Financial Express : Bangladesh: Monday,
September 05, 2016.
The Sri
Lankan Parliament certified on August 04, 2016 that the Right to Information
(RTI) bill had been "duly passed" on June 24 last and henceforth the bill became a law. Unlike
other countries which follow the Westminster form of government, a Bill duly
enacted by Sri Lanka's Parliament does not have to go to the Head of the State
for his/her assent, to become law. A certification on the Bill appended by the
Speaker of Parliament under Article 79 of the Sri Lankan Constitution is enough to make it a law. The President's certification is required
only when a Bill adopted by Parliament has also received people's approval
through a referendum.
The delay in
Sri Lanka adopting the RTI procedure was partly due to the turmoil in the
country over political and ethnic issues. It is good that self-confidence has
now returned to the nation. This latest step also means that except for
Afghanistan, Maldives and Bhutan, the rest of South Asia is now covered by the
RTI process.
Some of the
salient features of Sri Lanka's RTI Act and its envisaged phased implementation
dynamics are: (a) Sri Lanka's RTI Act provides its citizens the fundamental
right to information from government and public authorities as guaranteed under
Article 14A of their Constitution. The legislation seeks to foster a culture of
transparency and accountability in public authorities, promote people's full
participation in public life and good governance to combat corruption; (b) the
Act envisages the immediate appointment of information officers and designated
appeals officers under Section 23; (c) the RTI Commission can now initiate
steps to make Rules relating to the implementation of the Act under Section 42;
(d) the Sinhala text of the Act will prevail over the Tamil version in the
event of inconsistency of interpretation under Section 44 and (e) all
provisions of the Act will become operational within a minimum of six months
and a maximum of one year from the date of the Speaker's certification, i.e.,
after February 03, 2017 but not later than
August 03, 2017.
As in Bangladesh
and India, all citizens of Sri Lanka will have the right to ask and get
information under the RTI Act. According to Section 4, the Sri Lankan Act will
override all other written laws to the extent of inconsistency. Such a practice
will be like the provisions included in Section 3 of our own RTI Act.
However, in a
slight departure from the general norm, in Sri Lanka, according to Section 43,
both incorporated bodies (such as companies, trusts and NGOs) and
unincorporated bodies (body of individuals not registered or recognized as a
legal entity under any law) will have the right to seek and receive information
under this law, provided 3/4ths of the members of such bodies are citizens of
Sri Lanka. Foreigners and bodies that are primarily comprised of members who
are not Sri Lanka citizens will not be able to use the law to seek information
from public authorities.
As in the
case of Bangladesh, the definition of "information" under the Sri
Lankan RTI Act includes according to Section 43, any material that is recorded
in any form such as records, documents, emails, opinions, advice, log books,
contracts, reports, samples, models, draft laws, plans, maps, drawings, film,
photograph, audio and visual recordings and all machine readable records. An applicant can get information in
electronic form such as diskettes, floppies, tapes, video cassettes or computer
printouts.
The Sri
Lankan RTI dynamics will be monitored closely by analysts because of its very
ambitious and wide-ranging horizon - considerably wider than India or
Bangladesh. There will be considerable interest to ascertain whether all
institutions included under the term- "public authority" perform as
they are expected to under this Act or will seek exemptions. It will indeed be
a very tough task.
It may be
mentioned here that the term "public authority" in Sri Lanka will
include the offices of the President and the Prime Minister, all ministries and
government departments, Parliament and all local authorities such as Pradeshiya
Sabhas and Provincial Councils, the Supreme Court and all other courts,
tribunals and institutions created and established for the administration of
justice, the defence forces and intelligence agencies, all public corporations
and companies in which the State or a public corporation hold 25 per cent of
the shares (jointly or severally) or otherwise have a controlling interest, all
private entities or organisations carrying out a statutory service, public
service or function under a contract or agreement or license from the
government or its agencies or local bodies,
NGOs funded by government or any department or other authority
established or created by a Provincial Council, NGOs serving the public that
are substantially funded by a foreign government or international organisation
but only to the extent of such service rendered to the public, all higher educational institutions including
private universities and professional institutions that are established,
recognised or licensed under any written law or wholly or partly funded by the
State or a public corporation or any statutory body created by a statue of a
Provincial Council and all private educational institutions including those who
offer vocational or technical education that are established, recognised or
licensed under any written law or wholly or partly funded by the State or a
public corporation or any statutory body created by a statue of a Provincial
Council.
