Sri Lanka joins the right to information club

Dhaka,  Mon,  21 August 2017
Published : 04 Sep 2016, 22:39:49 | Updated : 04 Sep 2016, 23:13:41
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Sri Lanka joins the right to information club

Muhammad Zamir
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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