The Sunday Times: Sri Lanka: Sunday, August 14, 2016.
The raucous
commotion in Parliament this week with the passing of the Office of Missing
Persons Bill without a vote is reflective of our utterly degenerate political
culture. Even now, there is no clear idea of the numbers mustered on the floor
to ensure the passage of this enormously significant legislation.
No
politician can profess innocence
Sri Lanka’s
disappeared number in their thousands. These unfortunates are not confined to
one ethnicity. Indeed, the fate of the ‘missing’ is the most powerful common
factor uniting the Sinhalese, Tamil and Muslims down the ages. Many years ago,
before unscrupulous politicians co-opted the Mothers Front of the South and the
North, this was the one civil rights mass movement which had the potential to
force the political command to come to a reckoning as to what happened to their
sons and daughters.
So let us be
quite clear on this. No political leader in this country, President or Prime
Minister can wash his or her hands, Pontius Pilate fashion, and proclaim ‘I am
innocent of that blood.’
Consequently
this was a Bill that demanded the most rigorous solemnity and scrutiny. It
called for a collectively profound moment of mea culpa. Instead, we had ugly
political point scoring by the Rajapaksa-led Joint Opposition and a Bill rushed
through by the Government in an unfortunately indecent hurry.
A legal
issue of concern
In the
parliamentary melee, some amendments were passed to the OMP Bill on the floor
of the House though there is little certainty as to their precise content.
Reportedly, the changes include amendments to Clause 11, Clause 12 (f) and
Clause 21 of the Bill.
These
amendments relate respectively to the OMP’s entering into agreements with any
person or organization, the prescribing of parliament approved guidelines on
visits to places of detention as well as advance notifications therein to the
Inspector General of Police as well as a stipulation that funds raised by the
OMP must be channeled through the External Resources Department.
But a major
legal issue remains if the OMP Bill’s exclusion of the Right to Information
Act, No 12 of 2016 (the RTI Act) has passed through Parliament without
amendment. As observed in these column spaces previously, clause 15 of the Bill
had stated that the RTI Act will not apply in regard to matters communicated to
every member servant, officer and consultant of the OMP ‘in confidence.’
Differences
between the laws
Recent
arguments advanced by government advocates to justify this exclusion have been
spurious at best. One particular defence was that certain laws such as the
Monetary Law already provide an exception to RTI and that therefore this clause
in the OMP Bill is nothing to be perturbed about.
But there are
fundamental problems with this argument. The Monetary Law predates and
therefore, as a matter of broad principle, has to yield to the RTI Act. This is
very clear in terms of Section 4 of the RTI Act which states that the RTI law
shall prevail in the event of any inconsistency between that law and ‘such
other written law.’ Essentially, the only exclusions in respect of all past
laws without exception are the specific and limited exceptions contained in the
RTI Act itself.
Granted, at
certain points, exceptions detailed in the Monetary Law may overlap with the
RTI exceptions such as in relation to requests for the premature release of
information pertaining to exchange rates or the regulation of banking or
credit. But that is quite a different matter from arguing that the Monetary Law
itself prescribes an exception to RTI. This is simply incorrect in terms of the
law.
Lacunae in
not defining ‘in confidence’
In any event,
unlike the Monetary Law, the OMP Bill comes after the RTI Act. Therefore
Section 4 of the RTI Act conferring a primary status on that law as against
other ‘written law’ does not apply. In consequence therefore, the information
shut out by the OMP Bill is not governed by the limited exceptions of the RTI
Act. Nor is it subject to the overriding principle of disclosure in the public
interest under Section 5(4) of the RTI Act.
The main
reason for Section 5(4) was Sri Lanka’s outdated colonial official secrecy laws
which were unacceptably vague in their definitions of what precisely
constitutes an ‘official secret.’ That same vagueness characterizes the
applicable provisions of the OMP Bill where the RTI Act is shut out. The RTI
does not apply where information is received ‘in confidence.’ Yet nowhere is
the term ‘in confidence’ duly explained or interpreted in the Bill despite the
fact that this term occurs at several points elsewhere as well. Most
particularly, in Clause 12(c)(v), a variant of this same term applies in
relation to a vital investigative power vested in the OMP; namely its authority
to ‘establish a process to accept information on the condition of confidentiality.’
As a result,
there is a disturbingly open ended discretion given to the Office of the OMP,
its members and so on to categorise virtually any information received by
it/them as ‘information received in confidence’ or information accepted on the
basis of ‘confidentiality.’ One can only hope that the committee stage
amendments addressed this lacuna.
Need for
more certainty
In principle,
the singular importance of protecting the confidentiality of persons who give
information re the ‘missing’ is self evident. However the question is whether
specifying a statutory exclusionary clause with undefined terms is the best way
to go about ensuring this?
The problem
is not merely that the OMP Bill comes so soon after the RTI Act and (literally)
where the ink has scarcely dried on the law itself. That contradiction by
itself is incongruous enough.
And once,
(even with the most laudable of intentions), a statutory exclusion is applied
regarding RTI, there is nothing to stop future laws or amendments to enacted
laws providing even more unacceptable exclusions. For instance, an argument may
exist that an equally persuasive rationale exists for an RTI exclusion
regarding the Assistance to and Protection of Victims of Crime and Witnesses
Act, No. 4 of 2015.
Certainly if
this exclusionary clause has been retained through the rowdy passage of the OMP
Bill in the House, it is unfortunate. If the RTI Act is not to lose its
essential value, this is a slippery precedent that must be speedily discarded.
.JPG)
.JPG)
