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 fifteen years. It is heartening to note that the remit of the Act is broad in so far as to include the Non-Governmental Organisations (NGOs) as well, in addition to all layers of the government: national, provincial, and local.
Genesis of the 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 etc. The Right to Information (RTI) or the Freedom of Information (FOI) laws are 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 the 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, Sri Lankan Airlines and the Ceylon Gas Company during the second half of the 1990s, led to allegations of under-valuation of assets owned by the sate-owned enterprises and massive corruption in the process of such 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 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 as well. 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 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 thirty 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 (Responsibility) Management 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 going 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. The exemption of economic information is a serious flaw
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 whistle blowing on the economy and thereby could be detrimental to the well-being of the people of the country. For example, the foregoing exemption could be used or abused to hide insider trading in government securities and sovereign bonds, inter alia; serious allegations about such insider trading are in the open since at least early-2015.
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.
The Supreme Court of India held in December 2015 that, “The Reserve Bank of India (RBI) and commercial banks cannot hide routine information, such as the names of top defaulters, the losses suffered by banks and details of action taken against erring banks, sought by the public under the Right to Information Act, the Supreme Court ruled....”
“The RBI does not place itself in a fiduciary relationship with the financial institutions, because, the reports of inspections, statements of bank and information related to business obtained by the RBI are not under pretext of confidence or trust, it said. The central bank is supposed to uphold public interest and not the interest of individual banks, the court said. The RBI has no legal duty to maximize the benefit of any public sector or private sector bank, and thus there is no relationship of “trust” between them, it said.” (ibid)
“The RBI has a statutory duty to uphold the interest of the public at large, the depositors, the country’s economy and the banking sector. Thus, the RBI ought to act with transparency and not hide information that might embarrass individual banks, the court said. The idea that revealing such information with the public will harm public interest was absurd, it said. “This attitude of the RBI will only attract more suspicion and disbelief in them. RBI as a regulatory authority should work to make the banks accountable to their actions.” (ibid)
Coverage of Non-Governmental Organisations
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 lawthat could be enacted in the future, which is a serious loophole in the Act currentlydebated 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 as well (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 ten members in order 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 thatat least one representative should be from the Bar Association, media and publishing industry, and “other civil society organizations” as noted above. Therefore, this ambiguity should be cleared.
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 (from EU, USA, et al) 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!
(Muttukrishna Sarvananthan (Ph.D. Wales, M.Sc. Bristol, M.Sc. Salford, and B.A. (Hons) Delhi) is a Development Economist by profession and the Founder and Principal Researcher of the Point Pedro Institute of Development (http://pointpedro.org), Point Pedro, Northern Province, Sri Lanka. He was an Endeavour Research Fellow at the Monash University, Melbourne (2011 - 2012) and a Fulbright Visiting Research Scholar at the Elliott School of International Affairs, George Washington University, Washington D.C. (2008 - 2009) who can be contacted on firstname.lastname@example.org)