Saturday, March 04, 2017

Right To Information: How Sri Lanka Trumped India‎‎: Sri Lanka: Saturday, March 04, 2017.
The introduction of the Right to Information Act is considered a transformation of the character of Sri Lanka’s government. It was a ritual of small talk to comment on one’s recent encounter with a government servant and to follow it with the phrase the Kafkaesque – an allusion to the impenetrable, sadistic bureaucracy found in the works of the Czech-born German writer, Franz Kafka. Seemingly, with the new Act, we have a fresh-faced government, perhaps with the excessive congeniality of the rehabilitated convict. Will it continue to behave? Here we shall look at India, where the public glare on its own RTI Act has had time to relax.
In Kafka’s world, in Kafka’s jurisdiction with its architectures of veto and its monomaniacal cretins, the emperor relents on his deathbed. The dying whisper, entrusted to the messenger kneeling by and double-checked for its accurate retention, is a personal message that the emperor has issued, an iota of power separated from his sovereign integrity. It’s directed, along a fortuitous line of consecutive gaps created in the maze of the citadel’s ramparts, which is already tensing close after the death of the emperor. And this message is carried, especially and exclusively, to “his solitary wretch of a subject, the minute shadow that has fled from the imperial sun into the furthermost distance…”
Meanwhile, on February 3 this year, in the Democratic Socialist Republic of Sri Lanka, a law known informally as the Right to Information Act, or referred with even more nonchalance in some milieus of NGO know-how and civil-activist been-there as the RTI, groaned into life. Press conferences and seminars and panel discussions and government training programmes celebrated its birth. News headlines and feature articles and infographics foretold its promise. The only enemy action it suffered was while it gestated in the turbidity of parliament, and it came from Wimal Weerawansa who saw the creature upside-down and mistook it for a monstrosity intent on punishing the media for disclosure of information. The primary condition it was placed with by the Joint Opposition, whose leader, Dinesh Gunawardena, was committed to thwarting the passage of the same Bill in 2012, was not to pass it as an Urgent Bill – a call for enhanced transparency in the parliamentary process. There was no counter-mobilisation opposed to the Right to Information in principle. This Act supersedes all others to the contrary. It provides protection to whistle-blowers within Public Authorities who enable the citizen’s Right to Information (Section 40).
As Sabrina Esufally of Verité Research notes*, “the technical expertise of CSO [Civil Society Organisation] actors involved in the Drafting Committee and the RTI Advisory Taskforce ensured that the progressive elements of the Bill, such as the public interest override clause, were retained during the drafting process” – rendering the legal filters to RTI applications fine and negotiable, provided the disclosure of information serves the greater good.
The emperor did not send his assassins after the newborn messiah. Officially, Sri Lanka has snapped out of the Kafkaesque.
Testing the limbs and the volition of the RTI, Transparency International Sri Lanka (TISL) filed six applications under the law:
  •  to the Land Reform Commission, asking for the total number of acres under its ambit and a list of their titles;
  •  to the President and the Prime Minister, asking for a declaration of their assets;
  •  to the Commission to Investigate Allegations of Bribery and Corruption (CIABOC), asking for the total number of cases investigated by its own initiative and convictions obtained (the law empowers the Commission to investigate proactively, without complaints);
  •  to the Employees’ Trust Fund, requesting information on the process by which they decide whom to invest with public moneys;
  •  to the Sri Lanka Customs, asking for the regulations with which they impose duties and confiscate goods
“The information officer at the customs,” said Sankhitha Gunaratne, Manager of Right to Information at TISL, “said that you have no personal interest. You need to give reasons why you want information.” This is despite RTI Activist, Nalaka Gunawardena noting that, “it is quite progressive of the law not to require why the information is required.” (Gunawardena was speaking at a panel discussion organised by Verité Research on February 27, at the Lakshman Kadirgamar Institute.)
And the President’s office? Its response, according to TISL’s Gunaratne, is “that they have misplaced the original copy of the application.” The other applications have not met with any response at the end of the 14 working days stipulated by the Act. Perhaps it is too early to measure the impact of the RTI on Sri Lanka. The Emperor must need time to curb his wants to the democratic ethos. Perhaps the current situation of India, where a Right to Information Act has had 12 years to unfurl itself, is a projection of Sri Lanka’s immediate future.
RTI: The Indian Experience
According to Venkatesh Nayak, Coordinator of the Access to Information Programme at the Commonwealth Human Rights Initiative, “The Indian RTI movement began as a grassroots movement out of the frustration of the people over why programmes like the food for work programme was not working well.”
The National Food for Work Programme was initiated by the Central Government of India in November 2014. Abiding by the national principle that every citizen has a right to work, the Programme’s intention was to provide food to the unemployed rural citizens in exchange for manual labour. Between the two ends of this simple contract, however, was the uncoordinated sprawl of India’s bureaucracy, the misalignments between its central government and its federal states, as well as a lot of plain stealing. Still starving citizens demanding answers from the government joined a movement that had been travelling in the direction of a Right to Information Act since the end of the 1980s. The Mazdoor Kisan Shakti Sangathan (MKSS) was founded in 1987 by Aruna Roy, Nikhil Dey, and Shankar Singh, the trio of civil agitators who have since become recognised as the leaders of the Indian RTI movement, in order to find justice for the people of Rajasthan who were underpaid by government development projects.
