Sunday Times Sri Lanka: Sri Lanka:
Sunday, April 09, 2017.
A common view
held by many across the Commonwealth that Sri Lanka holds out a beacon of hope
to the world in reversing the tide of authoritarianism underscores darker and
more complex realities.
Even in those
early days when elation prevailed after the surprise election defeat of former
President Mahinda Rajapaksa in 2015, many of us instinctively knew that this
was just the beginning of a long, hard road towards reversing systemic Rule of
Law failures, much of which had predated Rajapaksa rule (2005-end 2014).
Journalists
being briefed on the Right to Information Act
Two years
later, the formidable challenges before us are very clear. During the previous
decade, the abuse of power had been unprecedented, even when assessed against
the country’s turbulent post-independence history after British colonial
fetters were shaken off in 1948. Ordinary law and order had deteriorated to
abysmal depths. State, economic and military powers were concentrated in the
office of the Executive President. Corruption on the part of a ruling family
cabal was rampant and ugly. Shaky at its best, the scales of the State tilted
dangerously towards raw, naked authoritarianism. Editors and journalists were
assassinated, beaten up and threatened. A decades-long secessionist war fought
by the LTTE in the Northern peninsula was brought to a bloody end in 2009 but
even after, terror continued to stalk the land.
Yet the stage
for this departure from the democratic path had been set quite a while ago.
Prolonged ethnic conflict and more sporadic but equally violent clashes between
the majority Sinhalese government and rebellious Sinhalese youth in the South
had paved the way for emergency law to become the norm. Checks and balances
once holding arbitrary executive discretion in check became weaker. Under the
Kumaratunga Presidency, a Supreme Court headed by her handpicked Chief Justice
in 1999 became politicised with severe adverse impact on a once revered
institution. Attacks on critical journalists waxed and waned with criminal defamation
law being used to stifle dissenters until a vigorous media-led campaign
resulted in its repeal.
So to many,
the excesses of the Rajapaksa Presidency was a natural – and logical –
culmination of what had preceded. Regardless, a restive if not angry populace
was ripe for change when, following a surprise announcement of a premature
Presidential election, Rajapaksa’s onetime Health Minister Maithripala Sirisena
deserted his party leader and contested the elections with the support of Ranil
Wickremesinghe, leader of the (then) opposition United National Party (UNP)
after months of covert planning. It was an explosive electoral challenge in the
best traditions of excitable party politics, catching the imagination and hope
of Sri Lankan citizens who voted for the imprudent challenger. But the 2015
reformist agenda of the Sirisena-Wickremesinghe coalition is now facing grave
internal subversion by forces that were very much part of the earlier
anti-democratic establishment.
Great
expectations; the Government’s reform agenda
One major
thrust of reform concerned the restoration of the Rule of Law including the
independence of the judiciary, the enactment of a Right to Information law and
a Contempt of Court Act, the broad-basing of state-owned media among a host of
other pending media law reforms. The other equally imperative focus was on
state accountability for war time abuses premised on a consensus resolution on
Sri Lanka adopted at the United Nations Human Rights Council.
However,
progress has been faltering. Indeed, in some respects, there is regression. For
example, the Government promised to repeal or reform the Prevention of
Terrorism Act (PTA) under which journalists and activists had been routinely
imprisoned. But now, a draft Counter-Terror Act (CTA), conceived in secret and
running to more than fifty pages, has far more terrifying potential to restrict
civil liberties than the PTA.
Where
accountability is concerned, little of significance has happened apart from an
Office of Missing Persons which remains yet inactivated. Similar dysfunction
affects a Victim and Witness Protection Authority. In addition, hawkish
elements within the Government are denying the right of immediate legal counsel
to a suspect upon being arrested. Cases relating to the killings and beatings
of journalists are yet pending.
Emblematic
cases of gross human rights abuses against Tamil civilians under the previous
regime suffer a similar fate. Absent sufficient pressure from civil society,
the members of which have now been co-opted in great part into ad hoc task
forces, punishing perpetrators through a radically reformed criminal justice
system has been replaced by a spluttering Colombo-centered transitional justice
process. This has been an early victim of the huge gap between what the
Government promised and what it can actually deliver. Ambitious constitutional
reform plans are similarly bedevilled. Corruption investigations into the
near-bankrupting of the state coffers by the Rajapaksas have also stalled.
Emboldened, the former President’s supporters have become increasingly more
vociferous.
