Almost but not quite there
In a government that was elected democratically, or 'pseudo-democratically' as was oft apparent in Sri Lanka, there was an imperative need for accountability to the people who used their franchise to vote in a leader to power. Therefore, the many layers of society, especially the journalists, usually find it incumbent upon themselves to be 'vigilantes' of the government, to ensure that the rights of the people are not tampered with, thus protected. In addition, the average citizen also finds the need to be true to conscience and perform his social responsibility towards the greater community by exposing the misdeeds and other elements which may cause embarrassment to the government. Such individuals are aptly referred to as whistleblowers.
Ceylontoday, 2015-03-05 02:00:00
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Almost but not quite there
In a government that was elected democratically, or 'pseudo-democratically' as was oft apparent in Sri Lanka, there was an imperative need for accountability to the people who used their franchise to vote in a leader to power. Therefore, the many layers of society, especially the journalists, usually find it incumbent upon themselves to be 'vigilantes' of the government, to ensure that the rights of the people are not tampered with, thus protected. In addition, the average citizen also finds the need to be true to conscience and perform his social responsibility towards the greater community by exposing the misdeeds and other elements which may cause embarrassment to the government. Such individuals are aptly referred to as whistleblowers.
By Shaahidah Riza
The elections that took place last month, which resulted in the transfer of power, were followed by a series of allegations against the former government where corruption in the very core of politics and politicians reigned supreme.
With the aim of making government actions transparent, Minister of Public Administration, Democratic Rule and Buddha Sasana, Karu Jayasuriya brought a private member's Bill to Parliament in 2010, when he was an opposition MP.
The elections that took place last month, which resulted in the transfer of power, were followed by a series of allegations against the former government where corruption in the very core of politics and politicians reigned supreme.
With the aim of making government actions transparent, Minister of Public Administration, Democratic Rule and Buddha Sasana, Karu Jayasuriya brought a private member's Bill to Parliament in 2010, when he was an opposition MP.
As pledged in the new government's 100-day programme, this Bill has again been introduced to Parliament, with a few tweaks.
However, despite the positive vibe that surround the implementation of such a legislation, there still remains many loopholes in the Bill, which need to be looked into before being endorsed as an Act. Ceylon Today managed to obtain a draft of the Bill, which is in circulation among the journalistic circles. However, according to Jayasuriya this Bill still remains a work-in-progress and is scheduled to be modified if deemed necessary and finalized later this month. He added the Indian legislation, which is similar to this Bill, will also be looked into, when the final draft is presented.
National Security
However, the Official Secrets Act No 32 of 1955, which was modelled similar to the English law (British Official Secrets Act of 1911), passed during the First World War looms over the Right to Information Bill.
Section 6 (e) of this Act, which states that "for any purpose prejudicial to the safety or interests of the State (who) obtains, collects, records, publishes or uses or communicates to any other person, any official secret or secret document or any information which is calculated to be or might be or is directly or indirectly useful to any enemy," is considered an offence.
However, the draft Right to Information Bill contains the following clause in Section 3: "The provision of this Act shall have effect not with standing anything to the contrary in any other written law, and accordingly in the event of any consistency or conflict between the provisions of this Act and such other written law, the provisions of this Act shall prevail."
Despite the above, there are many grey areas in a layman's point of view with regard to the Right to Information Bill.
Section 5 of the Bill, which denies access to information on the account of;
Would constitute an invasion of personal privacy of any person, unless the person has consented in writing to such disclosure
Disclosure of such information- (i) would cause serious harm to the defence of the state or its territorial integrity or national security; (ii) would cause serious danger to life or safety of any person; or (iii) would be or is likely to be seriously prejudicial to Sri Lanka's relations with any State or international organization, where such information was given by or obtained from such State or international organization, in confidence.
In the outset, the above clause in the proposed Bill is practical enough, as reflected by Executive Director of the Centre for Policy Alternatives (CPA), Dr. Paikiasothy Saravanamuttu, who said there will be exception to the law such as not compromising national security.
However, the rampant corruption that took place during the previous government can still be hidden and protected under the aforementioned clauses. The corruption that took place was not superficial, but carefully machinated to be protected by the law. Section 6 of the Official Secrets Act No 32 of 1955 mentioned above also provides the same protection which the previous government utilized to its optimum.
