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Spotlight on RTI Commission

26 Dec 2021

  • One Commissioner resigns; cites conflict of interest
  • Questions over RTI Comm. Chair holding OMP post
  • Lack of inclusion at RTIC highlighted by civil society
  • Already resigned from the post of OMP Chair: Abeyratne
  • RTI Act: Changes needed, says Mass Media Minister
By Skandha Gunasekara The Right to Information (RTI) Commission, an institution once held in high regard, now has its integrity questioned due to controversial appointments and the abrupt resignation of one of its members, with civil society calling for transparency. On 16 December Dr. Athulasiri Kumara Samarakoon handed over his letter of resignation to President Gotabaya Rajapaksa stating a conflict of interest, as he was holding office at the Open University of Sri Lanka (OUSL) and could not give up that post. “Since I’m permanently employed at the OUSL and engage in other civil society and political activities, I saw a conflict of interest between my professional obligations and the obligations I was going to have towards the Commission. The Act clearly says that the Commissioners cannot be employed in any other employment, so that is exactly what I told the President in my resignation letter,” Dr. Samarakoon told The Sunday Morning. When The Sunday Morning queried as to whether he was unaware of the clause, Dr. Samarakoon said that his hasty nomination and appointment had led to him accepting the position, and just days later stepping down due to the conflict of interest. “Actually, this happened so suddenly when the civil society nominated me. Anyway, we had the idea that it wouldn’t be difficult for me to get the institutional permission from the University but then I realised that it would be difficult for me to be away from the University for a five-year period. It is difficult from an institutional perspective because we don’t have staff. So basically, to avoid any sort of conflict of interest I decided (to resign). It requires total independence of the Commissioners. That is the point that I'm stressing. If other Commissioners are already obliged to other organisations or institutions, they also should resign. You can’t do politics and other businesses and be a Commissioner. I had to act according to my conscience,” he emphasised. According to Section 12 (2) of the Right to Information Act, a Commissioner could not hold any public office or any other office of profit. Meanwhile, controversy surrounds the appointment of the Commission Chairman, former Justice Upali Abeyratne. Questions have been raised regarding him holding the Chairmanship of the Office of Missing Persons (OMP) while being appointed the Chair of the RIT Commission.  “If both are paid positions, then him being the Right to Information Commission Chairman is a violation of the Right to Information Commission Act,” Law and Society Trust Executive Director Sakunthala Kadirgama told The Sunday Morning.  Kadirgama further pointed out that a lack of minority representatives in the RTI Commission was also an issue. “The fact that there are no minority representatives from the Tamil or Muslim community is also an issue. But then the Government has not prioritised inclusion at all so that is another issue. If you look at the former RTI Commission and the Human Rights Commission when they were first composed, they did a lot to build up their stature. Those commissions are built not just by the creation of the commission but also the personalities who occupy those posts and the effort, integrity, and enthusiasm they put into those commissions. The former Human Rights Commission also really tried to put that stamp on the Human Rights Commission and so did the former RTI Commission.”  She charged that attempts are being made to weaken the proper functions and duties of the Commission even without resorting to legislative changes and that such weakening could result in crucial information being held back from the public domain at the expense of public interest.  “But now there is a way of gutting a commission without even changing the laws by and that is through the nomination process. The fact that there are no minority members and the fact that there are members whose presence is being contested; these are all serious issues. And once they are in these positions, I don’t know how rigorous they are going to be in providing the right to information.” Transparency International Sri Lanka too objected to the new Chairman of the RTI Commission.  Transparency International Sri Lanka (TISL) Executive Director Nadishani Perera said that no official communication had been issued thus far that the Chairman had stepped down from his post at the OMP.  “One reason for our objections to the appointment of the former Judge is that the Act clearly states the Commissioner should not hold any other public office for which they get a payment. So, he is having a salaried position under the OMP, because if that is the case, then he must resign from that post. But there has been no such communication made that he plans to resign from the OMP so there is a conflict.” She said that the matter could be taken up before the judiciary.  “We as citizens can question these appointments. They can continue to operate but there is a big problem, and someone can go to courts on the grounds that such an official doesn’t have the authority to function. It will be an interesting case because it is an independent commission, and the President has the power to make the final call with regard to the appointment but then the President has to follow the law.” Perera urged that the RTI Commission function in a transparent and credible manner as it had done so in the past.  “The expectation is that he will give his resignation to one of the positions. The problem is that so far, no such communication has been made. Honestly this was one Commission that was independently functioning well in the past five years so we earnestly want it to remain so and we hope that these issues will be sorted out.” Meanwhile, Mass Media Minister Dullas Alahapperuma said the Commission could function sans one member.  “The Act clearly states that when there is a vacancy in the Commission the Parliament Council advertises the vacancy and then from those who apply a few are selected and a shortlist is sent to the President to make an appointment. The Commission can function and meet even while there is a single vacancy. A single vacancy will not hinder the functions of the Commission,” the Minister said.  When questioned as to when the Chairman would step down from the OMP post, the Minster said that it was up to the Chairman to make such a decision. “The Chairman must decide which office he steps down from. It’s only been a week or so since he started in this post as the Chairman of the RTI Commission.” The Minister, commending the Yahapalanaya Government for establishing the Commission, went on to say that the RTI Commission should be gazetted as an independent institution and that it should not be under the Ministry of Mass Media.  “The establishment of this Commission was an important and positive thing the Yahapalanaya Government did. However, I strongly believe this Commission should not be under the Ministry of Mass Media. It should be an independent body much like the Auditor General’s department. Such a change being made in the Act would be very valuable. While it has been gazetted under the Media Ministry, the Ministry has no powers to intervene in the functions of the RTI Commission. There is no need anyway. Meanwhile the President makes the appointment. So, it’s gazetted under the Media Ministry, nominations are made by the Parliament, and appointments are made by the President. All of this is out of place, and I believe that it would be best that changes be made to the legislation and the RTI Commission be made a completely independent institution. This is a very important institution to the country. We need to rectify this.” Right to Information Commission Chairman Former justice Upali Abeyratne, said the RTI Commission could function while a new appointment was made to the vacant position. “The Commission can function with the current number of members while the vacated seat is filled,” he said. He further stated that he had already stepped down from the Chairmanship of the OMP.  “I have already stepped down from that post.” However, the President’s Media Division was unable to confirm the resignation. “We have not received any official information of the resignation of Mr. Abeyratne from his post as Office of Missing Persons Chairman,” senior sources at the President’s Media Division told The Sunday Morning.


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