Using Sri Lanka’s RTI as an ‘extraordinary exception’

Sunday, June 26, 2016

This Friday as Sri Lanka’s Parliament unanimously approved the  amidst the mumbling discontents of its gloomy detractors in the House, sceptics raised a rare and hearty cheer.

Born out of a tortuous process ranging back over two decades and frustrated by political hostility on several occasions, it was difficult to believe that this country had at last passed an information law which, though not perfect as such laws rarely are, eminently sufficed for the purpose.

A powerful tool to demand answers

The primary importance of Sri Lanka’s RTI law, once in force, will be its raw power in the hands of ordinary citizens to demand answers from politicians and public servants. Fashioning RTI into a powerful tool can transform Sri Lanka, far more than goose-stepping commissions, committee or task forces can ever hope to achieve.

It can also have immediate direct impact on peoples’ rights as opposed to convoluted constitutional provisions which depend on enlightened and liberal judicial interpretation, a quality that Sri Lanka has sorely been lacking in recent decades.

The core of RTI lies in the embracing of the law as their own by Sinhalese, Tamil and Muslim citizens whether in demanding information regarding to moneys spent in building a culvert by a local authority or in demanding information in regard to the ‘disappeared.’

The use of RTI against ‘black money’ rackets

This is how it has been worked in India which is perhaps the most eloquent example in the region. The RTI impact on ‘black money’ rackets driven by politicians and profiting businessmen has been startling. Just a few months ago, massive evasion of tax and money-laundering was exposed through an RTI application filed before the Department of Income Tax by a retired Indian inland revenue service official where income from undisclosed sources was shown as agricultural income despite the level of production remaining the same.

This irrational boost during 2010-2011 in agricultural income as declared by some assesses coincided with the period during which government-initiated enquiries regarding black money in foreign accounts. The RTI disclosures have led to the Government pledging to hold an inquiry.

Further RTI requests have led to refusal by the Department on the basis that the applicant has not disclosed sufficient public interest compelling such disclosures between the Department and tax-paying citizens held in a fiduciary relationship. In response to this denial, a public interest petition has been filed in the High Court with the High Court calling for a reply from the Government. This is RTI activism in full swing.

Judicial interventions into financial scandals

In any event, the Indian courts have been successfully utilised to raise public awareness on gross financial scandals. Spurred by disclosures in the media, a wealth of information on money laundering rackets of Indians with massive unaccounted ‘black money’ accounts in foreign banks has come into the public domain. In 2011, the Indian Supreme Court issued an order on a public interest petition filed by senior lawyer and politician Ram Jethmalani directing the disclosure of names of Indian account holders in a Liechtenstein bank. The judges reprimanded the Government for its lack of interest in probing money laundering schemes and ordered the setting up of a multi-disciplinary team to investigate the alleged crimes. The Government’s appeal that a double taxation avoidance treaty between India and Germany prohibited revealing names of the account holders was dismissed.

At the centre of this scandal is a stud farm owner and scrap dealer Hasan Ali Khan who was estimated to have stashed away millions in foreign banks. Despite the Court’s 2011 authoritative order, the information on foreign bank account holders has been slow in coming. The Court warned consequently that this lack of action could amount to contempt of court. The investigation team headed by a retired justice began inquiring into the case. But there are undertones familiar to Sri Lanka as continuing lack of official vigor in pursuing the matter led to harsh criticism.

Writing to the Sunday Guardian on 23rd September 2015, Jethmalani subjected the Government to a scathing attack, pointing to the fact that ‘instead of implementing the order, it is focusing on how to get it reviewed, recalled or diluted.’ This year, Jethmalani engaged in another tactic familiar to Sri Lankans; he apologised to the Indian public for once supporting Prime Minister Narendra Modi. Indian authorities have admitted that Khan owes the Income Tax Department the largest recovery amount in Indian tax history amidst fears that this may not be recoverable. Year by year, the amount owing by Khan to the Department has been whittled down with Khan spending only a brief stint in jail.

Correcting outrageous political betrayals

These are lessons that we should learn from India and elsewhere. Indeed, Sri Lanka gingerly steps into an ‘RTI-era’ long after it actually should have claimed such a law as its own. The 2004 Cabinet approved RTI Bill was defeated by the political pusillanimity of the Kumaratunga Presidency which dissolved Parliament while the Bill was about to be presented and by the chicanery of the Rajapaksa Presidency which outrageously declared that it was the source of all information.

Save for these unforgivable political betrayals, the RTI law would have been in Sri Lanka’s statute books during the past decade at least.

Even now and exuberance over the passing of the Bill nonetheless, the real difficulties lie ahead. RTI must be evidenced through vigorous activism in Sri Lankan villages and far flung outposts of the country, not limited to ‘information seminars’ and ‘talk shops’ in Colombo like many other such exercises. It must not be allowed to languish like information laws in Nepal and the Maldives.

Using the RTI differently

Our past experiences have not been encouraging in that regard. We have a plethora of laws which are excellent in theory but lamentably deficient in practice. The 1994 Convention Against Torture (CAT) Act is a prime example of this failure. In some respects, its legal thrust is even better than the United Nations Convention against Torture itself. Yet its implementation is dismal, due to deliberate obstruction and lack of political will by state actors including the Department of the Attorney General.

The challenge before us is to prove the RTI as the extraordinary exception to this disheartening rule.