The MKSS began simply, by asking for the records of workers and their pay-sheets from their superiors. It was here that they encountered the Official Secrets Act of India. It hadn’t occurred to the citizens that beyond the sloth and sabotage was an actual law that guaranteed state corruption.
Then began the conversion of a crude clamour into slogans – “Our money, our account”, “the right to know, the right to live” and the like – and then slogans into sit-ins, and then marches into the recognition of Right to Information as a constituent of the fundamental right to freedom of expression. The law was passed in 2005 and is ranked by the Centre for Law and Democracy as the fifth best in the world – in the same index where Sri Lanka has recently been ranked third best.
How Sri Lanka’s RTI Act Ranks Higher Than That Of India
“Strict timelines,” said Venkatesh Nayak, “is where Sri Lanka’s RTI is superior to India.” Sri Lanka’s Act stipulates an Information Officer to respond within 14 working days [Section 25(1)], whereas the Indian Act only uses the words “as expeditiously as possible and in any case within thirty days of the receipt of the request” [Section 7(1))]. Tight timelines, explained Nayak, can make the difference between life or death.
“For an example,” he said, “take the case of the Sri Lankan nationals sentenced to death for the attempted assassination of Rajiv Gandhi. One of them made an RTI application on why their mercy pleas have been rejected. The Supreme Court held that the delay in deciding the mercy pleas as an unreasonable delay. As a result, the death sentence was commuted to life imprisonment.” This overall increase in efficiency of due process can be noted as one of the major collateral gains that the RTI Act can accrue even in Sri Lanka. The community of cases which benefited from the above mentioned decision of the Indian Court has now set a precedent for the manner in which mercy pleas are disposed, and have upheld a convict’s right to know why his plea was rejected. It is important to note that both the Sri Lankan Act [Section 25(3)] and the Indian Act [Section 7(1)] stipulate that in the event the request for information “concerns the life and personal liberty of the citizen making such request”, the response to it shall be made within 48 hours of receipt of the request.
Nayak said that the specific detailing of an Information Officer’s duties is another instance where the Sri Lankan Act is an improvement upon the Indian Act. “The Sri Lankan Act says that it’s a priority of the Information Officer to answer RTI applications. It also says that if the information requested is in several places, it is the duty of the Officer to transfer the request to such places, and to collate that information. Of course, this is within limits of reasonability.” In this latter case, however, Section 25(5)(b) of the Sri Lankan Act allows for the time period of 14 days to be extended for “a further period of not more than twenty one days.”
In practice, so far, these advantages may yet be barred to the public. From the experience shared by Ranga Kalansooriya, the recently appointed Director General of Government Information, the apparatus instituted by the Right to Information Act is still floundering into its routines. Answering questions at the panel discussion organised by Verité Research, Kalansooriya said that, “in these three major institutions – Police, schools, and hospitals – the information may be difficult to locate. The information requested could be in several different departments.” When questioned whether the Information Officers are duty bound by the Act to transfer RTI applications to relevant departments in cases where the requested information is not centrally stored, Kalansooriya said that there is still confusion as to the prerogative each officer has in divulging information to the Information Officer. Perhaps here we should hope that the proliferation of data on the internet and the echoing of speeches about the RTI would not desensitise the Sri Lankan bureaucrat to his or her duties, but that it would rather act as a hypnotic override upon South Asian Low Expectations.
Lessons From India
“The RTI movement can be traced back to the French Revolution,” said Nayak. “People wanted to know why they had to pay tax, and what it was used for. Even now, at grassroots level, RTI is used for poverty alleviation. But I do not see RTI used at the level of government policy. For example, it is not common to see RTI used to find reasons as to why budget allocations were reduced for subjects like health and education.” Nayak spoke of his experience using the RTI to challenge the Bill to amend the Land Acquisition Act of India (its full title is ‘the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013’). The original Act was passed in 2013 by the government led by Manmohan Singh and his party, the Indian National Congress; the Amendment Bill was proposed in 2014 by the new government led by Narendra Modi and his Bharatiya Janata Party. “The Prime Minister,” explained Nayak, “said that an economic survey showed that development projects have stalled because of the Land Acquisition Act. An RTI was filed asking for the total number of development projects that India has undertaken, and for the percentage of projects that were stalled because of the Land Acquisition Act. The data we received showed that only eight percent of the total number of projects were stalled by the Act.” This revelation, Nayak said, proved how weak a justification the Amendment Bill had behind it. As a consequence, the Amendment Bill has not yet received the approval of India’s Upper House, the Rajya Sabha (although the Bill has been adopted by the Lower House, the Lok Sabha, in 2015).
“It’s important to learn the domain language,” said Nayak. “When we received the data from the RTI request, it came in the form a lot of files. In one table, there was a column under a curious abbreviation. This is where we learnt the percentage of cases [affected by the existing Land Acquisition Act]. An RTI expert should not just be able to access data… He must also make collaborative partnerships with experts who can decipher the data.”
