Sri Lanka’s right to information : Kishali Pinto-Jayawardena

Sunday Observer: Sri Lanka: Sunday, September 30, 2018.

Kishali Pinto-Jayawardena, a member of Sri Lanka’s RTI Commission and a senior lawyer who has been part of the country’s RTI movement since its inception explains the roots of Sri Lanka’s RTI movement, how it compares to similar laws in South Asia in theory and in practice, and why it remains to be a part of the country’s democratic discourse.

Himal Southasian: Could you give us an overview of how the RTI entered Sri Lankan civic and political discourse?

Kishali Pinto-Jayawardena: Sri Lanka’s RTI movement came from a civil-liberties discourse that took place among a fairly small number of journalists, academics and legal activists, unlike in India, where it grew from a grassroots campaign. There was strong impetus from the fact that the media had, about a decade and a half ago, focused on the right to information as a plank of general media-law reform. So it was perceived to be a part of a media-rights discourse and not a democratic tool, certainly not the kind used in anti-hunger or anti-poverty movements like in India. However, since the movement was led by a group of people who very consciously kept themselves apart from the political dynamics of the day, they were not amenable to political pressure.

The first draft of an access to Information Bill was approved by the Cabinet in 2004, following which it was tabled in Parliament. If the Bill had been enacted then, Sri Lanka would have been the first country in South Asia to have a right to information law. But the then President dissolved Parliament before the Bill could be debated. So the entire movement died a natural death at that point. After that you had an entire decade of anti-democratic period under Mahinda Rajapaksa and attempts to bring the law forward were completely jeopardised.

In 2015, however, because RTI was a major plank of the new government’s reform plan, it was brought back into public conversation again. The committee that revised the earlier draft – and I served on both committees – was able to insist on a fairly high standard of rights protection of the RTI law at various levels. So, the right to information draft that was then brought forward into Parliament contained most of what the drafters wanted.

One issue of departure, however, was that the RTI Act limits itself to citizens of Sri Lanka, which was a matter of some debate. Other than that, if you look at the nature of the bodies it covers – from the office of the President to private bodies to non-governmental organisations substantially funded by government, foreign governments or international organisations, universities and technical institutions – the spread of the law is quite wide. It is far more than any other law in the Subcontinent. The Act also covers security and intelligence bodies unlike other regional RTI laws.

HSA: Is RTI, however, seeping to the capillaries and becoming part of the civic culture at local levels of the government?

KPJ: Some of that has actually happened. In the first few months after the law was enacted, the people who were using it were not from the media but ordinary citizens. Our second appeal at the Commission was by a man from the deep south of the country, in Matara, who was objecting to an unauthorised structure on one of the main roads in the south. He wrote to the Road Development Authority (RDA), which did not do anything about the structure for a year. He then wrote to them soon after the RTI Act was enacted, and within a week of this, the RDA came and removed the structure. He then filed an appeal to the Commission asking for reasons why the RDA had removed the structure: why is it that after waiting one long year and letting the structure be on that pavement, it gets removed all of a sudden with the filing of the RTI application?

But RTI still remains to be a part of the democratic discourse. Discussions now are getting a little bit closer towards that; you have a lot of people talking about this as a democratic tool. But, there needs to be a stronger movement around it. Otherwise, it is susceptible to political change: the moment public authorities feel a lack of political will in implementing the RTI, they would either stop giving information or block it at every point possible.

HSA: How do you compare Sri Lanka’s RTI Act to similar legislations in South Asia?

KPJ: According to the Centre for Law and Democracy – which brings out the Global Right to Information Rating – Sri Lanka’s RTI has been rated first in South Asia, and third in the world. This is because, in theory, it doesn’t have exemptions for civil and defence bodies and the authorities included go quite high. Unlike in India, Sri Lankan RTI covers NGOs funded by foreign governments as well as local governments, which Nepal’s RTI also does.

