The Right to Information Act No. 12 of 2016 of Sri Lanka

The fight for responsible accountability, good governance which is against corruption can only be strengthened if the information held by responsible authorities is more readily available. The result of relaxing the obstructing tight mechanisms that prevent the access of information would create a more transparent system of administration.

It is remarkable and broadly accepted by legal academics that the true essence of democracy can be achieved by the declaration of “Right to Information” to the public. The scrutiny of such is notably to maintain a more democratic system in the country whilst entertaining the true spirit of transparency.

Sri-Lanka, having face a 30 year conflict of war and a rather traumatic era left the purported ‘right to information’ under the Constitution of Sri Lanka (Article 14A of the Constitution of Sri Lanka 1978), restricted to an article engraved in the Constitution until 2016. One may argue that the Constitution prevails over any other legal document. In a practical approach, however, the right will remain to be a grey area as the abovementioned article would entail an exhaustive list of laws relating to same. The absence of a legally binding document guaranteeing the right to information would leave a lacuna in the context of justice. Therefore, the enforceability of the right guaranteed by the Constitution will only be effective in reference to an act pertaining to “Right to Information”. This principle was established in the case of Giustiniani v. Y.P.F. S.A., a case decided in the territory of Argentina, in which the court ruled in favor of the plaintiff and further urged the public company Yacimientos Petroliferos Fiscales to produce a copy of the investment agreement related to the exploitation of hydrocarbon /oil resources.

The country although having other commitments to look into due to the war, yet functioned in ways and means to give effect to the United Nations proposed Resolution 59 (1) in the year 1946. This resolution was further taken up for discussion in the year 1995 by the UN Commission. Therein, it was stated that “Freedom will be bereft of all effectiveness if the people have no access to information. Access to information is basic to the democratic way of life. The tendency to withhold information from the people at large is therefore to be strongly checked.”[1] To give effect to the abovementioned resolution, Sri Lanka attempted to formulate a concrete ground for RTI in mid 1990’s (Legislative Draftsman’s Department, LDO Number 23/2003) which however, failed to conclude positively.

Furthermore, this principle was also encrypted under Article 19 of the International Covenant on Civil and Political Rights and Article 19 of the Universal Declaration of Human Rights which recognizes the right and access to information where Sri Lanka is a party to, with the placement of signature on the treaty.

On realizing the importance of such a right in existence, Sri Lanka, a country that looks over the democratic system, began the process of documenting the fundamental right. After several attempts of passing draft Right to Information Bills over the years, in August 2016, the Bill of Right to Information (“RTI Bill”) was passed with the view to provide a more centralized transparent system of governance. The RTI Bill was brought to the attention of the Parliament in the midst of March 2016. The sole purpose of promoting the Bill, as stated in the preamble of the RTI Bill, was to structure “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”[2]. The recognition of the absence of the right was further highlighted with the inception process for the 19th Amendment to the Constitution as a fundamental right. Supporting the views enacting the RTI, the Center of Law and Democracy assessed the RTI to be the 7th strongest in the world.

The prime need for the establishment of this fundamental piece of legislation was opined by Chief Justice Sarath N Silva whilst deciding the case of Environmental Foundation Limited v Urban Development Authority of Sri Lanka and others (Galle Face Green Case)[3]. He stated that “a bare denial of access to official information as contained in P10, sent by the UDA, in my view amounts to the infringement of the Petitioner’s fundamental rights as guaranteed by Article 14 (1) (a) of the constitution…the implicit right of a person to secure relevant information from a public authority in respect of a matter that should be in the public domain”.

However, the urge for the Right Information dates back to 1984 which was derived from the case of Visuvalingam v. Liyanage where it was held that the need for easy access to information was needed to be reckoned as the right to information from many sources was possible[4]. Therefore, it was prominently noted that the documentation of the right through an Act was essential to make the system of justice more approachable.

