• Media activists and lawyers discuss contours of the debate provoked by the Court of Appeal’s recent decision siding with the RTI Comm. over the P’ment concerning the disclosure of MPs’ assets, liabilities 

When individuals become public representatives with the public’s vote, some of their personal information becomes public. When it comes to information pertaining to their assets and liabilities, especially those that were earned during their tenure as public representatives, there is an undeniable public interest aspect to such information. Therefore, although public representatives have a right to protect personal information, it is important to reconsider where the line between their personal information and personal information of public interest should be drawn.

In response to an appeal filed by Parliament against an order issued by the Right to Information (RTI) Commission to release a list of Parliamentarians that had not submitted their assets and liabilities declarations, as requested by journalist Chamara Sampath under the RTI Act, the Court of Appeal issued a verdict in favour of the RTI request, observing that the provisions of the RTI Act are above the provisions of the Declaration of Assets and Liabilities Law. 

While this verdict was recognised by activists as a landmark decision that reiterates the powers of the RTI Act and the citizens’ right to information, it sparked a number of concerns regarding the extent to which such information could be concealed or revealed, and also about not revealing information on the grounds of privacy, which was the main argument presented by the Parliament in addition to the claim that issuing such a list would violate the MPs’ Parliamentary privileges. 

This was discussed during a recent discussion on “Beyond the Court of Appeal’s judgement on the provisions of the RTI Act: Can public representatives continue to conceal their assets and liabilities from the public?” which was organised by the Free Media Movement (FMM). 

The Court of Appeal’s verdict and the RTI Act

FMM Convenor Lasantha De Silva pointed out that the court’s stance, in the context of the abovementioned case, was that the provisions of the RTI Act are superior to those of the Parliamentary (Powers and Privileges) Act and the Declaration of Assets and Liabilities Law and that that is something that should be further explored, especially in order to further strengthen the RTI Act.   

Attorney-at-Law Thishya Weragoda explained that in this discussion about the powers of the RTI Act, it is important to understand how the right to information came into existence. It was incorporated into the Constitution through the 19th Amendment to the Constitution and is guaranteed under Article 14A of the Constitution which refers to the citizen’s right of access to information. Noting this, he opined that the right to information is not a right that comes under an ordinary law but is a fundamental right (FR) which also comes under the FR Chapter of the Constitution. “It is because this right is given as an FR that the court’s verdict clearly mentions that this is a special right. We may have a right to obtain information under ordinary or civil law. However, in this case, it is a right that goes beyond such legal provisions, because this right has been declared as an FR in the Constitution,” he explained, adding that that is the basis of the court’s verdict that this constitutionally guaranteed right, in a certain way, is more powerful than the provisions of the Assets and Liabilities Declaration Law and that revealing the aforesaid information does not violate the MPs’ Parliamentary privileges. 

“In this case, our argument was that in accordance with the Assets and Liabilities Declaration Law, while all MPs are legally bound to submit their assets and liabilities declarations to the Speaker of Parliament, the latter and the Cabinet Ministers must submit the same to the President. When the RTI request was submitted, there were no separate Information Officers for the Parliament and for the Speaker, and therefore, these documents (assets and liabilities declarations) must have been in their possession at the time. The Parliament’s Secretary General’s duty is to ensure the implementation of the Parliament’s affairs in accordance with the orders of the Speaker. The question, in this case, was whether it is possible to decline to provide a document received by the Speaker as per the law.” 

Adding that during the aforementioned case, limits pertaining to MPs’ Parliamentary privileges and the provisions of the Assets and Liabilities Declaration Law were cited as the grounds for the inability to provide the requested information about MPs’ assets and liabilities declarations, Weragoda further explained the legal situation: “The right to information that comes under Article 14A is subject only to the limitations set by Section 5 of the RTI Act. That is because Article 14A clearly states how limitations could be set, and the limitations applicable to Article 14A are specified under Article 14A itself. It is in accordance with those limitations that the limitations of the RTI Act have been set. When the RTI Act was passed, before it was presented in Parliament, it was discussed in the Supreme Court (SC). Our stance was that certain limitations specified under Section 5 of the RTI Act were extraneous to the limitations specified under Article 14A. Against that backdrop, the Parliament had to remove certain limitations in the RTI Bill before the Act was passed. Therefore, there could be no limitations beyond those specified in Article 14A.”

Personal information vs. personal information of public interest 

The two speakers further discussed the powers of the RTI Act and the Parliament’s arguments that the aforesaid list was a matter that pertains to MPs’ personal information and Parliamentary privileges. They noted that while MPs are entitled to privacy, the citizens too should have a right to know about the assets and liabilities of their representatives, especially due to concerns of corruption. Weragoda explained that it is possible to deny the provision of information requested through an RTI request. Noting however that the confidentiality of a document submitted by an MP in accordance with an Act depends on its use, Weragoda added that any person has a right to use it, although revealing such information is what is prohibited. He added that the purpose of the provisions pertaining to confidentiality is to protect MPs’ confidential information and that this purpose cannot be used to evade the responsibilities that come with another Act. In a context where an MP could be fined for not submitting his/her assets and liabilities declaration, Weragoda stressed that the fact that such a fine could be imposed negates the argument that revealing information about the MPs that have not submitted their declarations violates MPs’ Parliamentary privileges, because, such legal action cannot be taken if the failure to submit their declarations was in fact protected under Parliamentary privileges.

Meanwhile, another speaker Attorney-at-Law D.M. Dasanayaka shared Weragoda’s argument that in a context where MPs could be penalised, i.e. fined, for the failure to present their assets and liabilities declarations, that is a clear sign that it is not a matter of Parliamentary privileges. With regard to the argument that information about MPs that have not submitted their assets and liabilities declarations should not be revealed when the Act under which it should be provided or is required, i.e. the RTI Act, clashes with another Act, i.e. the Assets and Liabilities Declaration Law, he counter-argued that it is not a valid argument, because the right to information is a right that has been guaranteed through the Constitution, and also because the RTI Act is the latest Law out of the two Acts and that it should therefore be given priority. According to Dasanayaka, even if the assets and liabilities declarations of incumbent MPs were not disclosed, since it is possible to obtain those declarations of MPs who have been voted out, it would technically be possible to obtain the declarations of the existing MPs once they are voted out. 

“In my opinion, as per the law, there is no obstacle to obtaining copies of assets and liabilities declarations, as it has been ensured through the Assets and Liabilities Declaration Law,” he stressed. With regard to privacy-based arguments against the RTI request in question, he explained: “Without publicising information pertaining to privacy, we can use information that is not related to privacy. However, there is a question as to what information of a public representative does not become private information. If a person enters politics or becomes a public representative, he/she should be ready to allow even personal information to be treated as public information, because, the public has a special right to know how public representatives amass properties during their tenure. This is not merely a matter of assets and liabilities. This is also a matter of bribery and corruption.” 

In addition, he added that although there are limitations that prevent information from being revealed on the grounds of privacy in Sri Lanka, there are systems in other countries that ensure that such information is revealed voluntarily or is provided with no special regulations. The situation in Sri Lanka, he added, has however supported politicians to hide information about illegally earned wealth.