Can Sri Lanka’s RTI law make a difference?

*I saved Mahinda from the electric chair-MS

*Video: Ex-CJ says if not for his order Mahinda won’t be President today 

*News1st Former CJ Sarath Silva tenders apology for a particular decision taken during his tenure

Sunday, March 27, 2016

For those inclined to greet this week’s tabling of Sri Lanka’s Right to Information (RTI) Bill in Parliament with exuberant joy, a note of caution must be struck. As a first premise, this law is certainly essential in order to achieve the minimum necessary in responsible governance. Its appearance in the House is despite the unenviable political quagmire that the Sirisena-Wickremesinghe leadership appears to be getting itself into. That must be welcomed.
However, our belief that laws alone will solve this country’s manifold problems of justice is touchingly naïve.

Resistance of the political establishment

Indeed, that assumption is belied by our history which is replete with reasonably good laws in the statute books that have little practical impact. Similar exuberance was evidenced in 1994 with the enacting of South Asia’s best law in torture prevention, namely the Convention Against Torture (CAT Act). At some levels of statutory deterrence, this law went beyond even the treaty norms established by the United Nations. It may have set a wonderful example for the rest of the region to follow.

But the converse occurred. The CAT Act became a bitter mockery of itself. Lacking requisite political will, its implementation was farcical. Indeed, the entire effort of various Presidencies and various governments during the past decades was to systematically defeat its reach and cripple its functioning. We saw this resistance similarly with the powerful National Police Commission (NPC) established under the 17th Amendment to the Constitution. The NPC had actual authority to bring the police to heel unlike the multifarious other commissions including the Human Rights Commission. It was also far more empowered than its pale shadow currently functional under the 19th Amendment.

At that time, the government and the opposition shamefully united to undermine the NPC under the ably authoritative leadership of the late Ranjith Abeysuriya PC. Politicians were incensed in being prevented from interfering with the command structure of the police. There is little doubt that the questioning of those in political power by virtue of RTI provisions will attract equally explosive reactions. Much will depend on the capacity and strength of the RTI Commission.

Underscoring the importance of RTI

Regardless, the many commonalities of the past and the present are frighteningly similar. For any law to function properly, the role of an independent judiciary is paramount. The Indian RTI law has been interpreted and upheld strongly by Information Commissioners, the High Courts and the Supreme Court to protect the right to know of ordinary citizens. But that assurance is far from being realized here.

Opinions may differ as to whether Sri Lanka’s judiciary will ever recover from the rude shocks successively administered to its integrity from 1999 as a result of the creeping politicization of a Supreme Court once acclaimed in the Commonwealth. While the Sarath Silva Court (1999-2009) marked the high point of bitter public controversy, the succession of each consequent Chief Justice was woefully more mediocre than the last. This Government may be justly be credited for refraining from giving phone calls to judges in order to influence decisions which was common under Rajapaksa. But its rash boast last year that the independence of the judiciary has been restored came after dismissing a sitting Chief Justice by executive fiat, rendering him virtually ‘non-existent.’ The many misdeeds of this ‘purported’ Chief Justice were no justification for such peremptory action. The complicity of the Bar Association in cheering and in fact, enabling this unwise presidential act was disgraceful. We may well hope that this dangerous precedent will not be invoked at a later time by a different President.

That being said, former President Kumaratunga’s pontifications on the value of an independent judiciary may be more convincing if she first apologizes for her misdeeds in regard to politicizing the judiciary. Apologies are of course dime a dozen in this country, even when they are proffered. Thus ex-Chief Justice Sarath Silva’s convoluted apologies for absolving ex-President Mahinda Rajapaksa in the Helping Hambantota case of misappropriating tsunami funds some years ago was thrown to the winds with his joining the ranks of ardent Rajapaksa fans once again. These are about-turns that should hardly shock us.

Shaking off an unhappy past

It has become a common characteristic of Sri Lanka’s political leadership at each and every historical juncture to squander the trust and confidence of the people with effortless ease. In retrospect, one wonders if there is a perennial curse on this land and the dark origin-legends of the ancient peoples do posses a smidgen of truth to them?

Twenty two years ago, a positive peoples’ mandate handed to Chandrika Kumaratunga was soon reduced to nothingness due to a flamboyantly intemperate leadership. Similarly Mahinda Rajapaksa used the South’s gratitude for ending the Northern war to transform Sri Lanka into a family fiefdom as he ruled with an iron hand. There was virtually no judiciary, no police and no public service.

Yet squandering the public trust is not the province of politicians or Chief Justices alone. Under the Kumaratunga Presidency as much as today, there was a direct co-opting of civil society into state structures and the covert support of those wearing several hats of trade union leaders, activist lawyers and the like. In the Rajapaksa years, many were star-struck into obedient submission by the Wanni war victory regardless of the circumstances in which this occurred and the pathos of the Tamil community.

Clear historical patterns

Overall however, Sri Lanka’s historical patterns are clear. At each and every point that a good law is enacted, the political blowback has been severe. Ways are found to undermine that reform, rather than to strengthen it.

Will the RTI law, once (and if) enacted, be an exception to this pattern? Will it radically transform the culture of secrecy that holds Sri Lanka’s political establishment in its iron grip? Answering these questions require more than extraordinary prophetic ability. But unlike other laws, the RTI law can be directly used by citizens to provoke, needle and demand accountability. To that extent, making sure that it works is our responsibility. And as far as civil society is concerned, the past should surely teach us that collaboration with government (if and when strictly necessary) is distinguishable from being co-opted into government. There is an important line between the two that must not be erased.

That much is clear.