Another
significant step taken under the Sri Lankan Act is the expected practice with
regard to an institution's duty towards proactive disclosure of information
under Sections 8 and 9. This stresses that every Minister is required to
provide information to the people in general and particularly to those who are
likely to be affected by any project (valued at more than US$ 100,000), at
least three months prior to its start date. In the case of urgent projects,
information may be supplied one week prior to their start date. Subsequently,
the Minister is required to provide updated information about the project to
citizens who formally apply for such information. Such a provision would have
definitely been helpful in Nepal as well as in Bangladesh.
The Sri
Lankan Act, however, appears to have created restrictions of sorts by
emphasising in Section 24 that reasons need not be given for seeking
information, unless it is an urgent information request made to safeguard the
life or liberty of a person. Such a situation might be misused by Information
Officers (IOs) through the exercise of their discretionary powers.
Section 29 of
the Sri Lankan Act has also correctly taken account of information pertaining
to a third party. If information sought relates to a third party or has been
supplied by such a third party treating such information as confidential, then
that party must be consulted before the IO makes a decision on the request.
Third-party information will, however, have to be disclosed if the RTI
Commission directs disclosure in the larger public interest.
As in the
case of Section 7 of the Bangladesh RTI Act, 2009, there are 20 grounds of
exemptions to disclosure in Section 5 of the Sri Lanka Act. Most of them are
similar except for specific reference to
disclosing professional communication between the Attorney General or
his/her assisting officers and any other public authority in the performance of
his/her duties and also any disclosure
that would harm the integrity of an examination process.
Interestingly,
a caveat has been included in Sri Lanka - almost all exemptions will apply
eternally except those which relate to the government's financial and economic
policies. Exempt information relating to such policies may be disclosed after
10 years. Information relating to inconclusive trade negotiations will,
however, not be disclosed even after 10 years. However, almost all exemptions
(save the inconclusive international trade negotiations) will be subject to a
public interest override. If the benefits of disclosure outweigh the harm then
such exempt information may be disclosed. An IO may, in this regard, seek the
advice of the Sri Lanka RTI Commission about the applicability of an exemption
to the information requested. The RTI Commission is required to tender its
advice within 14 calendar days.
The Sri Lanka
Act has enunciated a three-tiered appeals mechanism for citizens to seek
redress of their grievances when they are faced with refusal by an IO to
receive their request or there is rejection of their request for information or
if the supply of information is incomplete and misleading or if the IO does not
adhere to timelines for disposing an information request, or there is refusal
by an IO to provide access to information in the form requested originally, or
if the requestor has reason to believe that the information he/she sought has
been destroyed in order to prevent access.
The 1st level
of appeal is internal and directed to the public authority which holds the
information sought and the designated appeals officer (AO) is required to
decide the appeal within weeks of its receipt under Section 31. The 2nd level
of appeal lies with the RTI Commission. An aggrieved citizen may appeal a
decision of the AO before the RTI Commission within two months. In the
proceeding before the Commission, according to Section 32, the burden of
proving that it acted in compliance with the provisions of the RTI Act is on the
public authority against which the appeal is entertained. At both these levels,
according to Section 33, an appeal may be filed by the authorised
representative of the aggrieved requestor. The 3rd level of appeal lies with
the Court of Appeal within one month of the date of the RTI Commission's
decision. This three-tier approach might be slightly time consuming but, if
implemented correctly, could be effective.
The Sri Lanka
RTI Commission under Section 38 of the Act, has been given the power of
ensuring possible disciplinary action against errant officers when they
contravene the provisions of the RTI Act. This is a good measure. The
provisions of Section 39 will also add hopefully towards making the process
more effective in Sri Lanka. This includes the possibility of being held liable
for monetary fine of up to SL Rupees 50,000 or a jail term of up to two years
or both if that person is found to have deliberately obstructed the supply of
information or to have intentionally provided incorrect, incomplete or
inaccurate information, or to have destroyed (during the pendency of any
proceeding under the Act), altered or concealed information in that person's
custody.
(The writer,
a former Ambassador and Chief Information Commissioner, is an analyst specialised
in foreign affairs and good governance. muhammadzamir0@gmail.com)
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