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Right to Information: Protecting a fundamental right

12 Dec 2021

By Jagath Wickramanayake PC Prez appoints new members to RTI Commission  Under the provisions of Section 12 (1) of the Right to Information Act No. 12 of 2016, President Gotabaya Rajapaksa appointed new members to the Right to Information Commission, as confirmed by Presidential Spokesperson Kingsly Rathnayaka. The new officers are:
  • Supreme Court Judge Upali Abeyratne – member and Chairman
  • Liyana Arachchilage Jagath Bandara Liyana Arachchi – member
  • Kishali Pinto Jayawardena – member
  • Rohini Walgama – member
  • Dr. Athulasiri Kumara Samarakoon – member
In a democratic state, electing the government or deliberating and deciding on legislation lies with its people. In Sri Lanka, being a country where such powers are exercised by the people through their elected representatives, the State and its entities are entirely maintained by public money. Hence, it is a fundamental right that the people should exercise the right to know or, in other words, the people’s right to information. It is, in fact, a human right that is embedded in a civilised society in many jurisdictions. Access to information, which reflects that a government should be responsible to its people, has been recognised in international treaty law as well as domestic laws in many countries today. Although in 1990, there were only 13 countries which recognised such a right within their domestic laws, now there are more than 100 countries which implement them. The United Nations Commission on Human Rights called on the Special Rapporteur to develop further on his commentary on the right to seek and receive information and to expand on his observations and recommendations, which led to a statement by him in his annual report in 1998 to declare that the right to access information held by the state is included in the freedom of right to expression. In 2004, the Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the Organisation for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media and the Organisation of American States (OAS) Special Rapporteur on Freedom of Expression declared: “The right to access information held by public authorities is a fundamental human right which should be given effect at the national level through comprehensive legislation (for example, Freedom of Information Acts) based on the principle of maximum disclosure, establishing a presumption that all information is accessible subject only to a narrow system of exceptions.” The universally accepted best practice standards on freedom of information legislation were introduced under Article 19 of the Universal Declaration on Human Rights, which reads: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinion without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.” Such best practice standards include principles such as maximum disclosure of all information held by public bodies, obligation to publish key information by public bodies, duty cast on the public bodies to actively promote open government having limited scope of exceptions to the right to access information, a request for information to be processed rapidly and fairly and to have a process of independent review of any refusal to disclose information, and charging a reasonable cost protection for whistleblowers who expose wrongdoings by the public authority. Although the first Right to Information (RTI) legislation, namely the Freedom of the Press Act of Sweden, was introduced in 1766, it took almost 250 years for Sri Lanka’s Legislature to accept the right to information as a right of the people. In 2015, Sri Lanka brought in the 19th Amendment to the Constitution, which explicitly guaranteed a citizen’s right of access to information held by public authorities under Article 14A, by way of a fundamental right. However, without a separate legislation to accommodate the process by which such rights can be exercised, the constitutional provisions would become useless and meaningless. It is in this backdrop that the Right to Information Act, No. 12 of 2016 was passed in Parliament. The road to enacting the RTI Act, in fact, was a hard one. In 1996, under the chairmanship of late Justice Dr. A.R.B. Amerasinghe (Judge of the Supreme Court), the Sri Lanka Law Commission drafted and circulated, for the first time, a Freedom of Information Bill, but that never saw light of the day. The Draft Constitutional Bill of 2000 was the second attempt to afford constitutional protection to the right to information in Sri Lanka, but that too was not successful. For the third time, the then Government in 2003 made an attempt to introduce a Freedom of Information Act with the support of the Opposition and the civil society movement and such attempt came to an end with the dissolution of the Parliament in 2004, though it had received the approval of the then Cabinet. Thereafter, in 2010, United National Party (UNP) MP Karu Jayasuriya made an attempt to bring in the RTI Bill – which may be termed as the fourth attempt for such a step – as a private member’s bill in Parliament, but the same was withdrawn later, on an undertaking given by the Government to introduce legislation targeted at promoting freedom of information. Since such step was not forthcoming, Jayasuriya stepped forward again in 2011 to re-introduce the Bill in Parliament, but the same was defeated in a vote with 97 members voting against the Bill and receiving only 34 in its favour, in a vote that was taken to decide whether such a Bill was to be debated in Parliament or not.  