RTI: One step forward, two backwards

Few would quarrel with President Maithripala Sirisena’s statement on Tuesday as he inaugurated the second session of the 8th Parliament, that his National Unity Government had enacted several ‘people friendly laws’, including the Right to Information (RTI) Act. The President praised the RTI Act as ‘the strongest such act to empower citizens of any country in Asia.’

Coincidentally these remarks were made at the very same time that RTI commissioners, experts, advocates and practitioners as well as government officials were enthusiastically applauding the strides that Sri Lanka has taken at a global conference hosted by the Sri Lanka Press Institute in Colombo to mark the first anniversary of the implementation of the law.

Even though a draft RTI law had been finalised long before our neighbours in the region had enacted RTI legislation, Sri Lanka marked a sad late entry due to the 2004 draft being pushed aside by the successive Presidencies of Chandrika Kumaratunga and Mahinda Rajapaksa for reasons that are pretty obvious – they did not like transparency in government. Therefore, as Sri Lankans actively using RTI today will no doubt concede, the incumbent President’s boast on Tuesday is well merited. Much of that credit is due to his Prime Minister Ranil Wickremesinghe who first gave it the political leadership, and then saw it through in 2016.

With this progressive law coming into force in February last year, and the RTI Commission getting activated, there has been an impressive turnout from the ordinary public at accessing information that had hitherto not been available to them. As the Press Institute Chairman, however, lamented this week, the media are yet to take full advantage of this law to ferret out locked information for the public good, though the ordinary citizens have seen the benefits accruing to them.

And yet, this seemingly rosy picture is at odds with a disturbing trend whereby the very Government which pats itself on the back for its RTI success including at the 37th session of the Geneva based United Nations Human Rights Council in March this year, is approving more and more laws that protect members of various entities from being subjected to RTI scrutiny.

One prominent example was the Office of Missing Persons Act enacted a few months after the RTI Act. This protects members of the OMP but also officers, servants and consultants of the OMP from RTI scrutiny in respect of ‘matters communicated to them in confidence’. Civil society organisations have expressed concerns regarding the vagueness of the term ‘in confidence’ which could mean each and every possible communication.

More recently, we have the Audit Bill which gives a similar privilege to members of the proposed Audit Service Commission and also ‘any person appointed to any office under this Act or any other person assisting any such person for the purpose of carrying out the provisions under this Act or a qualified auditor engaged by the Auditor General’.

All these persons are required to refuse RTI disclosure in respect of ‘any information’ received in the performance of duties until the report or statement prepared by the Auditor General relating to such information has been presented in Parliament. The only exception is where there is a request of Parliament or an order of court or to give effect to the provisions of any written law, other than ‘any law requiring the disclosure of information’. Disobedience is an offence. Why then, is the Government back-pedalling on the Citizen’s Right to Information?

Any sensible reader of these clauses will see the obvious ‘potshots’ aimed at the RTI law which the Government professes to be proud of. Certainly, the fact that the long delayed Audit Bill is finally before the House is a matter for relief. Amended and diluted and recast several times over, the Bill was once again put off on Friday by Parliament for another date. The objective of the legislation is to comprehensively deal with the national auditing process whereby insider trading, financial mismanagement and corrupt activities are effectively curtailed. But if that is the aim, then it begs the question as to whether giving such broad privileges against RTI to such wide categories of persons defeats that very purpose for which the Audit Act is being introduced. Legitimate restrictions may be imposed on premature release of audit reports pending before Parliament even within the scope of an information right balancing the public interest. But giving blanket protections to a few privileged offices is contrary to the fundamental principles of RTI.

The fact that the Supreme Court had dismissed a constitutional challenge to the Audit Bill is beside the point. The Court only went into the merits of its constitutionality, not its good governance score sheet. The clauses shutting out RTI relates to a policy decision taken by the Government which is a distinct matter from a constitutional test. At a time where the Parliamentary process itself has been riddled with irregularities, these proposed clauses that prevent disclosure until ‘presentation in Parliament’ point to clear and present dangers. They must be narrowed and be more precisely defined to avoid a situation where the Audit Act may lead to the proposed remedy being worse than the disease.

At this week’s global conference on the first year of the RTI law in Sri Lanka, there were the usual bouquets and the brickbats. Foreign delegates had a glimpse of the RTI Commission at work. Some were aghast at its informality despite the fact that lawyers have started appearing before it. Yet, the Commission is doing its work splendidly, delivering on the intentions of the law to the ordinary men and women of this country in search of otherwise elusive official information.

A Government official announced that the Media Ministry which is the designated Ministry to drive the law was in consultation with the Education Ministry to introduce RTI to the school curriculum. While one arm of the State is moving progressively, the other arm is moving regressively, typical of the present Administration.

In general, it is a bad practice to enact new laws which shut out RTI in respect of privileged offices or individuals. That trend must cease if the Government is keen to retain its pride in bringing RTI to ordinary Sri Lankans. Openness and transparency were promised. Openness and transparency were provided by the RTI Act in 2016. Openness and transparency were applauded. Now, that too may only turn out to be a hollow boast, like many of its other unfulfilled promises.