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Monday, February 26, 2024

The Supreme Court’s Mind on RTI and Priorities Ahead – Kishali Pinto Jayawerdene

Contrary to what certain media reports excitably proclaimed this week, the Supreme Court’s Determination on the constitutionality of Sri Lanka’s Right to Information (RTI) Bill held little surprises.

In the main, the ruling did not pose formidable challenges to the basic integrity of the Bill. However, it did reflect a degree of judicial conservatism therein.

Conflict brought about by the 19th Amendment
First, let us look at the widening of exemptions to RTI. The RTI Bill had included information constituting contempt of court among the general exclusions. This was on par with standard exclusions in RTI laws despite the considerable disquiet of advocates who disagree with contempt being used to block the right to know.

The Court recommended however that information be also excluded in the interests of “maintaining the authority and impartiality of the judiciary.’ To be impeccably fair, the Bench may have considered its hands to be tied in this regard for the 19th Amendment to the Constitution has that very same bar. The Justices cannot therefore be faulted beyond a point for their emphasis on the need to ensure constitutional conformity. Regardless, a wistful expectation persists for a more adventurous judicial view inclining towards contempt alone (surely) being sufficient enough protection for the purpose.

But more to the point, there is a serious issue here regarding the potential conflict between the 19th Amendment’s RTI provision and a pending RTI Bill. This was predicted in this newspaper last year, see the Sunday Times of 19th April 2015 (vide ‘Giving with one hand and taking with the other’ and editorially, ‘19A defeats Government’s well meaning RTI law’). It was observed then that the 19th Amendment’s inclusion of both contempt and a vaguely termed ‘authority and impartiality of the judiciary’ as barriers to RTI disclosure was profoundly unwise amounting to classic double jeopardy

Dangers of hasty constitution drafting
The Court’s Determination this week implicitly bears out this fear. The one saving grace is that the public interest override applies across the board to all exclusions. This must be used effectively to ensure the public transparency of the judicial institution through RTI, particularly as Sri Lanka lacks a Contempt of Court law.

Indeed, we may count ourselves fortunate that the Court confined itself to taking judicial notice of the unwarranted expansiveness of the 19th Amendment in regard to only this instance. This constitutional amendment’s archaic restrictions included information being prohibited to protect the rights and reputations of others and a veritable Victorian bar on withholding information on the ground of the ‘protection of morals.’ If the Court had addressed itself to these other overbroad restrictions and stipulated amendments to the Bill therein, we may well have had to discard the RTI Bill as it would have been completely subverted. .

As warned repeatedly in these column spaces, uninformed and hasty constitutional drafting carries with it dangers that go beyond the term of whatever Government in power for the time being. What we see here is a good example.

Summary dismissal of misinformed critiques
Detailed scrutiny of the Determination is not possible in these limited column spaces. Apart from the correction of technicalities which had probably crept in after the draft changed hands between government and provincial agencies, it was also prescribed by the Supreme Court that higher educational institutions and professional bodies should be subject to RTI disclosure only if they are funded wholly or partly through state or provincial funds.

Interestingly, the Court summarily dismissed the claim that the RTI Bill’s bar on premature disclosure of overseas trade agreements and financial or economic policies offended transparency in government. In doing so, it cannily quoted Indian jurisprudence to the effect that the right to know cannot be absolute. Instead it must be balanced with competing interests. Thus, there would be certain classes of documents requiring protection, including pending trade negotiations or exchange rates and the regulation of banking. Otherwise, individuals may unfairly benefit from that knowledge in advance.

To be clear, it is only ‘premature’ disclosure that may be refused. In any event, even though this is (conveniently) missed by some, the information may be compelled under the public interest override. Thus, for example, it is extravagant to say that the Court’s ruling means that information requests cannot be filed in regard to information pertaining to the proposed Economic and Technical Cooperation Agreement (ETCA) between Sri Lanka and India. On the contrary, such requests can be lodged. The duty of determining if the public interest merits the disclosure is on information officers and the Right to Information Commission with a judicial hearing at the final stage.

Critical scrutiny and priorities ahead
Relatedly, though this issue was specifically not mentioned in the Determination, frantic cries raised by certain commentators and misinformed political pundits of the Janatha Vimukthi Peramuna (JVP) that the Central Bank of Lanka is exempted from the RTI Bill is totally without any foundation. There is no such exclusion.

In fact, flamboyant arguments that the Indian RTI law is more liberal in this regard are misguided. That law excludes the disclosure of information ‘which would prejudicially affect the sovereignty and integrity of India and the security, strategic, scientific or economic interests of the State.’ This term has a wide reach and is exceedingly generalized. Here too, premature disclosure of trade agreements is disallowed as was the case a few years ago when an RTI request was filed regarding a proposed India – European Union Free Trade Agreement. But a fine balance has generally been observed in not blocking information in the public interest. Similar vigilance must be exhibited here. Solid work from the grassroots upwards, which was precisely how RTI developed as a powerful tool in India, will yield far more satisfying results than grandstanding in Colombo for the sake of publicity.

That said, the infamous RTI provision in the 19th Amendment must be revised. As much as this Amendment was deceptively packaged by its ‘yahapalanaya’ advocates as manna from heaven when its clauses were self-contradictory and self-defeating such as those relating to the public accountability of the Constitutional Council, so was it in relation to RTI. The fact that these lapses passed critical muster in a collective gasp of relief in having got rid of the Rajapaksa monstrosity is no excuse for our own culpability.

We see the consequences of this distressing failure day by day.
Sunday Times


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