Observing discretion
It was reported that the Defence Ministry had released a press release on 6 February 2009 announcing that all public servants were expected to observe strict discretion over disseminating sensitive information that may be used by supposedly negative factors against national interests. It also stated, "Impotent leaders in political spheres and certain unscrupulous journalists have been making an absurd cry over not providing military casualty figures to them," adding that "Some of them are still engaged in a sisyphean effort to reduce the morale of troops and public faith on armed force by issuing exaggerated casualty figures and speaking ill of the armed forces commanders. Many of them boast about their connections with military personnel on the field and try to justify their claims."
It was reported that the Defence Ministry had released a press release on 6 February 2009 announcing that all public servants were expected to observe strict discretion over disseminating sensitive information that may be used by supposedly negative factors against national interests. It also stated, "Impotent leaders in political spheres and certain unscrupulous journalists have been making an absurd cry over not providing military casualty figures to them," adding that "Some of them are still engaged in a sisyphean effort to reduce the morale of troops and public faith on armed force by issuing exaggerated casualty figures and speaking ill of the armed forces commanders. Many of them boast about their connections with military personnel on the field and try to justify their claims."
Thus, it was reported that the previous Freedom of Information Bill presented by Jayasuriya in 2010 contained a clause similar to that of Section 5 of the Right to Information draft Bill, which included the phrase, "unless the disclosure of such information is considered to be vital in the public interest."
Such a clause, which is missing in the draft Bill, may still provide a legal safeguard to those corrupt politicians who wish to thrive on public resources.
A senior journalist and a political analyst has also reportedly voiced concerns about Section 5 (c) of the draft Bill which states, "The disclosure of such information could cause serious prejudice to the economy of Sri Lanka by disclosing prematurely decisions to change or continue government economic or financial policies relating to-(i) exchange rates or the control of overseas exchange transactions;(ii) the regulation of banking credit (iii) taxation (iv) the stability, control and adjustment of prices of goods and services, rents and other costs and rates of wages, salaries and other incomes."
He has reportedly suggested that a decision cannot be made without the consultation of trade unions. The term 'prematurely' could mean to say that the decision on aforementioned clauses will be already made, thus, denying right to protest to agitate for wage demand.
Speculation also arose with Section 31 of the draft Bill which states, "The granting of access to any information in consequence of a request made under this Act shall not be taken to constitute an authorization or approval granted by a public authority or the commission of the publication of such information by the person to whom the access was granted."
The obvious understanding of the above section is that, it restricts the media from publishing or exposing the information that would incriminate the government. However, when Ceylon Today contacted Coordinating Secretary to the President and Attorney-at-Law, Shiral Lakthilaka, he explained that it does not restrain the right of the media to publish information vital to public interest. However, the original source of the information must be respected and not be subjected to copyright. He also maintained that this Bill was still a work-in-progress.
Protection for whistleblowers
Another aspect which was found lacking in the draft Bill was the protection for whistleblowers. Whilst it highlights the duties of the public authorities and establishment of the Right to Information Commission, it does not in any manner or form highlight the rights and safeguards of the whistleblowers. The public servants in Sri Lanka who take that extra step to be honest in performing their required duties were subjected to dismissal or transfers in the previous government. This was especially evident in the education sector where teachers and other administrative officials who were severely inconvenienced by the then Education Minister Bandula Gunawardena as highlighted by the Ceylon Teachers' Services Union.
The draft Bill does not seem to contain any other seemingly unfair clauses. However, it needs severe revision that would protect the rights of the people, without granting the superficial power over the activities of the government, but something that is substantial and more detrimental to the existence of the government than its people.
The right to information is imperative. However the current government, despite its pledge to establish good governance, is made up of many who vocally supported the previous government and crossed over at the eleventh hour to the Sirisena faction. The misty-eyed hope of the pro-Sirisena populace is waning off already, due to the delay in implementing certain manifesto promises and taking in to custody of political criminals.
Thus, in many ways, this Bill if amended to include the adequate safeguards to all layers of society, will be the saving grace of this government.
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