If you look at the structure of Sri Lanka’s RTI Act, the burden of justifying its actions is often put on the public authority and not the citizen. One good example is the appointment of information officers. A big problem around South Asia is that public authorities often do not appoint an information officer. So a citizen doesn’t know where to go to get relevant information. In Sri Lanka, if a public authority does not appoint an information officer, the head of the authority automatically becomes the information officer.

Another way in which the Sri Lankan RTI differs from its South Asian counterparts is in the formation of the RTI Commission. It is not based purely on governmental or presidential appointment, but gives several groups, like the Editors’ Guild, the Bar Association and civil-society groups, the power to make nominations. This is a very strong protective element in the Act.

HSA: What is your assessment of the country’s RTI Act in practice?

KPJ: As a rights practitioner, I must say – and only half-jokingly – that after years of seeing the law being misused in a way that is contrary to the public interest, my cynicism has suffered a setback because of the RTI processes I have seen, sitting on the Commission. The amount of people that come before the Commission thanking the law for giving them relief, as there is no one else to turn to, is quite astonishing. As of August 2018, there were 850 or so appeals filed before the Commission, of which we have given final or interim orders on 650 – more than two-thirds of the total amount of appeals. The information released includes: the reasons why the Telecommunications Regulatory Commission blocked certain websites, processes of procurements and awarding of tenders, details relating to expenses incurred as a result of the overseas trips of politicians, salaries and other benefits of top executives in state institutions, agreements between Sri Lanka and other countries relating to migrant workers, Commissions of Inquiry reports that had not been tabled in Parliament, among others.

So far, there has been no defiance of the Commission’s orders. An interesting detail is that many of the people using the Act are public servants themselves, who use it to get information on their dismissal or suspension.

HSA: Do you see the Sri Lankan government going after the RTI like governments in other parts of South Asia have?

KPJ: We have seen some worrying incidents. There was an instance where a journalist from a prominent northern paper came before the Commission. He wanted information on the number of hotels and shops being run by the army in the

North and East and the sexual abuse allegations against members of the military deployed as peacekeepers overseas. He told the Commission that the army had maintained an intelligence report on him, because he was filing an RTI application on them. The army said, the report existed prior to him filing it. We have warned all public authorities, including the army, that journalists who use RTI cannot be harassed. That said, there are certain officers within the military establishment and the public sector who are supportive of RTI, because they realise the value of it.

Information officers being targeted is another troubling development. Even though they give out information in accordance with the RTI Act and are protected in law by the Act, the law and the practice are different things. A subordinate who gives out information under the RTI Act can be harassed by his or her superior, ostensibly not because he or she gave the information but for some other reason. This is problematic because it would be a strong deterrent to information officers acting independently under that Act as envisaged.

HSA: What are the limitations of the current RTI Act?

KPJ: In theory, the Act’s only significant limitation is the issue of citizenship. However, the Commission has taken a strong position in its orders that the public authorities cannot ask RTI applicants to give proof of their citizenship when they file information requests, unless there are circumstances and context which makes them doubt the applicant’s citizenship. But, that doubt must be established objectively when the matter comes before the Commission. Public authorities cannot always ask for proof of citizenship as a matter of course.

Also, there have been instances where whole communities have been penalised for filing RTI applications. And again, the government bodies do not ostensibly do it by saying, “You’re filing RTI.” What they say is, “Well if you continue being troublesome, we will not give you your benefits.” So these are all troubling developments which the Commission will be addressing in the future. Where the Government itself was concerned, I don’t think they ever thought that people would start using it in the way they have. It is unlikely the RTI will be repealed if the government changes; a new government will not do that, as it will not be something the people will like or applaud. What they will do is chip away at it covertly. If you get a different government and a nomination process that is not independent, then you will have the RTI Act being subverted and a commission which will not take a stand against that.

Unless you have strong civil-society groups mobilising around the applicants and their communities, like what India has, you will find them being isolated. And then, they will stop filing. The law will just become an idealistic document, the same as many of the other good laws in Sri Lanka which are not truly implemented.

[This is a broad excerpt of an interview published in the current issue of HIMAL SOUTHASIAN South Asia’s first and only regional news and analysis magazine]