Columns

The raucous commotion in Parliament this week with the passing of the Office of Missing Persons Bill without a vote is reflective of our utterly degenerate political culture. Even now, there is no clear idea of the numbers mustered on the floor to ensure the passage of this enormously significant legislation.

No politician can profess innocence
Sri Lanka’s disappeared number in their thousands. These unfortunates are not confined to one ethnicity. Indeed, the fate of the ‘missing’ is the most powerful common factor uniting the Sinhalese, Tamil and Muslims down the ages. Many years ago, before unscrupulous politicians co-opted the Mothers Front of the South and the North, this was the one civil rights mass movement which had the potential to force the political command to come to a reckoning as to what happened to their sons and daughters.

So let us be quite clear on this. No political leader in this country, President or Prime Minister can wash his or her hands, Pontius Pilate fashion, and proclaim ‘I am innocent of that blood.’

Consequently this was a Bill that demanded the most rigorous solemnity and scrutiny. It called for a collectively profound moment of mea culpa. Instead, we had ugly political point scoring by the Rajapaksa-led Joint Opposition and a Bill rushed through by the Government in an unfortunately indecent hurry.

A legal issue of concern
In the parliamentary melee, some amendments were passed to the OMP Bill on the floor of the House though there is little certainty as to their precise content. Reportedly, the changes include amendments to Clause 11, Clause 12 (f) and Clause 21 of the Bill.

These amendments relate respectively to the OMP’s entering into agreements with any person or organization, the prescribing of parliament approved guidelines on visits to places of detention as well as advance notifications therein to the Inspector General of Police as well as a stipulation that funds raised by the OMP must be channeled through the External Resources Department.

But a major legal issue remains if the OMP Bill’s exclusion of the Right to Information Act, No 12 of 2016 (the RTI Act) has passed through Parliament without amendment. As observed in these column spaces previously, clause 15 of the Bill had stated that the RTI Act will not apply in regard to matters communicated to every member servant, officer and consultant of the OMP ‘in confidence.’

Differences between the laws
Recent arguments advanced by government advocates to justify this exclusion have been spurious at best. One particular defence was that certain laws such as the Monetary Law already provide an exception to RTI and that therefore this clause in the OMP Bill is nothing to be perturbed about.

But there are fundamental problems with this argument. The Monetary Law predates and therefore, as a matter of broad principle, has to yield to the RTI Act. This is very clear in terms of Section 4 of the RTI Act which states that the RTI law shall prevail in the event of any inconsistency between that law and ‘such other written law.’ Essentially, the only exclusions in respect of all past laws without exception are the specific and limited exceptions contained in the RTI Act itself.

Granted, at certain points, exceptions detailed in the Monetary Law may overlap with the RTI exceptions such as in relation to requests for the premature release of information pertaining to exchange rates or the regulation of banking or credit. But that is quite a different matter from arguing that the Monetary Law itself prescribes an exception to RTI. This is simply incorrect in terms of the law.

Lacunae in not defining ‘in confidence’
In any event, unlike the Monetary Law, the OMP Bill comes after the RTI Act. Therefore Section 4 of the RTI Act conferring a primary status on that law as against other ‘written law’ does not apply. In consequence therefore, the information shut out by the OMP Bill is not governed by the limited exceptions of the RTI Act. Nor is it subject to the overriding principle of disclosure in the public interest under Section 5(4) of the RTI Act.

The main reason for Section 5(4) was Sri Lanka’s outdated colonial official secrecy laws which were unacceptably vague in their definitions of what precisely constitutes an ‘official secret.’ That same vagueness characterizes the applicable provisions of the OMP Bill where the RTI Act is shut out. The RTI does not apply where information is received ‘in confidence.’ Yet nowhere is the term ‘in confidence’ duly explained or interpreted in the Bill despite the fact that this term occurs at several points elsewhere as well. Most particularly, in Clause 12(c)(v), a variant of this same term applies in relation to a vital investigative power vested in the OMP; namely its authority to ‘establish a process to accept information on the condition of confidentiality.’

As a result, there is a disturbingly open ended discretion given to the Office of the OMP, its members and so on to categorise virtually any information received by it/them as ‘information received in confidence’ or information accepted on the basis of ‘confidentiality.’ One can only hope that the committee stage amendments addressed this lacuna.

Need for more certainty
In principle, the singular importance of protecting the confidentiality of persons who give information re the ‘missing’ is self evident. However the question is whether specifying a statutory exclusionary clause with undefined terms is the best way to go about ensuring this?

The problem is not merely that the OMP Bill comes so soon after the RTI Act and (literally) where the ink has scarcely dried on the law itself. That contradiction by itself is incongruous enough.

And once, (even with the most laudable of intentions), a statutory exclusion is applied regarding RTI, there is nothing to stop future laws or amendments to enacted laws providing even more unacceptable exclusions. For instance, an argument may exist that an equally persuasive rationale exists for an RTI exclusion regarding the Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015.

Certainly if this exclusionary clause has been retained through the rowdy passage of the OMP Bill in the House, it is unfortunate. If the RTI Act is not to lose its essential value, this is a slippery precedent that must be speedily discarded.