South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

Published in The Island on Jan. 24 by Randima Attygalle ::

‘When information which properly belongs to the public is systematically withheld by those in power, the people soon become ignorant of their own affairs, distrustful of those who manage them, and – eventually – incapable of determining their own destinies’- Richard Nixon

Be it a parent whose child is not admitted to a school or a public servant who is dissatisfied with an examination result, the aggrieved party should have a right to know on what basis such decisions were arrived at. Right to Information (RTI) is not merely a journalist’s ticket on which he/she could exercise the right to credible sources to substantiate a story but a right of society as a whole.

RTI is a pillar of a viable democracy helping to assure good governance, transparency and accountability. This right which focuses its beam on all arms of government, is also a tool for stamping out corruption and abuse in state institutions. Since the late 90s various forums including the Editors’ Guild of Sri Lanka, Free Media Movement and the Centre for Policy Alternatives had been lobbying for it with several alternative drafts presented. But nothing tangible has been so far been realized although the urgency for implementation has been recognized.

Denial of information misleads journalists who are a channel of information to the general public. Information obtained through unnamed ‘sources’ is obviously less satisfactory than attributed material and could misguide and confuse the public as well. What RTI affirms is a culture of democracy and transparency as opposed to that of secrecy and despotism.

Although the right to information is not explicitly articulated in our Constitution, certain judgments of the Supreme Court have held that it is implicit in the right to freedom of speech and expression set out in Article 14 (1). The right is also upheld by other affirmative laws to which we are a signatory although sadly it’s not championed to date.

The UN’s General Assembly at its inaugural session declared that, ‘freedom of expression is a fundamental human right and it is the touchstone of all the freedoms to which the United Nations is consecrated.’ Professor Thomas Emerson in his work, ‘The System of Freedom of Expression’ states, ‘a system of prior restraint is in many ways more inhibiting than a system of subsequent punishment; it is likely to bring under government scrutiny a far wider range of expressions; it shuts off communications before they take place; suppression by a stroke of the pen is more likely to be applied than suppression through criminal process; the system allows less opportunity for public appraisal and criticism…”

Breaking walls of secrecy

Speaking to Sunday Island, Secretary to the Ministry of Mass Media and Information, Karunaratne Paranavithana, said that “corrupt elements cannot play hell” with an RTI Act in place. This would enable the free flow of information regarding government tenders, transactions etc. According to the 100-day program of the newly elected regime, the RTI Bill will be tabled by February 20 and implemented by April 11.

Paranavithana asserts this law has been long overdue. The political environment is now conducive to realize it. “With the implementation of this much-needed law, walls of secrecy would be broken. While it would give the journalist the power to ask questions, the ordinary citizen will have the right to information which concerns them. It will also compel officials to handle all transactions with transparency.”

A working committee comprising Secretary to Media Ministry, Secretary to Justice Ministry, representatives from the Attorney General’s Department and Legal Draftsman Department, selected public servants, academics and prominent media personnel will be responsible for finalizing the Bill which is going to be a collective study of numerous drafts and working papers available. Among them are several Private Member Bills presented to Parliament. “All the available drafts and working papers presented by various forums will be studied carefully and if required, they will be further developed in order to present the most progressive recommendation,” Paranavithana said.

He pointed out that for any RTI law to be an effective, there has to be an implementation authority. “This is true in the case of the Indian law as well as other examples before us,” he said. “A fully fledged RTI Commission will be responsible for executing the powers of the Act. The Commission will appoint various officers from the President’s office down to Divisional Secretariat level. It’s hoped that the public will make use of the provisions and wide awareness of their existence should be created. The media could play the most crucial role in this.”

Once enacted, the RTI law will have limitations as in the case of any RTI law but as the Media Secretary points out, they are ‘realistic reservations’ such as those concerning national security and ethical norms such as individual privacy.

RTI and value-added democracy

Senior lawyer and human rights activist, J.C. Weliamuna says that within a democracy, the most tested and accepted way of governance, right to information is a salient feature. “Our bargaining power is much more in a democratic setting because it’s much more vibrant with more balances than in any other system of governance. Even at an individual level the choices are more unlike in a despotic setting which we experienced till recently.”

Urging society, ‘not to forget the immediate past’, he says that with the ‘shifting of mindsets coupled with a certain political ideology’, the stumbling blocks for the realization of RTI are now behind us and the time is ripe to make it a reality.

“The previous government was neither open for discussion nor transparent. Using the trump card of national security, it took the view that right to information would expose the country to international investigation. It was used as a cover to conceal their activities from the public eye. Not only those who challenged the regime were called traitors but even those who lobbied for RTI were labeled as such.”

Commending on the civil society groups which had been keeping the discussion on RTI alive for so many years with several drafts, Weliamuna said that divisions in certain fraternities including the media was an obstacle in making a stronger case. “Journalists were divided as much as other political parties,” he reflects pointing out that the right is for all. At the same time he commends forums such as the Editors’ Guild and the Free Media Movement which had been pressing for RTI tirelessly. “A journalist will make it a tool but it’s for the benefit of the public.”

