11 May, 2016
By Venkatesh Nayak
The Supreme Court of Sri Lanka has recommended a slew of changes to the Right to Information Bill (RTI Bill) tabled in Parliament. Readers will remember that the Government piloted a Bill in April 2016 for giving effect to the citizens' fundamental right to access information from government guaranteed by Article 14A of the Constitution.
Under the constitutional scheme in Sri Lanka, a Bill tabled in Parliament may be challenged by citizens on grounds of violation of the Constitution before the Supreme Court before it is enacted. Post-enactment judicial challenge to a law is not permitted under the Sri Lankan Constitution.
Disposing of four petitions filed by advocates and social activists in April, the Supreme Court of Sri Lanka held that the RTI Bill violated various provisions of the Constitution on four counts and if pressed in this form would require to be enacted by a special majority of Parliament and also supported by the people through a Referendum. However the Apex Court suggested remedial measures to overcome this difficulty so that the altered Bill could be enacted by Parliament through a simple majority. The grounds for holding some portions of the Bill unconstitutional and the rectification suggested by the Supreme Court are summarised below:
1) The Apex Court said, Clause 5(1)(j) of the RTI Bill which exempts access to information to prevent the commission of contempt of court was inadequate in terms of the reasonable restrictions on RTI imposed under Article 14A (2) of the Constitution to protect the independence of the judiciary. It recommended that the phrase: "or prejudicial to the maintenance of the authority and the impartiality of the judiciary" be inserted in Clause 5(1)(j) in order to align it with Article 14A(2). Readers may recollect that Article 14(2) was inserted in the Constitution through the 19th Amendment;
2) The Apex Court said, Clause 9(2)(a) of the RTI Bill which requires a Minister to furnish information about developmental projects under his/her charge to a "member of the public", upon receiving a written request, was unconstitutional. Holding that RTI was a fundamental right guaranteed only to citizens of Sri Lanka, the Apex Court recommended substitution of the phrase- "member of the public" in Clause 9(2)(a) with the term "citizen" in order to align it with the constitutional provisions;
3) The Apex Court said, Clause 19 of the RTI Bill which deems the members, officers and all employees of the proposed RTI Commission as "public officers" within the meaning of that term under the Penal Code violated various provisions of the Constitution as well as established precedents regarding similar bodies set up under other accountability seeking laws. The Apex Court recommended that the phrase- "public officers" in Clause 19 be substituted with the phrase- "public servants" in the manner of the Human Rights Commission Act and Bribery Act of Sri Lanka;
4) The Apex Court said that Clauses 43(j) and 43(k) of the RTI Bill which bring all higher educational institutions including private universities and other institutions providing technical and vocational education under the definition of "public authority" and therefore make them directly responsible to respond to people information requests violated various provisions of the Constitution including Article 14(A). The Apex Court recommended restricting Clauses 43(j) and (k) to cover only such educational institutions that are "established, recognised or licensed under any written law or funded, wholly, or partly by the State and/or a public corporation or any statutory body established or created by a Statute of a Provincial Council".
The Government of Sri Lanka has declared its willingness to work on the recommendations made by the Apex Court.