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The farce of the Right to Information Act

30 Aug 2022

  • The lie, the whole lie, and nothing but the lie
BY Ruwan Laknath Jayakody and Faizer Shaheid Section 6 of the proposed Bill although granting access to areas of information that are not covered by the protected list in Section 5(1) appears to be redundant due to the wide interpretation given to the provisions in gene Further to the wide interpretation of the provisions mentioned in Section 5 of the Right to Information Bill, it must also be noted that the proposed Bill does not seem to supersede the Establishments Code despite Section 3 of the proposed Bill stating that it shall prevail above all else. The Establishments Code sets out the procedure for officers of the State sector, hence ensuring good governance in public departments, authorities, corporations and others. It emphasises the role of public authorities in disclosing information to the general public. Section 3 of Chapter XXXI of Volume 1 of the Establishments Code has been very instrumental in curtailing the powers of those in public authorities to disclose information to the general public. It expressly states that a public official is not entitled to the exercise of his/her political rights. A public official can neither call for a public meeting unless authorised to do so, nor can he/she use the medium of newspapers to propagate information, publicise his/her grievances and criticise the Government using any public medium. Section 6 of Chapter XLVII of Volume 2 of the Establishments Code discusses more comprehensively the procedure of releasing official information to the mass media. It limits the power of disclosing such information only to the Heads of Departments and Secretaries. Such information too would be channelled through the Director of Information. The information too is limited to facts and statistics, and even the Secretaries and Heads of Department are not empowered to proffer their opinions. Where there is ambiguity, only the Minister is authorised to comment to the media. An ordinary public officer is forbidden from propagating information to the media. If information is divulged through a public officer who is not authorised, the Heads of Departments would then inquire into the circumstances and then submit a confidential report to the Secretary who would pursue further action if necessary. Section 7 of the Establishments Code also prevents a public officer from contributing articles or submitting information through a pseudonym. If both the Right to Information Bill is read in concurrence with the Establishments Code, it is quite evident that only particular pieces of information could be derived and this too, through very limited means. The Official Secrets Act has often been deemed as a very repressive Act similar to that of the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 as amended. The prime issue is in the interpretation of an “Official Secret” in Section 27 of the Official Secrets Act. The provision of the Act reads: “An official secret means, (i) any secret official code word, countersign, or password; (ii) any particulars or information relating to a prohibited place or anything therein; (iii) any information of any description whatsoever relating to any arm of the armed forces or to any implements of war maintained for use in the service of the Republic or to any equipment, organisation, or establishment intended to be or capable of being used for the purposes of the defence of Sri Lanka; and (iv) any information of any description whatsoever relating directly or indirectly to the defences of Sri Lanka”. Needless to say, the interpretation is so broad, that it covers virtually anything. The provisions are extremely vague, and anything and everything could be deemed as an official secret. Even information owed to the public upon the enactment of the Right to Information Bill through its very limited avenues could be withheld under the Official Secrets Act. The case of the Environmental Foundation Limited vs. The Urban Development Authority (UDA) and Others, which was taken up in 2004 and concluded in 2005, was a case concerning a lease agreement entered into between the UDA and a private company for the development, management, and control of the Galle Face Green. The court (with then-Chief Justice Sarath Nanda Silva PC joined by Justices Nissanka K. Udalagama and Nimal E. Dissanayake, penning the court’s unanimous opinion) had determined that the UDA, being an organ of the Government, is obliged to protect the fundamental right to expression in regard to matters of public interest. The court stated that although there had not been any explicit Right to Information in the Constitution, the right was guaranteed under the Freedom of Speech, Expression and Publication under Article 14(1)(a) of the Constitution. The right exists where public interest in the matter is more paramount than any official communication. The Right to Information Bill in Section 5(2) vests in the hands of the Right to Information Commission, the discretion in choosing whether or not matters are of public importance. As such, the power of the courts is no more existent in determining the said right. The Right to Information Bill was in no way unrestrained. It held many flaws and could be deemed as suppressive. The general public already had limited access to certain types of information without any legal enactments, and such had few limitations imposed apart from the already prevailing statutes. The right to information had also been recognised by the court and upheld emphatically. The already limited right has in no way been expanded by the proposed Bill and upheld only what already exists while limiting a whole lot more in an arbitrary fashion. Section 5(1)(a) should have been reworded to state clearly that the personal information of the individuals concerned with the requested information will not be disclosed unless expressly consented to in writing. If taken in the context that was prevalent at the time, “personal privacy” in the provision may be interpreted very broadly. Section 5(1)(b)(ii) which prevents the disclosure of information if it causes serious danger to the life or safety of persons needed to be struck off. This is because the State is obliged to protect its citizens, and adequate protection should be afforded to informants. The “International Organisation” in Section 5(1)(b)(iii) must be clearly defined in order to avoid confusion. Any expansion of the definition of “International Organiaation” should also include international non-Governmental organisations and local non-Governmental organisations receiving foreign funding. The words “harm the commercial interests of any person” in Section 5(1)(d) needed to be struck off from the provision completely. Section 5(1)(e) must be reworded to state that only medical information of the persons would not be disclosed. The words “The information could lead to” in the provision must be deleted, and should read “Any medical records relating to any person unless such person has consented in writing to such disclosure”. The provision in Section 5(1)(f) must further include the words, “Except any such communication made in furtherance of any illegal purpose, crime, or fraud”. Section 7(2) contradicts Section 5(3) as information pertaining to certain matters in the denied list, although permitted to be disclosed after 10 years, may not be disclosed as records would be preserved for only 10 years. It was recommended that such information on the denied list be disclosed following the expiration of five years so as to promote the right to information. Section 31, which states that the granting of access to information does not constitute consent for publication, should have been struck off entirely. Section 3 of Chapter XXXI of Volume 1 of the Establishments Code and Section 6 of Chapter XLVII of Volume 2 of the Establishments Code needs to be amended in light of the Right to Information Act. The interpretation of an “Official Secret” in Section 27 of the Official Secrets Act should not be so broadly defined. The excuse of an official secret could otherwise be used to further restrict information being disclosed to the public. The Profane Publications Act, No. 41 of 1953, the Obscene Publications Ordinance, No. 4 of 1927, and the Public Performances Ordinance, No. 7 of 1912, too need to be revisited (repealed or failing which, amended) in light of its applicability to the Right to Information Act and potential limitations imposed on the Right to Information.  


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