On Tuesday, the new Government is optimistic that those parts of the 19th Amendment (19A) to the 1978 Constitution — cleared by the Supreme Court — would be passed by a two-thirds majority in Parliament, notwithstanding undercurrents of a spoiler by lawmakers unhappy with the outcome of the January 8 Presidential election.
While there is general acceptance to whittling down the powers of the Executive Presidency, the contentious issue is that electoral reforms must also be passed at the same time. That is nothing but a ploy to scuttle 19A. One of the progressive measures the new Government promised and has taken meaningful steps in implementing is the long-felt need for a Right to Information Law. International covenants encourage such a law and modern democratic nations have embraced it in the pursuit of good governance.
Sri Lanka might well have been the first to adopt such an RTI Law in this part of the world, more than a decade ago, when the Ranil Wickremesinghe government in its previous avatar put body and mind behind this law only to see it being frustrated at the final post when the then President, Chandrika Bandaranaike Kumaratunga, dissolved Parliament prematurely just when the bill was about to be placed in the Order Paper of Parliament. From being one of the first countries in South Asia, Sri Lanka now has the dubious distinction of being – probably – the last to bring in such a law. Probably, because there is still the chance of Parliament being dissolved once again – this time on the insistence of Premier Wickremesinghe himself, before the law is passed.
For all those years between 2004 and 2015, neither the Kumaratunga Government nor the Mahinda Rajapaksa Government was interested in bringing in this law. The latter deliberately filibustered on the matter when Opposition MPs tried to bring in this law even as a Private Member’s bill. The regime promised to bring one of its own. The reasons for this vacillation are patently clear – the Government wanted to hide its secrets from the very people it claimed to work for.
In bringing the Right to Information Law, the new Government has gone one step further — i.e. to enshrine the Right to Information as a citizen’s constitutional right. One cannot ask for more from a Government that proudly claims to have ‘Yahapalanaya’ (Good Governance) as the backbone of its administration. This it has done by expanding the Fundamental Rights chapter of the Constitution and widening the scope of Article 14 which deals with Freedom of Expression.
Alas, by this noble deed, the Government has, inadvertently (as it cannot be intentionally) defeated the very purpose for which it is introducing the RTI Law. How so? It is by introducing into the proposed 19th Amendment (19A) words that wholly negate what the draft RTI Law permits as Exceptions to the Right to Information. The 19A includes as exceptions to a citizen’s Right to Information vague grounds such as “for the protection of morals – and the reputation or the rights of others,” the interpretations of which are so wide that persons wanting to hide information, especially politicians in power, can easily take cover behind these exceptions. These apart, outdated concepts like Contempt of Court, Parliamentary Privilege and other restrictions have been included in these exceptions. It is clear that the drafters of the 19A have taken the constitutional restrictions applicable to Freedom of Expression in the 1978 Constitution and merely done a cut-and-paste job to slot them into the 19A and impose them wholesale in regard to the proposed constitutional provision that makes Right to Information a constitutional guarantee of each citizen. Some say it is the Attorney General who has done so, probably as an abundance of caution.
The progressive nature of the new Government has been defeated by this if it is merely to go way back to the 1978 Constitution. The democratic world has moved on in the past 35 plus years and the Wickremesinghe Government knows that only too well. By dusting and re-introducing these regressive, retrograde constitutional provisions, the carefully drafted proposed subsidiary Right to Information Law becomes virtually meaningless.
Some of these exceptions were not included even a decade ago when the Prime Minister himself presided over the committee overseeing the draft RTI Bill (of 2004) together with the then Attorney General and others. Yes, there must be provisions for the protection of the interest of the administration of justice and even the rights of MPs, but not by bringing in sweeping cover through Contempt of Court (for which there is a separate demand asking for a law on Contempt of Court) and Parliamentary Privilege. (Please see a more detailed analysis in the ‘Focus on Rights’ by our Legal columnist Kishali Pinto Jayawardena).
A modern Constitutional Right to Information Law should not contain outdated restrictions but should be based on the modern principle of maximum disclosure as informed public opinion is the most potent of all restraints upon misgovernment and an open information regime – a principle this Government and almost all its partners have accepted as a bulwark against runaway autocracy.
Amendments to the Right to Information provision in the 19A, therefore, need another look even at this late hour if the RTI Law that is to follow is not to become not even worth the paper it is printed on instead of being one of the revolutionary and significant pieces of legislation this new Government would introduce.