Such a unity of actors is what Sri Lanka may be seeing in the allied activism of organisations such as Transparency International and journalists and civil society members who have been closely prompting the parliament through the past year, expediting the passage of the Act. In the final analysis, no democratic nation may be in a situation where a single disgruntled citizen could make an entire government answerable.
As important as having RTI, emphasised Nayak, is knowing how to make use of it. “Don’t make queries,” he said, “ask for documents. After you make an RTI request, publish scanned copies of the application with the results. We may have limited purpose for it. But others may have greater use.”
Behind Footsteps Of India
Whatever its shortcomings compared to the Sri Lankan Act, India has had time to test its lengths and to probe its possibilities. Despite information relating to commercial confidence being among the exclusions contained in Section 8 of the Indian Act, the Central Information Commission of India had issued a directive on the Reserve Bank of India to disclose identities of its major defaulters. The Commission held that “merely because disclosure of such information may adversely affect public confidence in defaulting institutions, it cannot be a reason for denial of information under the RTI Act. If there are certain irregularities in the working and functioning of such banks and institutions, the citizens certainly have a right to know about the same.”
In a regressive turn, the an Amendment Bill was introduced in 2013 to the Lok Sabha to exclude the six major national political parties that it originally encompassed. This push-and-pull could be the wrestle between a culture of acquiescence and the empowered citizen that Sri Lanka could expect to see in the coming years. Eventually, the social contract could be as open to equitable renegotiation in the East as well as the West. The idea, as Nayak notes, “to think propaganda is adequate in place of information,” may overturn. At an even later age, perhaps, the imaginary lines dividing human nature into Cold War Blocs would blur.
Despite appearances, the RTI Act and its progressive precedent isn’t merely the work of NGOs revolving around the President and Prime Minister in a privileged orbit. Sri Lanka has had a movement behind its RTI Act, staggering and leaping. In 2005 the Galle Face Green Case (Environmental Foundation Ltd. V. Urban Development Authority of Sri Lanka et al) recognised the Right to Information as a necessary limb of the exercise of the citizen’s Freedom of Expression. Progress is real.
…in Kafka’s world, with Kafka’s physical experience of untraceable itches and inexpiable guilt, the emperor’s subject awaits his message. The messenger, “a strong, and indefatigable man”, shoots through the many shells that have encrusted the empire, “if he meets with resistance he points to his breast, which bears the sign of the sun… if he could reach open country how fast he would fly… but instead of that, how vain are his efforts, he is still only forcing his way through the chambers of the innermost palace…and even if he succeeded in that, nothing would be gained – the royal capital still lie before him, the centre of the world, piled high with all its dregs. No one can force his way through here – but you sit at your window and dream up that message when evening falls.”
Perhaps all it takes to make progress is to clean our imagination of the clutter inherited from our parents’ bad thought-habits.
The Colombo Telegraph alleges that Transparency International Sri Lanka (TISL) has addressed the applications for declarations of assets of the President and the Prime Minister to the wrong Public Authority. The article goes on to allege that the Prime Minister’s office has refused the RTI applications on the basis of a ruling made by the Speaker of Parliament, and then compounds that with the allegation that the Speaker hadn’t intended it so. The bottom-line reads, “even after almost one month has passed since the RTI Act was operationalised on February 3rd 2027 (sic), the TISL has not conformed to the RTI Act. It is yet to appoint an information officer under the Act.”
Responding to these allegations, Sankhitha Gunaratne told Roar that the applications were duly made under the Right to Information Act. “According to the assets declaration Law,” she said, “the records of the assets and liabilities of the cabinet Ministers are made to the President. That is under Section 4(a) of the Law. Technically the President’s Office has the records. Even if they are not kept there, the Prime Minister himself will have a copy of his own declaration of assets. He will have no problem to declare it. This allegation that we have filed applications at the wrong public office is incorrect.”
Speaking of the statement by the Speaker of Parliament to which the Colombo Telegraph makes reference, Gunaratne said that the response did not cite any reasons contained within the Right to Information Act. “Anyway,” she said, “the RTI prevails over all other rulings or laws. It will prevail over any ruling by the Speaker.”
Gunaratne maintains that even in the event the applications were filed at the wrong Public Authority, the regulations attendant to the RTI Act directs the relevant Information Officer to transfer the application to the Public Authority that holds the information. ‘I can give you the regulation,” said Gunaratne, “regulation Number 4(6) states that if the request relates to information which the Information Officer is aware is held by another Public Authority, the Information Officer shall duly in written format transfer the request to the concerned Public Authority and inform the citizen making the request accordingly.” It should be noted that the said regulation stipulates that the Information Officer has to comply with the above and inform the requestor “within 7 days from the date of receipt of the request.”
Regarding the final accusation that TISL has not complied with the RTI Act, Gunaratne stated, “we have duly appointed an Information Officer even though we have not updated that on the website. His name is Mr. Keerthi Jayatilleke. Even yesterday trade unionists came to TISL to make RTI applications, and we duly received them.”