With such a history, managing to introduce the RTI Act was a victory for the people of Sri Lanka, as it helps to protect democracy by holding the government accountable for its actions due to the fact that people’s access to information was recognised as a fundamental right. The RTI Act provides for the establishment of an independent, impartial, and transparent commission to execute the right to access information, comprising five persons, as specified in Section 12 of the Act. The said five persons are to be persons distinguished in public life, with proven knowledge, experience, and eminence in the fields of law, governance, public administration, social services, journalism, science and technology, or management. They should not be connected with any political party and should not be persons who are carrying on any business or pursuing any profession. Also, they cannot hold any public or judicial office or any other office of profit. Those members cannot be members of Parliament, any provincial council, or a local authority. This entails a commission which shall not be subjected to political influence or otherwise. The commission so formed is duty bound to monitor and make recommendations to ensure that the public officials truly adhere and act accordingly and not limit the provisions in the RTI Act to being a toothless tiger. The RTI Act has introduced a simple procedure in order to assist the general public to exercise their right to access information. The procedure has established a hierarchy of officials to cater to the general public, which creates a checks and balances system. The information officer and the designated officer shall be appointed by every public authority. Upon the failure and/or neglect of one official to fulfil his duties diligently, the other ranked official shall have an opportunity to rectify the failure and/or negligence or otherwise and protect the fundamental rights of the people. Thereafter, if one is dissatisfied with the determination and/or conduct of the designated officer, it is stipulated in the provisions of the Act that one has the right to appeal to the commission. Be that as it may, upon one’s right to information being violated in the hands of the information officer, the designated officer, and also the commission, one could still be able to seek relief in the Court of Appeal. The procedure set out in the Act ensures that this exercise shall not be a mere exchange of correspondence but paves the way to justice. Nonetheless, the Act also depicts certain sensitive information to be withheld under the exception of keeping national security, the economy, and personal information unharmed. This procedure also gives the people the power to appeal, by which the public officials will be compelled to execute their duties within the time frame specified in the RTI Act, which will secure an efficient and expedient system.  The commission, once appointed by the President on the recommendations of the Constitutional Council (as the law then was), is to serve the public for a period of five years. However, upon the expiration of the tenure, new members need to be appointed. On 30 September 2021, the tenure of the first commission, which acted fearlessly and independently, came to an end. There is no doubt of their decisions; the first Commission most certainly expanded the scope of the people’s right to information in Sri Lanka. The independent nature of such a commission is well evident with its decisions in overturning and upholding the decisions of certain designated officers appointed under the RTI Act. The duties cast on the commission were not only confined to making decisions of the appeals against refusals by any public authority (through the information officers or designated officers), but include monitoring the performance and ensuring the due compliance by public authorities of the duties cast on them under the RTI Act, making recommendations for reform of such duties of specific or general nature, issuing guidelines based on reasonableness for determining fees to be levied to release information, prescribing circumstances in which the public officers to release information without any charging any fees, prescribing fee schedules based on the principle of proactive disclosure in regard to providing information, undertaking training activities for public officials on the effective implementation of the provisions of the RTI Act, publicising the requirements and the rights of individuals under the RTI Act, and issuing guidelines for the proper record management for the public authorities.  There is no doubt that every single duty vested with the commission is important to the people of Sri Lanka in the context of their fundamental rights guaranteed by the Constitution. It is observed that considering the significant duties placed upon the commission in order to maintain the democratic values of the State, the commission cannot be kept in abeyance even for a single day. I believe, that it is why the legislature, in its own wisdom in deciding to abolish the Constitutional Council established under the Constitution, and introducing the new Parliamentary Council, paved the way to allow the Parliamentary Council to carry out the functions of the Constitutional Council in relation to the recommendations or approvals of appointments, such as those to the RTI Commission, under Section 59 of the 20th Amendment to the Constitution. Furthermore, Section 12(3) of the RTI Act makes it compulsory for the Parliamentary Council to make its recommendations to appoint commissioners within one month from the date of a vacancy arising in the commission. This provision also provides for the Parliamentary Council to make its own recommendations after the expiry of the said one month, in the event if the organisations such as the Bar Association of Sri Lanka, organisations of publishes, editors, and media persons, and other civil society organisations fail to make nominations within the stipulated period. However, it is regrettable to note that the Secretary General of Parliament had published a notice in the newspaper on 4 October 2021, calling for such nominations soon after the tenure of the first Commission came to an end on 30 September 2021, but, to date, no appointments have been made to the commision. This is a clear violation of the law and a direct violation of the fundamental rights of the people of Sri Lanka. The Bar Association of Sri Lanka, whilst re-nominating Kishali Pinto-Jayawardena to the Commission, two weeks prior to the first term of the Commission coming to an end, urged the Parliamentary Council, the President, and the Speaker, who chairs the Parliamentary Council, to expeditiously constitute the RTI Commission so as to allow the Commission to continue uninterruptedly, safeguarding the rights of the people of Sri Lanka. Yet, the appointments have not been made. Whether it is due to the failure on the part of the Parliamentary Council to make recommendations to the President or not, is still unknown. However, the Parliamentary Council should take immediate steps to reconstitute the RTI Commission and ensure that the fundamental right of the people enshrined in Article 14A of the Constitution is protected. (The writer is a President’s Counsel)


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