Himal Interviews: Sri Lanka’s right to information
By The Editors
24 September 2018
Interview with senior lawyer and a member of Sri Lanka’s RTI Commission, Kishali Pinto-Jayawardena.
Right to Information (RTI) laws, which seek to promote accountability by enabling individuals to obtain information from public bodies, have become an important political and legal part of democratic movements in Southasia. Over the past two decades, almost every country in the region has instituted such laws, with Sri Lanka enacting it most recently, in 2016. However, even as the country’s RTI Act has been widely praised and is considered among the most far-reaching in the world, there are concerns that it is not yet embedded in the country’s democratic process.
In this interview, we spoke to 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. She explains to us the roots of Sri Lanka’s RTI movement, how it compares to similar laws in Southasia 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 Southasia to have a right to information law. But the then-president dissolved the 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. I strongly felt – and still do – that the RTI Act of Sri Lanka should really extend to far more than the citizens of the country. But that was a position not reflected in the final document. 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: If the movement was led in part by the media, how successfully and seriously have they used RTI as part of their journalism?
KPJ: If you’re looking at the use of the RTI Act by journalists across the board as a part of their work, it is less than it ought to. But some senior journalists have used it effectively in their journalistic work. One good example is Tharindu Jayawardena of the Lankadeepa who filed an RTI request to the commissioner general of rehabilitation asking for information on rehabilitated LTTE cadres. Another example was Feizal Samath of the Business Times who went to the Bureau of Foreign Employment and asked for information on bilateral agreements with host countries relating to migrant workers. Namini Wijedasa of the Sunday Times is another journalist who uses RTI effectively on a variety of issues. From the North, we have Dileepamuthan of Uthayan who has filed several RTI appeals before the Commission. But all this is different from journalists using the law in a widespread, vibrant, enthusiastic and proactive way.
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 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? He wanted to know the process that had led to this.
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 very susceptible to political change: the moment public authorities feel a lack of political will in implementing the RTI, they will either stop giving information or block it at every point possible. In India, every time there was an attempt to change the RTI Act, it was prevented by a strong civic movement. Recently, when they tried to bring down the salaries of RTI commissioners in India, everybody from activist Aruna Roy to groups all over the country swung into action, and there was strong pressure put on Narendra Modi’s government to withdraw that decision. In Sri Lanka, you won’t have that sort of pressure, because RTI has yet to become part of a broader democratic, civic culture.
HSA: How do you compare Sri Lanka’s RTI Act to similar legislations in Southasia?
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 Southasia, 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 Southasia 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 Southasian 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, out 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 up to now. 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.
There are two reasons for these successes. One is that the commission’s directions or orders are legally reasoned so it is quite difficult to appeal against them in the Court of Appeal. It’s not like a one-paragraph administrative order saying you have to release the information. The second reason is that there’s a process of explaining to public authorities why they should be giving the information. They’re not made to feel as if it is a law against them. Also, we have tried to be as fair as possible in every instance. So, it is not always a blanket release of information, but a balance between upholding the right and the grounds to decline giving information is carefully considered.
HSA: As the RTI came as part of the reforms by the new government, do you think it was linked to transitional justice and human rights?
KPJ: It was thought very early on that the transitional-justice process as well as the constitutional reform process will come across very serious roadblocks sooner or later and that RTI should not be a casualty of that. So it was always strategized differently and cautiously. RTI went under the radar, and that was good.
HSA: Do you see the Sri Lankan government going after the RTI like governments in other parts of Southasia 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 very problematic because it will be a very 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 citizenships 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 will start using it in the way they have. It is unlikely that 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.