Encouraging
use of RTI across the country
The one
exception to this sad litany of non-performance is that on June 23, 2016,
Parliament unanimously passed the Right to Information (RTI) Act. This was a
result of persistent advocacy for over one and a half decades by editors,
lawyers, media activists and civil society activists. A key pivot thereto was
the 1998 Colombo Declaration on Media Freedom and Social Responsibility, which
focused on RTI as a legislative imperative. Earlier, a Prime Ministerial
committee had drafted the 2004 Freedom of Information (FOI) Bill which was
approved by the Cabinet. However the premature dissolution of Parliament
resulted in the 2004 Bill being discarded. Some unsuccessful revivals were
attempted in later years, one such effort being notably by the present Speaker
of Parliament Karu Jayasuriya then an opposition parliamentarian. But the Bill
was re-activated as a template only in 2015 with the change of regime.
Following sleepless days of hectic drafting and after public consultations, the
revised version now named the Right to Information (RTI) Bill was approved by
the Cabinet.
The Bill
passed the test of legal challenge before the Supreme Court subject to certain
modifications. To the surprise of those anticipating vigorous opposition on the
floor of the House, it was passed with nary an opposing vote. As a member of
both drafting committees in 2004 and 2015/2016, this was a rare day of
rejoicing for me. Some months ago, a constitutional amendment had also
enshrined the right of access to information. RTI was therefore backed by two
supports; one, constitutional and the other statutory. That said, the fact that
the constitutional restrictions (drafted differently to the statutory process)
were somewhat broader in scope did give rise to unease. Nonetheless, there was
much to be pleased about.
Since the Act
and its Regulations with the Rules of the Commission on Fees and Appeals were
operationalised on February 3, Sri Lanka has been ranked globally as having the
third best RTI regime. No state agency is exempted from its reach unlike other
information laws in the region. For the past two months, the use of RTI has
been quite diverse and vigorous. This is a positive factor even though I cannot
comment on specific cases.
Will RTI be
an exception to a discouraging pattern of practically ineffectual good laws in
Sri Lanka? Will it radically transform the culture of secrecy that holds the
political and public service establishment in an iron grip? Answering these
questions require prophetic ability. But unlike other laws which depend on
dysfunctional state institutions, RTI can be directly used by citizens to
provoke, needle and demand accountability from government and non-government
entities. Early signs of its enthusiastic use are encouraging.
Conclusion
Ambitious
reform plans of Sri Lanka’s coalition leadership have been slowly collapsing
into disarray. True, citizens now live free from the threat of enforced
disappearances and blatant misuse of power. Moreover, there is freedom of
public debate which was once a luxury. Nonetheless, as has been repeatedly
emphasised in my weekly column to the Sunday Times, Colombo, the coalition
Government’s incessant refrain that ‘things are not bad as they once were’, is
no answer. Setting the bar of comparison based on the previous regime is akin
to no standard at all.
And freedom
of expression is of limited use when structures of state power remain
impervious. In addition, increased criticism appears to be having a bitter
impact. The Government has vowed to bring in a regulatory framework for print,
electronic and online media. While media professionalism has deteriorated
badly, mostly due to journalists being bludgeoned literally and metaphorically
in the past, government regulation is unquestionably not the solution to that
problem. Cloaked in the deceptively misleading language of ‘independent
regulation’ such innocuous experiments are often twisted to political
advantage.
Some in the
Government have asserted that RTI is a quid pro quo; in other words, as RTI has
been ‘given’ to the media, it should ‘submit’ to the proposed regulatory
scheme. This argument suffers from a fundamental misconception. RTI is not a
privilege to be bestowed at the magnanimity of politicians. Rather it is a
people’s right (not limited to the media). Any suggestion of a quid pro quo is
unfortunate.
In 2015,
democratic change-makers were ordinary citizens from far flung corners of the
land who reacted with powerful anger against state-sponsored racism, chauvinism
and corruption. But this critical constituency of reform is being eroded day by
day. That is regrettable for Sri Lanka’s people, for the Government which once
promised much and most profoundly, for those working for genuine systemic
change.
(The
writer serves as a Commissioner on Sri Lanka’s RTI Commission as the nominee of
the organisations of editors and publishers. The views expressed are strictly
in her personal capacity. This is an edited excerpt of a paper discussed at
conference sessions on ‘The Commonwealth and Challenges to Media Freedom’
hosted by the Institute of Commonwealth Studies (ICwS), April 4th 2017.)