The RTI Act provides an absolute right and gives effect to the constitutional right of every citizen to access information under Section 3 of the RTI Act. Nevertheless, the granting of the right was on the other hand, followed with limitations. These limitations are in the form of a comprehensive list as stated under Section 5 of the RTI Act.

The limitations stipulated in the RTI Act include that the denial to access information may arise the personal information in concern has no public activity or interest. Disclosure of information is a threat to national security. Disclosure of such information could harm the economy of the country. Denial of information related to trade secrets or intellectual property. Providing medical records unless consented and permitted to by the person in question. Communication trails between a professional and public authority unless consented to i.e. communication between the attorney general and public authority. Existence of a fiduciary relationship. Information which may obstruct the detection of a crime. Exposure of identity of a confidential source may be revealed. Third party does not consent to the disclosure of the information. Contempt of court. Infringement of parliament privilege. Harm integrity of an examination being conducted by the Department of Examination.

Furthermore, in the process of debating the RTI Bill in Parliament, concerns and proposed changes in order to protect the confidentiality of sensitive information relating to Section 5 of the Act on ‘Denial of Information’ were raised. Accordingly, when the Parliament certified the RTI Bill, Section 5 of the Act was further expanded giving effect to Section 5 (m) whereby ‘if information is a cabinet memorandum in relation to which a decision has not been taken’ the request may be refused. Further, Section 5 (n) where ‘the information requested to be disclosed is with regard to an election conducted by the Commissioner of Elections’, which is required by the relevant election laws to be kept confidential. This was formally engraved in the Act as a stance for the public authorities to deny disclosure of information.

Moreover, many concerned parties raised their nonconforming views indicating that some of these exceptions stated under Section 5 were conflicting with the articles in the Constitution of Sri Lanka. One example of a recent dissimilarity raised to concern was the exemption stated under Section 5 in relation to denial of disclosure of information as it would harm the economy. The denial of information related to trade agreements as stated under Section 5 (v) was noted to be a clause conflicting with Article 14, 14A and 15 of the Constitution.

Dr. A.G. Damayanthi Perera, a Specialist in Food, Nutrition, an Independent Researcher, along with two other Software Engineers, raised the issue relating to the conflict of Section 5(v) by filing a petition in the Supreme Court of Sri Lanka. The Petition stated that, a developing country like Sri Lanka will find it difficult to tackle the challenging concepts in the corporate arena when dealing with overseas companies.

The exceptions to the fundamental rule of the right to information was also opined by Lord Toulson’s in the case of Kennedy v Charity Commission, in which he stated that “Judicial processes should be open to public scrutiny, unless and to the extent, that there are good reasons for secrecy”.[5] Thus, despite the right of information being a fundamental right, the times at which the denial to access of information is validly construed yet exist in the legal sense.

It is nonetheless important to note that the above limitations could be avoided where the request of information is very much urgent and as per severe circumstances surrounding the necessity of such information. This is engraved under Section 6 of the RTI Act. Additionally, if the disclosure of information is denied by the public authorities, the aggrieved party is within the capacity of making an appeal to the “Right to Information Commission”- a body corporate with perpetual succession which will be established in the conformity of Part IV of the RTI Act.

Above all, these flaws are contained within the proposed validity of the right to information. It is important to note the very exceptional advantages. The recently passed RTI Act will be a monitor for showcasing the reality, whilst making the latent motives of a government accessible to the public to some extent.

Many professionals in the arena of law supported the RTI Bill coming into force, claiming that the ideology of the Bill would restructure the transparency of the government and public authority dealings. Thus, the instances in which the public being blindfolded in times of corruption will be limited, and the Act will further provide the public with an avenue to raise their dissenting views and concerns of the same.

Looking over to our neighboring country, India, who enacted the fundamental right by way of the Right to Information Act 2005, would clear the murky waters of how successful the enactment would be in Sri Lanka. Dr. Rajesh Tandon made positive comments stating that Since the RTI law was introduced, India has seen an improvement in governance, dissemination of information and involvement of civil society in the governance process”[6]. However, the challenge in India is that acts such as the Official Secrecy Act and the Right to Information Act co-exist side by side with the right to information laws. Accordingly, the enactment of the Right to Information Act in India has exposed both how it can thrive a country to success and the possible existence of challenging conflicts to be tackled with.

