Ceylon Daily News: Srilanka: Tuesday, June 21, 2016.
The Right to
Information (RTI) Act currently being debated in the Parliament and scheduled
to be taken up for voting on June 23, 2016 is long overdue. It has been in the
making for the past 15 years. It is heartening to note that the remit of the
Act is broad in so far as to include Non-Governmental Organisations (NGOs), in
addition to all layers of the government; national, provincial, and local.
Genesis of
the Right to Information (RTI) Act
The Asian
financial crisis of the late 1990s led to the enactment of the Right to
Information law and Fiscal Responsibility law in many Asian emerging market
economies in order to tame (what Adam Smith called) the “animal spirits” of the
newly industrialising countries such as Indonesia, Malaysia, Thailand, et al.
The Right to Information (RTI) or the Freedom of Information (FOI) laws are a
natural outgrowth of the Consumer Protection/Rights laws in many countries
throughout the world.
There is
significant evidence to show that the Asian financial crisis during the late
1990s was to a considerable extent caused by a lack of information, on the
financial markets in particular, in most countries affected by the economic
crisis.
In Sri Lanka
too, the second wave of major economic liberalisation undertaken since 1990,
especially the partial privatisation of state-owned enterprises such as the Sri
Lanka Telecom, Srilankan Airlines and the Ceylon Gas Company during the second
half of the 1990s, led to allegations of under-valuation of assets owned by the
state-owned enterprises, and massive corruption in the process of
privatisation. Moreover, for the first time since independence, the Sri Lankan
economy experienced negative growth in 2001 (-1.5% percent), primarily due to
fiscal profligacy of the then government (partly necessitated by the heightened
civil war since the fall of the Elephant Pass in April 2000).
As a result
of the alleged massive corruption and negative economic growth, during the
campaign for the parliamentary elections in late 2001, the proposals for Fiscal
Responsibility law and the Right to Information law was mooted by the then
opposition party (UNP), which was elected to office in December 2001. The same
party is in power today. The UNP government enacted the Fiscal (Management)
Responsibility Act (F(M)RA) in 2003. The very first draft of the RTI law was
drafted by the government in 2003, but that government lost power at the April
2004 elections before the RTI bill could be presented to Parliament.
Two
fundamental flaws in the proposed RTI Act
1. Lack of
penalties for non-compliance
Like most
laws with good intentions in Sri Lanka, the F(M)RA has not been fully
implemented to date. For example, the F(M)RA stipulated that the government
should reduce the budget deficit to 5 percent of the GDP by 2006, which has not
been achieved by the previous UPFA governments (2004 -2014) as well as the
present UNF government to date. Moreover, there is no indication or commitment
by the present government that the set target will be achieved in the
foreseeable future.
Even worse is
the fact that the Official Languages Act (OLA) of 1987 is not fully implemented
to date (even after 30 years in operation) due to lack of political will, and
apathy and lack of commitment by the public administrative personnel.
Similarly,
the then government enacted the Consumer Affairs Authority (CAA) Act in 2003
with very little impact (if at all) in the protection of consumers to date.
The main
reason for the non-implementation of the Official Languages Act of 1987 and the
Fiscal (Management) Responsibility Act of 2003 is the lack of penalties imposed
for non-compliance. Although the CAA Act of 2003 empowers the authority to
impose monetary fines it has had very little impact on the realisation of
consumer rights because monetary fines are too small to be deterrent. The
proposed RTI Bill also commits the same mistake as the OLA and F(M)RA by not
empowering the RTI Commission to impose penalties for non-compliance. However,
there is provision in the proposed RTI bill for the RTI Commission to file suit
in a court of law (Magistrate’s Court) against any personnel who does not
comply with the law and the court could impose a monetary fine and/or
imprisonment. Given the snail’s pace in which the judicial system works in Sri
Lanka the proposed penalties through a court of law is not to be effective in
the implementation of the RTI Act. Therefore, there is a danger that the
proposed RTI law could turn out to be an ineffective law as the OLA and the
F(M)RA are.
Justice
delayed is justice denied is the dictum often mentioned in legal parlance.
Therefore, the proposed penalties in the RTI Bill should be swift if it is
going to have any real impact on the governance of this country. In India the
RTI Commission is empowered to impose penalties without taking recourse to a
court of law. If the Department of Customs, Inland Revenue Department, Labour
Commissioner, and the Consumer Affairs Authority could impose penalties, why
not the RTI Commission?
