information in the possession of another “person”.

The draftsman has apparently borrowed this provision from the 1996 Constitution of South Africa which was drafted in the context of the “secretive and unresponsive culture” that had prevailed under the apartheid regime. The draftsman appears to have ignored the fact that when substantive legislation was enacted in that country, that error was rectified and the term “private bodies” was substituted for “persons”. In the absence of any such implementing legislation in Sri Lanka, will my neighbour now acquire a constitutional right to intrude into the privacy of my home in search of information (perhaps my research material !) that may be useful to him for the purpose of vindicating his rights in a court of law?Read More