Similarly, despite the anticipated positivity of the Act, a number of challenges remain when the implementation of the RTI in Sri Lanka is taken into consideration. For instance, archaic acts, such as the Establishments Code of Sri Lanka 1971 and the Sri Lanka Press Council Law No. 5 of 1973, continue to be in force. The existence of such Acts restricts the scope of the new Act in place and limits the public access to the benefits afforded in terms of Section 2 and 3 of the RTI Act. One such important Act that needs to be brought to attention is the Official Secrets Act No. 32 of 1955. The existence of this Act restricts access to documents that are confidential and documents that contain very sensitive information. Although, this act is buried and ignored and the terminology is stated to be outdated, the Act continues to be in force in Sri Lanka and consequently needs to be rectified by ways and means which will diminish the conflict with the new Act in place.

Nevertheless, the Parliament of Sri Lanka, which has the intention of achieving the promising outcomes of the act, certified the RTI Bill with a few proposed amendments on 04th August 2016. Although, the Act will take 6 months to be in force, the effectiveness and the essence of implementing the laws will continue to thrive for the aims of providing an approachable, transparent governance system. All in all, the implementation of a Right to Information Act in Sri Lanka is imperative to foster a nation of transparency, accountability and good governance and to ensure the rights of the public citizens of the country are safeguarded which Sri Lanka believes as a country driven by democratic principles.

[1] 2 UN Doc. E/CN.4/1995/32, para. 35.

[2] Right to Information, Gazette, Preamble December 2015.

[3] (S.C.F.R 47/2014)

[4] 1984

[5] Kennedy v. the Charity Commission [2014] UKSC 20

[6] http://srilankabrief.org/2015/03/beyond-rti-towards-open-government-in-sri-lanka/

Sudath Perera

Sudath Perera

Sudath Perera Associates at Founder

Email: sudath@sudathpereraassociates.com
Tel: +94 11 7559944 Ext: 311

The founder of Sudath Perera Associates and the Managing Partner, Sudath has crafted a unique brand of legal services which ensured the success of the Firm since its inception. Today the Firm boasts a strong client base of well-known local and multinational companies.

Sudath was called to the Bar of the Supreme Court of Sri Lanka in 1991. He gained invaluable experience working with several senior lawyers, including a leading President's Counsel of the Colombo Bar.

In 1995 he became a Partner at Paul Ratnayeke Associates and was instrumental in establishing the litigation, conveyancing, labour and employment law, intellectual property and company secretarial divisions within the Firm. His reputation for untiring work and his ethic of "never say never" led the Firm's litigation division to national pre-eminence.

While setting the standard for litigation practice, Sudath has also acquired broad expertise in conveyancing, energy law, immigration, administrative law and intellectual property law with special emphasis on brand protection, anti-counterfeit and piracy work.

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About Sudath Perera

Email: sudath@sudathpereraassociates.com
Tel: +94 11 7559944 Ext: 311

The founder of Sudath Perera Associates and the Managing Partner, Sudath has crafted a unique brand of legal services which ensured the success of the Firm since its inception. Today the Firm boasts a strong client base of well-known local and multinational companies.

Sudath was called to the Bar of the Supreme Court of Sri Lanka in 1991. He gained invaluable experience working with several senior lawyers, including a leading President’s Counsel of the Colombo Bar.

In 1995 he became a Partner at Paul Ratnayeke Associates and was instrumental in establishing the litigation, conveyancing, labour and employment law, intellectual property and company secretarial divisions within the Firm. His reputation for untiring work and his ethic of “never say never” led the Firm’s litigation division to national pre-eminence.

While setting the standard for litigation practice, Sudath has also acquired broad expertise in conveyancing, energy law, immigration, administrative law and intellectual property law with special emphasis on brand protection, anti-counterfeit and piracy work.