Rights assured and rights distorted

by Rukshana Rizwie-Sunday, 22 November 2015

Nalaka Gunawardene Pic: Courtesy lightmillenium.org

The actual worth of Sri Lanka's RTI (Right to Information) law will be in its implementation, mechanism and how the media and citizens would use it after it is enacted. Sri Lanka had for too long good laws that lie inactive in the statute book.

Sri Lanka will probably be the last country in the Asian bloc to enact the Right to Information Act and the first to have an Act so distorted that it virtually leaves room for the government to withhold information at its discretion. Even if it's unclassified.

Dr Jayampathy Wickramaratne MP who chaired the working committee which prepared the draft bill confirmed to the Sunday Observer that the finalized draft would be presented to Cabinet on Wednesday, November 25 for approval.

The draft Bill which he oversaw is 'satisfactory', he says. He headed a committee comprising 15 members including the Secretaries to the Ministry of Justice, Ministry Mass Media and also the Ministry of Public Administration.

Former Director of the UNESCO International Program of Development Communication, Wijayananda Jayaweera said, "Our team was tasked with reviewing the old Act to make sense of it and engineer a bill which would be void of the loopholes, while most of us are satisfied with the draft, I am not sure if this would be presented to the Cabinet and finally approved."

Detrimental

Dr Jayampathy Wickramaratne MP Pic: ANCL media library

Jayaweera who was also a member of the same panel was critical of the sanctity of this Act citing it as oddly different from any other. "There have been several requests from the Attorney General's Department to include a special clause that would exempt the department and its officials from needing to provide information to the public," he said. "That singular clause is detrimental to the whole Act."

He added that no other Right to Information Act in any country includes a clause as this or makes exemptions of this nature.

"The Indian Right to Information Act has exempted 22 institutions, but all of them are related to or involved in National Security matters."

Jayaweera added that there is a high probability this clause would be included in this Act. However until the Act is made public, no one would know. "The 19th Amendment to the Constitution recognizes the Right to Information as a fundamental right.

Essentially it means that any citizen has the right to access information from anywhere as long as that information is needed to safeguard a fundamental right. However this aspect has not been sufficiently covered in the Act." He also made out a case for more punitive powers to the Right to Information Commission, citing that they should have more administrative powers to levy fines until they draw information.

"The counter point to this from the AG's Department was that disciplinary matters concerning members of the government or its institutions are governed by the Public Service Commission and that an overlap would be arbitrary.

Exemptions

He also argued for a broader definition of the exemptions in the Act whilst calling for a proactive disclosure of information.

Kishali Pinto-Jayawardena who has been vocal about the Right to Information Act also voiced concern pertaining to some of the RTI's core subjects.

"The strength of a government's commitment lies in the enactment of the Right to Information Act, not constitutional reforms," she said, "because it's the RTI law which citizens will need to use the most."

Kishali Pinto-Jayawardena Pic: Courtesy zubaanbooks.com

She, however, cautioned that no department of the government, the police or even the AG can be granted special exemptions.

"They cannot be immune to review or be given blanket exemption, because if so then the Act is laughable."

"In that balance between the Right to Information and the State's interest, one cannot privilege the State as a matter of general principal," she said.

"Except in terms of national security but the determination of that balance rests entirely with the Right to Information commission and the courts."

She added that in the event information is held back for justifiable reasons, it may need to be disclosed for public interest.

Columnist and new media researcher Nalaka Gunawardene who recently took part in a discussion on the RTI initiated by Transparency International, said, "Some have been critical of the current draft of the RTI Bill as it falls short of the ideal. But in my view, adopting even an imperfect RTI law would be progressive."

Technocratic Solution

"Proper implementation will require adequate political will, administrative support and sufficient public funds. We would also need sustained monitoring by civil society groups and media to guard against the whole process becoming mired in too much red tape," he said. He added that the RTI signifies a change in status quo.

"First, we need to shake off a long historical legacy of governments not being open or accountable to citizens.

For over 2,000 years of monarchy, over 400 years of colonial rule and 67 years of self-rule since independence, all our governments have restricted public information - even mundane ones unrelated to any security or sensitive issues," he said.

"Thus, the 'default setting' in most government agencies seems to be to deny and restrict information. When this finally changes, both public servants and citizens will need to adjust."

"RTI is not simply a legal or technocratic solution. It is not a quick fix to all problems that affect our society.

But it heralds a new way of thinking - a paradigm shift, if you like - that would make our government more open, and our society more focused on using information and data to make our lives better," he added.