Weliamuna is critical of a setting where journalists will have to depend on ‘sources known to them’ for information in the absence of a transparent institutional mechanism. “Today the move to enforce RTI is a political challenge as it’s on the 100-day manifesto of the newly elected regime.” Right now there is consensus on this issue he says asserting that for ‘value-added democracy’ this right is imperative and the 19th Amendment recognizes it as a fundamental right. This recognition will enable governance structures to fall in line with RTI. Weliamuna urged that proper legal provisions are made enabling the public to exercise this right aggressively.

For transparency and good governance

The Editors’ Guild of Sri Lanka together with other forums such as the Free Media Movement and the Centre for Policy Alternatives (and their lawyers) worked on a draft Freedom of Information Act as it was then called back in 2003. The Prime Minister at the time was Ranil Wickremesinghe and a committee under his chairmanship steered this piece of legislation with the assistance of the then Attorney General, Secretary, Justice Ministry and the Legal Draftsman’s Office. The Bill was passed by his Cabinet in early 2004 but Parliament was dissolved the same year before it could be passed into law.

“We never heard of it thereafter, until there was an attempt to have it introduced in Parliament as a Private Members’ bill by Mr. Karu Jayasuriya. In 2010 then Justice Minister Milinda Moragoda presented a revised draft of the 2004 bill by then called the Right to Information Act to President Rajapaksa; but for very obvious reasons his Government did not want such a law for the country,” recalled Sinha Ratnatunga, Editor, Sunday Times.

This right is crucial for good governance, says this senior editor stressing that the law is for the ordinary citizen and not just for the media. “The citizen has a right to know how his/her money, obtained by the State through direct and indirect taxes, is being spent; how much is spent to build a highway or a bridge or more personally, why one’s child is not taken into a particular Government school and so on. It’s all about opening official information to the public rather than keeping it secret. Eventually, it’s good for the Government as well because it keeps them honest and avoids wild rumours.”

A progressive law

Right to information doesn’t warrant unlimited access to information as ‘in-built safeguards’ in the law provide exemptions. National security, personal medical records, sensitive communication between states and the like are exempted from this law and as Ratnatunga asserts, “it’s not a case of abusing this law – if the media can use this law that will be good enough.”

Although we would have been the first to bring such law in South Asia, India eventually beat us by enacting legislation related to RTI in 2005. Commenting on the Indian experience from which we could take a cue, Ratnatunga says, “it is 10 years since they enacted it and their law needs some revision, they say. RTI legislation that came later, like the Bangladesh RTI is more advanced. So, at least we have that advantage that our law will be, hopefully, better than the Indian RTI. But as the Indians have 10 years experience in implementing their law on RTI, we can benefit from their lessons learnt on the field while we were struggling merely to pass such a law. All modern states, more than a hundred around the democratic world, have an RTI law. Why not Sri Lanka?”

A checking mechanism

Dr. Rohan Edrisinha, formerly at the Faculty of Law, University of Colombo says RTI seeks to empower the citizen by ensuring that politicians and bureaucrats are responsive and accountable to them. “It promotes continuous public participation and engagement in public affairs not merely every five to six years at the time of an election, but acts as a checking mechanism to prevent abuse of power and corruption. It also seeks to change the political culture of a country. Here we have a culture of authority and secrecy and it needs to be converted to a culture of justification and openness.

“Many international covenants such as the ICCPR recognize such a right. We have talked about such a law for many years. In 1995 the Committee on Media Law Reform chaired by R.K.W. Goonesekere not only proposed a right to information law but we also suggested various basic principles and features for such a law. The Law Commission in 1996 and thereafter has proposed a law. The closest we came to actually adopting a law was under the cohabitation government of President Kumaratunga and Prime Minister Wickremasinghe when the Prime Minister chaired a series of meetings with his advisors and representatives from the Free Media Movement, Editors Guild and the Centre for Policy Alternatives, at which a compromise draft was accepted and thereafter approved by the Cabinet of Ministers in February 2004. Unfortunately the government collapsed and the Bill could not be enacted into law.”

Effective implementation

The issues which arose in the discussion that preceded the agreement on a draft Bill remain relevant says Edrisinha. The acceptable exceptions to the RTI regime for instance, are important. “There is no point having a law with a comprehensive and blanket set of information that falls outside the purview of the law. It’s similarly of no use having a comprehensive list of rights in a Bill of Rights if the executive can introduce restrictions to those rights almost at will for reasons of executive convenience.” Given the culture of authority and secrecy that has existed in this country, there is a need to prepare for this change in culture, he adds.

“Public Servants who have got used to a different approach as demonstrated by the Establishment Code and its rules and procedures, which reflect a culture of authority and secrecy, need to be helped to prepare for the change. Like in the UK it may make sense to provide for some time for preparation prior to the operation of the law.”

Practical measures need to be introduced particularly in government departments to ensure that the law is implementable and does not remain a dead letter, says Edrisinha acknowledging the need for an independent Freedom of Information Commission to lead the effective implementation of the new law. Many of the regional countries including India and Nepal have adopted RTI laws and it’s important for us to learn from comparative experience to ensure that our law is effective. “It’s better not to have a RTI law than to have a bad law.”


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