Focus on Rights

Pushing for freedom of information, BI-Partisan style
As in every other instance, politics overshadowed citizens' concerns at the Commonwealth Heads of Government, (CHOGM), summit, 2003, held in Abuja, Nigeria. While the theme of the sessions was development and democracy, what really held the media focus was the fairly unseemly race for the post of Commonwealth Secretary General between the incumbent Secretary General, Don Mckinnon and the surprise candidature of Sri Lanka's Lakshman Kadirgamar. Mckinnon's re-election had been opposed by a number of African countries as a result of the tough position taken by him on Zimbabwe's exclusion from the Commonwealth. At the time of writing this column, Mckinnon had reportedly won his re-election by a substantive majority.

As to why Sri Lanka should have concerned itself in this imbroglio in the first place is difficult to assess, except as merely another instance of the massively foolish manner in which this country, (in this instance, apparently both the PA Presidency and the UNF government), thinks it fit to contest prestigious international appointments.

The incredible faux pas made recently by the Government in putting forward two candidates for the post of the United Nations Special Rapporteur on the Independence of the Judiciary, has yet not faded from our memory. Now, all that remains is for us to suffer another ignominious defeat with our candidature for the post of Secretary General of the United Nations. One can only marvel at the manner in which these ribald situations are brought about by our own deeply problematic ineptness. There appears to be a perception that, (as much as the process of governance has been brought to a standstill in this country due to a sheer lack of insight and clear headedness on how to work basic democratic structures), equally muddleheaded thinking would carry us through on the international front. Despite the many reality checks that we continue to suffer in this regard, we still carry on nonetheless. This, in effect, is what is so truly amazing.

This dysfunctional thinking has pervaded in other areas relevant to the CHOGM summit as well. For example, take the issue of Freedom of Information that has emerged as an important lobbying strategy for the Commonwealth during the ongoing sessions. While the United National Front government has, to its credit, concerned itself with the arduous finalisation of a Freedom of Information (FOI) Bill during the past many months, it would have been good if the Bill had been approved by the Cabinet and made available for discussions at the CHOGM sessions.

Unfortunately as it may be, President Chandrika Kumaratunge's request that the Bill be deferred for two weeks until it is studied by her, in her capacity as Minister of the Media, has resulted in yet another delay. It is to be hoped that the time limit specified by her would not be extended ad infinitum. If the FOI Law becomes a victim of political upmanship between the Presidency and the Government, this would be yet another nail in our collective coffin of good governance.

The fact that the FOI law could not be brought to some measure of conclusion before the CHOGM summit is a pity, largely because this is perhaps the most liberal FOI draft yet to come out of any South Asian country. It gives every citizen, the right of access to official information which is in the possession, custody or control of a public authority, (defined widely), and provides that the provisions of the law will prevail over any other existing law that is in conflict. In that sense, it affirms the principle of maximum disclosure and is premised therefore on a different basis to the draft Access to Information Act proposed by the Law Commission of Sri Lanka in 1996.

The Law Commission draft, critiqued widely for its excessive conservatism, gave access only to information declared by the Minister to be public information or information relating to decisions, proceedings or acts affecting the citizen requesting the information and rendered itself ineffective against existing archaic statutes such as the Official Secrets Act No 32 of 1995. It contained other deficiencies such as widely framed grounds for denying access and the non availability of an independent right of appeal to any citizen aggrieved by non-disclosure except to the court.

In the years since 1996, discussions on the manner in which Sri Lankan citizens ought to be provided the right to information have been bolder and more informed by international human rights standards. The FOI Bill, presented to the Cabinet this week, attempts therefore to balance the right to information with the reasonable need for secrecy, provided always that catchphrases such as national security and territorial integrity cannot be used indiscriminately by government officials to deny information.
Thus, for example, though information could be shut out on grounds of serious harm to the defence of the State, disclosure is permitted if it is vital in the public interest. A similar caveat applies to pending policy decisions by the government. All information (excepting trade, commercial or medical secrets or information protected by professional privilege) over ten years old is available for scrutiny.

Then again, though the Bill prevails over the provisions of any other written law, it will not apply where such laws prescribe a secrecy oath with regard to members of bodies created under them, the commonest example in this regard being the Bribery and Corruption Commission whose members are under a secrecy oath in respect of ongoing investigations. The Bill meanwhile imposes a duty on all Ministers (including the President, when remaining in charge of any Ministries) to make public, records and other information specified in its provisions. A similar duty is imposed with regard to local and foreign funded projects within certain monetary limits.

All requests for information first goes to an information officer appointed to every public authority with an appeal lying therefrom to the Freedom of Information Commission that is appointed under the law. The Commission is comprised of three persons appointed by a consultative process between the President and the Constitutional Council and with security of tenure. Time limits for the supplying of information, rejection of the request and for appeal are strictly provided for. An appeal is also provided to the Supreme Court against the decision of the Commission.

Where the Sri Lankan draft departs from existing and proposed laws in South Asia however is in its express stipulation of protection for whistleblowers. The Bill permits employees of public authorities to voluntarily release information permitted to be released under the law, (without fear of sanction), if such information disclosed evidence of any wrongdoing or a serious threat to the health or safety of any citizen or to the environment provided that this was done in good faith and in the reasonable belief that the information was substantially true.

If contrary to the muddleheadedness that we see now, the FOI Bill is treated by the PA Presidency and the UNF government as a genuinely non political effort to bring about a more open information regime in this country, we would have surmounted only the first hurdle. Thereafter, concerned lobby groups and citizens should acquaint themselves with the provisions of the Bill and lobby for further finetuning, if the need so exists.

Even more importantly, the FOI law should be taken to the people. Assuredly, it is there that its true efficacy will lie, not in the benefits that it could bring to a handful of city based NGO's and journalists. It is in this sense that we can learn from India where village based activist networks such as the Mazdoor Kisan Shakti Sanghatana (MKSS), which have utilised India's information laws in Rajasthan for example, with astounding success. In the alternative, the thought of yet another barren law and yet another dysfunctional Commission is too horrifying to contemplate.

Back to Columns