2.
Exemption of economic information
The Clause 5
of the RTI Act specifies the exemptions to the Right to Information. These
pertain to the invasion of privacy of any individual, national security,
information that are “seriously prejudicial” to Sri Lanka’s international
relations, information that could cause “serious prejudice” to the economy,
protection of intellectual property, personal medical record, etc. While the
majority of the foregoing exemptions are valid, this author has serious
reservations about few exemptions pertaining to the economy of the country.
(PART II, Clause 5, sub-section (1)-(5), pages 2-5)
Subject to
the provisions of subsection (2) a request under this Act for access to
information shall be refused, where: “...(c) the disclosure of such information
would cause serious prejudice to the economy of Sri Lanka by disclosing
prematurely decisions to change or continue government economic or financial
policies relating to:- (i) exchange rates or the control of overseas exchange
transactions; (ii) the regulation of banking or credit; (iii) taxation; (iv)
the stability, control, and adjustment of prices of goods and services, rents
and other costs and rates of wages, salaries and other income; or (v) the
entering into of overseas trade agreement;… (PART II, Clause 5, sub-section (1)
(c) (i), (ii), (iii), (iv)& (v), pages 2-3)
While this
author accepts that the PREMATURE (emphasis of this author) disclosure of
information regarding administrative price, exchange rate, or interest rate
adjustments/changes could potentially cause turbulence in the markets (by way
of hoarding for example) and thereby may negatively impact the economy, we
cannot understand how the disclosure of information on banking regulation,
taxation, and overseas trade agreements “would cause serious prejudice to the
economy of Sri Lanka”. The term “premature” is very ambiguous and subjective
that could be deployed arbitrarily to suppress vital economic and financial
information and data from the public, which would stifle whistleblowing on the
economy and thereby could be detrimental to the well-being of the people of the
country.
The
aforementioned exemptions could be used to deny access to information that
could potentially prevent economic downturn or collapse. One of the reasons
cited for the Asian financial crisis of the late 1990s was the non-disclosure
of relevant information and data on the financial sector of the economy by many
Asian governments.
Coverage
of the Non-Governmental Organisations (NGOs)
The proposed
RTI Act in Sri Lanka includes the NGOs under its purview by correctly
recognising that NGOs are funded by public money (domestic and/or foreign) and
therefore are “public authorities”. (PART VII, Clause 43, sub-section (i), page
28-29) However, there is ambiguity here because it covers only the
“non-governmental organisations that are substantially funded…” (PART VII,
Clause 43, sub-section (i), page 29), where what is “substantial” is not
defined. Further ambiguity is where the Act states “…in so far as the
information sought relates to the service that is rendered to the public.”
(PART VII, Clause 43, sub-section (i), page 29); whereas what constitutes
“service that is rendered to the public” is unspecified and therefore open for
misinterpretation and abuse by unscrupulous NGOs and Attorneys-at-Law; both of
which are in abundance in Sri Lanka.
Furthermore,
the threshold for a “project” is specified in the proposed Act as United States
dollars one million (Rs.150 million) for a foreign-funded project and Rs.
500,000 for a locally-funded project. (PART III, Clause 9, sub-section (3)
(a)&(b), page 8) The threshold for the foreign-funded project is too high
which would not cover many projects undertaken by the NGOs. Therefore, this
author would recommend decreasing the threshold for foreign-funded projects to
United States Dollars 100,000 (Rs.15 million).
The preamble
to the RTI Bill should be proactively asserting the Right to Information of the
citizens as opposed to the reactive nature of the preamble as it is at present
where it is claimed that “...there exists a need to foster a culture of
transparency and accountability in public authorities… and thereby promote a
society in which the people of Sri Lanka would be able to more fully
participate in public life through combating corruption and promoting
accountability and good governance.”
Thus, the
preamble to the Bill reads;
‘WHEREAS the
Constitution guarantees the right of access to information in Article 14A
thereof and there exists a need to foster a culture of transparency and accountability
in public authorities by giving effect to the right of access to information
and thereby promote a society in which the people of Sri Lanka would be able to
more fully participate in public life through combating corruption and
promoting accountability and good governance. (Page 1).’
