Focus on Rights

Applauding the enacting of India's freedom of information law
The recent enacting of India's Right to Information law covering the Central Government, the States and the Union Territories is a commendable development in that country. State Information Commissions will be set up in all States as appellate bodies to review the refusal of Public Information Officers (PIOs) in order to facilitate the operation of the Act.

Information activists, including the New Delhi based Commonwealth Human Rights Initiative have protested at the inclusion, at committee stage in the Lok Sabha of certain amendments to the law, which they maintain, will result in lesser impact of its provisions including the changed and more politically charged composition of the committee which appoints the information commissioners. Notwithstanding this, India needs to be commended for its passing of a Right to Information Law which will draw upon the considerable jurisprudence in that country in regard to the right of every citizen to ask for information from public bodies in relation to processes of governance.

As any person even remotely acquainted with the Indian information movement would be aware, the campaigns took place at the very grassroots level where women activists demanded from their local government councillors, information as to how the budget allocations were being spent. It was not an elitist formation at central level, limited to the media and academics. Instead, the movement was truly vibrant, resulting in magnificent gains in village communities where, in some instances, politicians and public officials were even compelled to resign upon exposure of corrupt practices. While most States enacted their own freedom of information laws that were very well utilised thereafter, the enacting of the national law will act as further impetus towards crystallization of these gains.

In contrast, the stagnant position at which Sri Lanka's Freedom of Information draft law presently remains is not a pleasant reflection at all. This draft was finalised consequent to discussions between policymakers, public officials, media bodies, activists and academics in 2003 and submitted thereafter to President Chandrika Kumaratunga for her approval. It has since then been languishing in the offices of the Presidency. The absence of even the most preliminary dialogue on the need for its enactment has been marked.

Neither has the United National Front (UNF) opposition, (despite the fact that the Bill was drafted at a time when the UNF was in government), evidenced any vigorous desire towards its implementation. Collectively, this demonstrates yet again, nothing more than the singular lack of interest on the part of both political parties in promoting good administration except when it affects them or benefits them politically. The minority parties have, needless to say, evidenced no interest in the issue either.

As recent research studies have shown, the lack of information has had a tremendously negative impact on landowners on major development projects in Sri Lanka, including, for example, the Matara-Colombo expressway (Southern Expressway). While those with the necessary financial and social support have gone to courts - and indeed, are continuing to invoke legal relief in such cases, they are outnumbered by the many others who are not so fortunate.

Then again, you have the spectacular lack of information relating to the exact utilisation of tsunami aid at all levels of government, which convoluted process needs no peculiar elaboration here. While this is not to suggest that the enactment of a FOI law in Sri Lanka would have been akin to a magic wand solving all these problems of information deficit, there is no denying that it would have gone a long way towards dispelling the positive culture of secrecy that prevails in the functioning of public institutions.

For example, (past from the general duty to disclose information upon a request made), clause eight in the draft law stipulates the specific proactive dissemination of information on the part of all ministers in relation to projects, the value of the subject matter of which exceeds, in the case of foreign funded projects, one million united states dollars; and in the case of locally funded projects, five million rupees.

In other respects, the FOI law, as it stood drafted, exemplified commonly understood principles in relation to the right to information. It gave every citizen, the right of access to official information in the possession, custody or control of a public authority.

A public authority was defined as a Ministry, any body or office established by or under the Constitution other than the Parliament and the Cabinet of Ministers, a Government Department, a public corporation, a company incorporated under the Companies Act, No. 17 of 1982, in which the State is a shareholder, a local authority and any department or other authority or institution established or created by a Provincial Council. The law denied access to information in limited and generally accepted circumstances including among others, to protect medical secrets or the personal privacy of an individual (except where consent is given). Where access is denied on national security grounds, it was subject to the condition that such disclosure was not vital in the public interest.

The Act contemplated the setting up of a three member FOI Commission (appointed by the President on the recommendations of the Constitutional Council), with the members having security of tenure together with the establishment of information officers in every public authority whose duty it was to release information in terms of the Act. Appeals from the decision of the information officer were provided to the Commission and from there to the Supreme Court. The draft law also provided for limited whistleblower protection in an advance over many other comparative laws in the region and indeed, in the world. Further discussion of its provisions is not possible at this point due to lack of space.

What needs to be reiterated is that while the draft FOI law may have been finetuned further, its importance, (if enacted), in relation to national developments occurring in the country since the draft was finalised in 2003, is indisputable. The continuing inability to obtain information on almost every aspect of the functioning of public institutions in this country is a lowering reflection on the negativity of its non-enactment. Compared to India, we should be thoroughly and roundly ashamed of ourselves.

Back to Columns