(Featured image courtesy Infocip)

This piece has benefitted from feedback received from several colleagues of the author, including Sankhitha Gunaratne and Gehan Gunatilleke)

This short piece is a reflection on the recently adopted Right to Information Act. Certain aspects of the Act give rise to questions regarding its enforcement. These questions arise primarily in relation to the appointment of the RTI Commission; the jurisdiction of the Court of Appeal in determining appeals from the Commission; and the functions of the Commission.

RTI a Win for Democracy

There is no doubt about the fact that the express inclusion of the right of access to information (Art 14A) in our Constitution and the passing of legislation for the enforcement of the right are outstandingly progressive developments. The Right to Information Act (No 12 of 2016) is a law that promises to transform the culture of Sri Lanka’s public service and public institutions by making it more accountable and transparent. The transformation is sought to be achieved at two levels – in terms of proactively making information available to the public and by compelling public authorities to release information upon request except where the information is protected from such release. The scope of the RTI Act goes beyond the public service and includes within its definition of ‘public authority’ (S 43) any other body that performs functions that are ‘public’ in nature. This means, for instance, that even a voluntary body that performs a significant public function, could be required to release information under the RTI Act. Advocates of the RTI Act therefore quite rightly promote this legislative intervention as a win for strengthening accountability and deepening democracy in Sri Lanka.

Appointment of the RTI Commission

In reading the actual provisions of the Act however several questions arise with regard to the way in which the enforcement of the right of access to information has been formulated. Last week, one such question was fore-grounded when two individuals who were nominated to the Right to Information Commission declined the appointment. In describing eligibility to be nominated to the Commission the Act states that nominees must be individuals who have ‘distinguished themselves in public life with proven knowledge, experience and eminence in the fields of law, governance, public administration, social services, journalism, science and technology or management’ (S 12(2)). Such nominees cannot hold political office, cannot hold public or judicial office or any office of profit, cannot be ‘connected to a political party’ and cannot be ‘carrying on any business or pursuing any profession.’ Remuneration for the Director General of the Commission is provided for in the Act while remuneration for the Commissioners is made possible in the Schedule to the Act. One of the grounds on which a Commissioner ceases to hold office is where she ‘engages in any employment outside the duties of his office’ (Schedule (1)(e)). The pool of individuals who can be nominated as Commissioners would necessarily have to be limited to individuals who have retired from work, or those who are willing to give up their employment or professional practice. Further whether they would accept this office would depend on whether the Commissioners have an independent source of income and/or whether the remuneration that is offered is adequate. As was seen this week, these provisions may make it exceedingly difficult to identify suitable individuals who are able to take up this office.

Given the broad language that has been employed in describing the restrictions to RTI that have been described in the Act, the appointment of a dynamic, competent and strong Commission is crucial for the effective implementation of the Act. Depending on the interpretation employed, the scope of the RTI Act could vary significantly. The Supreme Court, in its determination on the constitutionality of the Bill has already made the extremely problematic pronouncement regarding the scope of ‘national security’ under Art 14A. The Court held that that trade negotiations fall within the idea of ‘national security’. This interpretation confuses the notion of ‘human security’ which is associated with risks to the life and liberty of the person through armed conflict etc with concepts such as ‘economic development/interests’ or ‘economic stability’ perhaps. By using ‘national security’ to cover negotiations for trade agreement, the Court has stretched its meaning. The experience before the Supreme Court demonstrates the challenges that lie before the Commission in balancing competing interest in seeking to guarantee the right to access to information and the possible pitfalls.

RTI and the Exclusive Jurisdiction of the Supreme Court

Another issue that arises in reading through this Act relates to its constitutionality. The Constitution explicitly states that the Supreme Court has the ‘sole and exclusive’ jurisdiction to ‘hear and determine’ any right recognized under the Fundamental Rights chapter (Art 126). In other words, the judicial interpretation of the right to information is exclusively entrusted to the Supreme Court. The Constitution also provides, for instance, that if in proceedings before the Court of Appeal an alleged violation of a Fundamental Right arises, that aspect of the proceedings should be directed to the Supreme Court (Art 126(3)). The RTI Act, which declares itself as an Act to ‘provide for the Right of Access to Information’ (long title) describes the procedure to be followed when a citizen wishes to challenge a decision of an information officer. Appeal lies internally, then to the Commission and thereafter to the Court of Appeal (S 31 onwards). However, according to the Constitution, judicial determination of a fundamental right can only be made by the Supreme Court. Furthermore, the Act declares that every inquiry before the Commission is deemed to be a judicial proceeding as per the Criminal Procedure Code (S 19). This means that any person who provides false evidence through statements or produces false documents before the Commission can be tried before a Court of law.

