Roar.lk: 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.”