The citizens
are the sovereigns of the state of the Democratic Socialist (sic) Republic of
Sri Lanka and the Executive, Legislature, and the Judiciary of the state are
mere custodians of the sovereign citizens. Therefore, it is an inalienable
right of the people to demand access to (or freedom of) information from pubic
authorities who are funded or paid for by the tax money collected from the
citizens. It is the prerogative of the sovereign citizens to demand
accountability and transparency from the custodians of the state, viz. the
Executive, Legislature, Judiciary, and the public authorities (who are funded
directly or indirectly by domestic or foreign public money). At the same time,
it is incumbent on the Executive, Legislature, Judiciary, and the public
authorities to be proactively accountable and transparent (proactive
disclosure) to the citizens of the country with, without, or in spite of the
RTI Act.
Conflation
of freedom of the media and freedom of information
There appears
to be a conflation of freedom of the media and freedom of information of the
citizens of the country in the de-facto RTI Act. This conflation is reflected
in the bestowment of the responsibility for the implementation of the
provisions of the RTI Act to the Ministry of Mass Media as follows:
‘It shall be
the responsibility of the Ministry of the Minister assigned the subject of mass
media to ensure the effective implementation of the provisions of this Act.
(Clause 2, page 1).’
It would be
far more effective to assign the responsibility for the implementation of the
provisions of the RTI Bill to the highest echelons of the government, viz. the
Executive (Prime Minister or the President).
RTI as an
overriding law
Although the
Clause overriding any existing law in conflict or inconsistent with the RTI Act
is welcome, the following such Clause does not insulate or safeguard the RTI
Act from any overriding law that could be enacted in the future, which is a
serious loophole in the Act currently debated in Parliament. Therefore, we
would recommend safeguarding the RTI Act from any future overriding law by
amending the following Clause to incorporate all future laws (in addition to
existing laws).
The
provisions of this Act shall have effect notwithstanding anything to the contrary
in any other written law and accordingly in the event of any inconsistency or
conflict between the provisions of this Act and such other written law, the
provisions of this Act shall prevail. (Clause 4, page 2)
Preservation
of records
In the following
Clause, “reasonable time” and “subject to the availability of resources” are
loopholes for non-compliance indefinitely:
‘…every
public authority shall endeavour to preserve all its records in electronic
format within a reasonable time, subject to the availability of resources.
(Clause 7, sub-section (4), page 6).’
It is
important to be assertive and plug the loopholes for the law to be effectively
functional.
Composition
of the RTI Commission
The Right to
Information Commission is proposed to consist of five persons appointed by the
President on the recommendation of the Constitutional Council, incorporating at
least one representative from the Bar Association, media and publishing
industry, and “other civil society organizations”. (PART IV, Clause 12,
sub-section (1) (a), (b) & (c), page 9).
‘We would
like to propose that the membership of the RTI Commission be expanded to
incorporate up to 10 members to be broad based in terms of professional/subject
expertise such as to draw members from the banking & finance, construction,
economic, environmental, legal, medical, and social services professions.
One of the
criteria specified for the Constitutional Council for recommending a person to
the RTI Commission is that the recommended person is “not carrying on any
business or pursuing any profession.” (Clause 12, sub-section (2) (a) (v), page
10) The foregoing stipulation is contradictory to the stipulation that at least
one representative should be from the Bar Association, media and publishing
industry, and “other civil society organisations” as noted above. Therefore,
this ambiguity should be cleared.
Conclusion
We understand
that there is a RTI Task Force comprising of representatives from the civil
society advising the Ministry of Mass Media and canvassing for the enactment of
the RTI Act. We also learn that there are four representatives from just one
civil society organisation, which we feel is unwarranted. Instead, we would
like to urge the RTI Task Force to be inclusive and broad based in order to tap
the expertise of different professions in addition to the legal and media
professions.
Moreover, the
RTI Act should be incorporated into the curriculum of the training programmes
for the public administrative officials: national, provincial, and local.
While this
author agrees that the rite of passage of the Right to Information Act is long
overdue, it is equally (if not more) important to rectify the weaknesses
highlighted in this review of the Act in order to be truly empowering of the
sovereign citizens.
The enactment
of the RTI Act should not be merely to win international trade concessions
alone. We take this opportunity to also urge the government to strengthen the
Official Languages Act, Fiscal (Management) Responsibility Act, and the
Consumer Affairs Authority Act, by incorporating exemplary hefty penalties
including imprisonment for non-compliance, in line with the final version of
the RTI Act. It is better late than never!
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