In its determination on the constitutionality of the RTI Bill the SC held that the Commission is deemed to be acting judicially only in a narrow sense. It observed that the explicit statement that the Commission’s actions are to be deemed judicial vis-a-vis the Criminal Procedure Code suggests that generally the Commission is not acting judicially. While these clauses does not cast the Commission as exercising ‘judicial’ power per se, it could be argued that, at the very least, the Commission would be exercising quasi-judicial power. In any event, the Common law test for whether any public body is exercising judicial power is drawn from the Electricity Commissioner’s case (1924). According to this case even a body that is generally not considered to be a Court of law can be deemed to be acting judicially if it has the legal authority to determine questions affecting rights of subjects. If the Commission is deemed to be acting judicially, it seems that the Commission too would be in violation of the exclusive jurisdiction vested with the Supreme Court to determined fundamental rights. Alternatively, the Commission’s actions would amount to executive and administrative action. Where allegations are made of such action affecting RTI, only the SC would have the jurisdiction to determine such a petition, not the Court of Appeal.

From an access to justice perspective, it is obvious that enforcing the right to information through the Commission is commendable. In fact, several public representations have been made in support of providing lower courts, such as the Provincial High Courts, with jurisdiction to determine Fundamental Rights petitions. The point, however, is that the RTI Act does not offer means of reconciling the Supreme Court’s exclusive jurisdiction with that vested through the Act in the Court of Appeal and in the Commission respectively. Some guidance can perhaps be sought from the ICCPR Act 2007 which vests jurisdiction with Provincial High Courts for determining petitions which allege violation of rights recognized under the ICCPR Act. However, the human rights recognized under the ICCPR Act are statutory. They do, to some extent, overlap with some Fundamental Rights but whether that overlap would attract the Supreme Court’s exclusive jurisdiction is not clear. In any event, the ICCPR Act specifically states that ‘adjudication’ by the High Court ‘shall not extend’ to matters related to the rights recognized under Chapter III or IV of the Constitution (S 7(2) of the ICCPR Act). In relations to the RTI Act, within the present Constitution, parallel to the appeal procedure provided for under the RTI Act, any citizen could, in theory, still petition the Supreme Court directly. Moreover, the Supreme Court requires that petitions alleging fundamental rights violations to be filed within thirty days. These parallel mechanisms have the potential to delay the vindication of the right to information of a citizen. Generally, a request for information is made for the purpose of addressing another issue, for vindicating another fundamental right etc. therefore delay in seeking respect for the right to information can have far reaching consequences for those seeking such information.

The counter-argument can be made that Art 14A describes RTI only as a relational Fundamental Right (FR) – a FR that is respected in order to respect other FRs guaranteed under the Constitution. The RTI Act on the other hand recognizes ‘a right of access to information which is in the possession, custody, or control of a public authority’ (S 3(1)). Therefore the RTI Act recognizes an independent human right. Therefore, it is different to Art 14A. This argument suggests that an Act which declares it to be a law that seeks to guarantee the right to access to information that is recognized in Art 14A, however, ultimately offers a new regime of human rights. If this argument is valid, the RTI Act and Art 14A are essentially two different human rights regimes which overlap only when a citizen wishes to link RTI with another FR that he wishes to vindicate. If that be the case, a conflict between the exclusive jurisdiction of the SC and the RTI Act could be avoided in theory. This argument would still not help the Commission in relation to information requests made by a citizen to ‘safeguard the life or liberty of a person’ since in the case of such applications, the citizen is mandatorily required provide reasons for requesting such information (S 24(5)(c)). Furthermore, this interpretation of the RTI leads to a strange situation – one in which requests for information simpliciter are regulated by the Act and come within the scope of the Commission’s mandate but information that is requested for the protection of other fundamental rights are excluded from the Act and the work of the Commission. Such a distinction makes no sense. In any event, the argument that Art 14A and RTI Act essentially provide for two different types of right to information would hold water only if it is possible to maintain a distinction between Art 14A and the RTI that is recognized under the RTI Act. It must be noted that Art 14A states that its enforcement is to be prescribed by law. Presumably the RTI is that law but if the RTI Act essentially provides for a different aspect of RTI, Art 14A remains without any teeth as it were. For the purpose of moving forward with the work of the Commission, a distinction, would in any case, have to be maintained.

