Times Sri Lanka: Sri Lanka: Sunday,
June 26, 2016.
This Friday
as Sri Lanka’s Parliament unanimously approved the 2016 RTI Bill amidst the
mumbling discontents of its gloomy detractors in the House, sceptics raised a
rare and hearty cheer.
Born out of a
tortuous process ranging back over two decades and frustrated by political
hostility on several occasions, it was difficult to believe that this country
had at last passed an information law which, though not perfect as such laws
rarely are, eminently sufficed for the purpose.
A powerful
tool to demand answers
The primary
importance of Sri Lanka’s RTI law, once in force, will be its raw power in the
hands of ordinary citizens to demand answers from politicians and public
servants. Fashioning RTI into a powerful tool can transform Sri Lanka, far more
than goose-stepping commissions, committee or task forces can ever hope to achieve.
It can also
have immediate direct impact on peoples’ rights as opposed to convoluted
constitutional provisions which depend on enlightened and liberal judicial
interpretation, a quality that Sri Lanka has sorely been lacking in recent
decades.
The core of RTI lies in the embracing of the
law as their own by Sinhalese, Tamil and Muslim citizens whether in demanding
information regarding to moneys spent in building a culvert by a local
authority or in demanding information in regard to the ‘disappeared.’
The use of
RTI against ‘black money’ rackets
This is how
it has been worked in India which is perhaps the most eloquent example in the
region. The RTI impact on ‘black money’ rackets driven by politicians and
profiting businessmen has been startling. Just a few months ago, massive
evasion of tax and money-laundering was exposed through an RTI application
filed before the Department of Income Tax by a retired Indian inland revenue
service official where income from undisclosed sources was shown as
agricultural income despite the level of production remaining the same.
This
irrational boost during 2010-2011 in agricultural income as declared by some
assesses coincided with the period during which government-initiated enquiries
regarding black money in foreign accounts. The RTI disclosures have led to the
Government pledging to hold an inquiry.
Further RTI
requests have led to refusal by the Department on the basis that the applicant
has not disclosed sufficient public interest compelling such disclosures
between the Department and tax-paying citizens held in a fiduciary
relationship. In response to this denial, a public interest petition has been
filed in the High Court with the High Court calling for a reply from the
Government. This is RTI activism in full swing.
Judicial
interventions into financial scandals
In any event,
the Indian courts have been successfully utilised to raise public awareness on
gross financial scandals. Spurred by disclosures in the media, a wealth of
information on money laundering rackets of Indians with massive unaccounted
‘black money’ accounts in foreign banks has come into the public domain. In
2011, the Indian Supreme Court issued an order on a public interest petition
filed by senior lawyer and politician Ram Jethmalani directing the disclosure
of names of Indian account holders in a Liechtenstein bank. The judges
reprimanded the Government for its lack of interest in probing money laundering
schemes and ordered the setting up of a multi-disciplinary team to investigate
the alleged crimes. The Government’s appeal that a double taxation avoidance
treaty between India and Germany prohibited revealing names of the account
holders was dismissed.
At the centre
of this scandal is a stud farm owner and scrap dealer Hasan Ali Khan who was
estimated to have stashed away millions in foreign banks. Despite the Court’s
2011 authoritative order, the information on foreign bank account holders has
been slow in coming. The Court warned consequently that this lack of action
could amount to contempt of court. The investigation team headed by a retired
justice began inquiring into the case. But there are undertones familiar to Sri
Lanka as continuing lack of official vigor in pursuing the matter led to harsh
criticism.
Writing to
the Sunday Guardian on 23rd September 2015, Jethmalani subjected the Government
to a scathing attack, pointing to the fact that ‘instead of implementing the
order, it is focusing on how to get it reviewed, recalled or diluted.’ This
year, Jethmalani engaged in another tactic familiar to Sri Lankans; he apologised
to the Indian public for once supporting Prime Minister Narendra Modi. Indian
authorities have admitted that Khan owes the Income Tax Department the largest
recovery amount in Indian tax history amidst fears that this may not be
recoverable. Year by year, the amount owing by Khan to the Department has been
whittled down with Khan spending only a brief stint in jail.
Correcting
outrageous political betrayals
These are
lessons that we should learn from India and elsewhere. Indeed, Sri Lanka
gingerly steps into an ‘RTI-era’ long after it actually should have claimed
such a law as its own. The 2004 Cabinet approved RTI Bill was defeated by the
political pusillanimity of the Kumaratunga Presidency which dissolved
Parliament while the Bill was about to be presented and by the chicanery of the
Rajapaksa Presidency which outrageously declared that it was the source of all
information.
Save for
these unforgivable political betrayals, the RTI law would have been in Sri
Lanka’s statute books during the past decade at least.
Even now and
exuberance over the passing of the Bill nonetheless, the real difficulties lie
ahead. RTI must be evidenced through vigorous activism in Sri Lankan villages
and far flung outposts of the country, not limited to ‘information seminars’
and ‘talk shops’ in Colombo like many other such exercises. It must not be
allowed to languish like information laws in Nepal and the Maldives.
Using the
RTI differently
Our past
experiences have not been encouraging in that regard. We have a plethora of
laws which are excellent in theory but lamentably deficient in practice. The
1994 Convention Against Torture (CAT) Act is a prime example of this failure.
In some respects, its legal thrust is even better than the United Nations
Convention against Torture itself. Yet its implementation is dismal, due to
deliberate obstruction and lack of political will by state actors including the
Department of the Attorney General.
The challenge before us is to prove the RTI as
the extraordinary exception to this disheartening rule.