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Friday, July 12, 2024

Sri Lanka: BASL lost a major case: “It comes under the category of NGO & legally obliged to respond to RTI requests” – Commission

In a significant ruling, the Right to Information Commission of Sri Lanka has ruled that ” the respondent [BASL] qualifies as a Public Authority in terms of the general definition of a non-governmental organization as detailed in Section 43 read with Section 43 (i). We conclude that the information so requested in this appeal falls within the information that qualifies to be released in terms of Section 43(i) being information ‘relating to a service that is rendered to the public’ and which is important in the public interest as contemplated by Section 5(4), with no bar to release thereof in terms of any of the sub-sections of Section 5 (1), none of which have in any case, been pleaded by the respondent.”

The decision was delivered by RTI Commission on 29th August 2023 re the case of Kamal Vithanage, 34/1, Sri Wimalasiri Road, Kalubowila, Dehiwala -Appellant Vs. Bar Association of Sri Lanka, No. 153, Mihindu Mawatha, Colombo 12 .

Excerpts from the decision:

“It stands to reason that the same principles of transparency and accountability must relate to the respondent body, the BASL in as much as these principles underline the conducting of public activities by the BASL in furtherance of promoting and fostering the Rule of Law.”

“In this appeal, the appellant is requesting what may legitimately be referred to as ‘routine’ information; viz, firstly, the action taken by the respondent in regard to several complaints filed by him as detailed thereto including the expedition of complaints categorized as ‘serious’ and secondly, statistical data regarding complaints/petitions received by the respondent against attorneys-at-law during 2011- 2020. We do not find that considerations of ‘secrecy’ apply to such information; rather this is information that may be proactively disclosed by the respondent in the public interest.”

In any event, by virtue of the respondent body’s [BASL] own activities in the public sphere, its role and function to upholding the Rule of Law in Sri Lankan society in sum is greater than the parts of the whole as constituted by its members appearing in their professional capacities in litigation. What the Appellant is asking for is general information that relates to principles of good governance which is precisely the subject of many conferences and discussion sessions that are held by the respondent body, some of which are supported and ‘substantially funded’ by international organizations and that information ‘relates to the service that is rendered to the public’ by the respondent (ie; in informing and educating the public in general regarding the governance process).”

The Administrative Secretary/CEO of the Bar Association of Sri Lanka (BASL) on 29.04.2021 had  responded to the request as mentioned below;

“We acknowledged receipt of your letter dated 29th March 2021 on the above-captioned matter.

“We acknowledged receipt of your letter dated 29th March 2021 on the above captioned matter. As the Bar Association of Sri Lanka does not fall within the RTI Act as per section 43 therein. Accordingly we regret to inform you that we are unable to provide you with the requested information.”

“The Appellant on 02.02.2022 filed Written Submissions, stating inter alia that,1. The respondent is a body established under the written Law, namely, the Administration of Justice Law No 44 of 1973 in the context of the respondent being established „pursuant to the enactment‟ of the Administration of Justice Law, No 44 of
1973 and thus the respondent is a Public Authority within the scope of Section 43(b) of the RTI Act.

2. At least for a portion of the work of the Respondent, the Respondent is either directly or indirectly providing a public service, by being in partnership with government or
its agencies and thus the Respondent is a Public Authority within the scope of Section 43(g) of the RTI Act.

3. The information under items 1, 2, 3 and 4 of the Information Request, fall within the scope of the activities covered by the component of public service rendered by the
Respondent either directly or indirectly and thus the information cannot be withheld to the Appellant even if the Respondent is held to be a Public Authority under 43(g) of
the RTI Act, rather than under Section 43(b) of the RTI Act.

BASL responded thus:

“In response, the PA filed Written Submissions on 03.02.2022, stating inter alia that;

1. The advocates of Sri Lanka and the members of the Incorporated Law Society of Sri Lanka have through a General Meeting resolved to form an Association called the
Bar Association of Sri Lanka. It is for this purpose that a joint Committee was created to draft a Constitution for the BASL.

2. The BASL is therefore, not incorporated or established under a statutory provision and/or government body.

3. The Administration of Justice Law No. 44 of 1973 makes no reference to the BASL of any association that can be remotely inferred to be a reference to the BASL. Therefore, under no construction of statutory interpretation can it be said that the BASL was created or established by or under the Administration of Justice Law No.44 of 1973 and the words, „any body or office created or established under anywritten law‟ in Section 43 (b) cannot be equated to a situation where a body comes into being „pursuant to the enactment of‟a particular law

4. The BASL functions as a body which acts in the interests of a niche group of professionals, and that those functions cannot be construed to mean that the
Respondent performs a public function.”

RTI Commission in its 12-page decision examines in detail BASL activities and what is an NGO according to the RTI act.

Read full determination as a PDF:RTI re BASL 815-2021 – 29.08.23

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