Powers of the Commission

The other question that arises in reading through the RTI Act is with regard to the duties and powers of the Commission. The Act vests three different functions on the Commission which seem to give rise to a conflict of interest. An Information Officer may seek the advice of the Commission regarding the release of information that is generally excluded from the RTI Act (S 5(5)). In excluding different types of information, the Act states that where the general public interest outweighs the interest of protecting that information, it could be released. Where an officer requests for advice, the Commission may within fourteen days provide such advice. Elsewhere the Act describes the duties of the Commission as including monitoring of performance by public authorities of their duties under the Act and ensuring their compliance (S 14). At the same time, the Act recognizes a prosecutorial function for the Commission for the offences described under the Act (S 39(4)). The Commission then acts as advisor, investigator and prosecutor under the Act in contravention to basic principles of natural justice and the rule of law.

It can however be argued that the Commission only exercises administrative power and that the availability of an appeal against the decision of the Commission, cures this defect. This is sometimes referred to as the ‘curative principle’ in Administrative law. Furthermore, if the Commission maintains a careful institutional division of responsibilities and different entities operate as advisor, investigator and prosecutor respectively, it might be possible to minimize conflicts of interest.

Further Comments

In addition to these questions that arise in reading through this Act other gaps can be noted.

In stipulating the time period for which records ought to be maintained by public authorities the Act states that new records created after the RTI Act comes into operation shall be maintained for 12 years from the date on which such record ‘was created’ (S 7(3)(b)). The obligation to maintain the record should come alive after the record or file is ‘closed’ as it is possible for records to run for more than 12 years on occasion. The phrase ‘commercial confidence’ employed to describe information that is deemed confidential in the interest of protecting commercial interests (S 5(1)(d) is confusing. It carries no literal meaning and is not referred to in the Intellectual Property Act of Sri Lanka. The phrase is used, however, in the Indian RTI Act and its appearance in the Sri Lankan RTI Act suggests that guidance may have been sought from the Indian Act (S 8(d) of the Indian RTI). More clarity in terms of drafting would enable citizens to understand the scope of this restriction clearly. Reference has been made in other jurisdictions to ‘commercial information provided in confidence’, ‘commercial in confidence’, ‘right to commercial confidence’ etc . Inclusion of an interpretation of this term, or a more clear employment of the term would prevent any confusion that may arise.

The interpretation clause of the RTI Act includes three different interpretations of educational institutions. They do not contradict each other but amount to repetition that ought to have been avoided. Furthermore, the RTI Act states that it shall prevail over other laws. However the Office of the Missing Persons Act (OMP, No 14 of 2006) which was enacted a month or so later, states that the RTI Act will not apply to it. It has been said in any event information provided to the Office of Missing Persons in confidence would be information that is excluded from the RTI Act under S 5. Furthermore, that this clause was introduced to reassure family members of missing persons that the information provided will be protected from public disclosure. However, this is a situation where two pieces of legislation seek to trump the other, resulting in confusion and unpredictability in the law. The example of the OMP Act also suggests that the RTI Act can be disregarded by excluding its application in future legislation. This trend could be stemmed if the RTI Act remains linked with Art 14A as it would then amount to a constitutional guarantee that could then trump legislation following the argument that was made in the case of Atapattu v People’s Bank (1997). However, this takes one back to the question as to whether Art 14A and the RTI Act are linked or not which was discussed above.

Drafting of Legislation

If the questions raised in this note regarding the RTI Act are in fact valid, further questions arise as to the state of drafting of legislation in Sri Lanka. Even one mistake or oversight in drafting of legislation is one too many. The ‘legislative intent’ that framed the RTI Act is confusing to say the least. Needless to say, some of the questions that arise in reading the RTI Act could have been resolved through the provision of clear formulations in the Act. ‘For the avoidance of doubt’ clauses, such as the ones employed in the Office of the Missing Persons Act, may have been employed in the RTI Act to ensure clarity of meaning and consistency between Art 14A and the Act. It is possible to address these issues through guidelines issued by the Commission and through binding judicial interpretations of the Act. The more useful reflection at this point would be with regard to the state of legislative drafting and related procedures in Sri Lanka.

The RTI Bill was not rushed through. Adequate time was afforded to the public to make representations discuss the draft and so on. However, many of these issues seem to not have been captured adequately in that process. Institutions responsible for approving Bills for adoption, the Parliament, Supreme Court etc approved this Bill at different stages and recommended it for adoption. Civil society engaged this Bill and supported certain clauses of the Bill when it was challenged before the Supreme Court. The process employed in the adoption of the RTI Act was probably more progressive, transparent and participatory in comparison to processes employed in the adoption of legislation in the past. It seems however that some gaps remained under the radar.