The Right to Information (Sanjana Hattotuwa 4th February, 2002)
"Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated." - UN General Assembly Resolution 59(I), 1946 -
In Sri Lanka and elsewhere, there has always been some tension between the need for openness and the desire for secrecy. The public has a legitimate interest in being kept informed about the activities of government, while government has a legitimate interest in withholding information in certain circumstances. Every government must indeed maintain a level of secrecy, but the contention has always been on the fulcrum that balances secrecy and civil liberty.
Globally, the advent of Information Communications Technology has led to diminished public tolerance of government secrecy. With this greater awareness of the public in the affairs of government comes the realisation that in a parliamentary democracy such as ours, those elected to office to represent constituencies often do not fulfil their mandate. Voters who are tired of feeling left out of important policy decisions that fuel present moves towards a culture of voluntary disclosure by government and public authorities.
The importance of the Freedom to Information
Information is power. It is predictable, therefore, that those in authority will seek to manipulate others through the control of data. However, all information in a democratic society should be freely available unless there are specific, well-formulated reasons for withholding it in the interest of security.
The importance of freedom of information functions at a number of different levels: in itself, for the fulfilment of all other rights and as an underpinning of democracy. The importance of information is especially pertinent in Sri Lanka, where a protracted ethno-political conflict has created a body politic that is sceptical of information (because so little of it can be trusted) and yet blindly ascribes to communitarian hagiography that passes as history (for the want of better, more accurate information).
It is as an underpinning of democracy that freedom of information is most important. Information held by public bodies is not only for the benefit of officials or politicians but for the public as a whole. Unless there are good reasons for withholding such information, all interested parties should be able to access it. More importantly, freedom of information is a key component of transparent and accountable government. It plays a key role in enabling citizens to see what is going on within government, and in exposing corruption and mismanagement. Transparent and open government is also essential if voters are to be able to assess the performance of elected officials and if individuals are to exercise their democratic rights effectively, for example through timely protests against new policies, or by using their vote against candidates who have indulged in undemocratic activity.
Freedom of expression and access to information is a fundamental right and
must be held as a cornerstone of democracy. In its absence, government can,
and often does, behave with impunity. It is argued, however, that it is not
an absolute right - the International Covenant on Civil and Political Rights
(ICCPR) for instance, specifies certain permissible constraints. One of these
is the right of the state to withhold information 'for the protection of national
security or of public order, or of public health and morals'. This is irascibly
vague and provides many loopholes for governments to use this wording as a basis
for restricting information that is inconsistent with their ambitions. For instance,
it is now widely recognised that the Asian financial meltdown of the late 1990s
was due in part to draconian censorship that prevented reporting on government
corruption. (Indonesia and Malaysia are two good examples).
The public's right to know is an intrinsic part of informed public debate, which has traditionally been dependent on the freedom to receive and impart information without government interference. However, it may also be argued that this does not mean a right to receive any type of information from the government. It is of paramount importance that any restrictions on information or expression regarding security matters must designate in law only the specific and narrow categories of information absolutely necessary to protect a legitimate national security concern. A threat to national security can be defined as 'any expression or information that is intended to incite imminent violence, or is likely to incite violence. In addition, there must be a direct and immediate connection between the expression and the likelihood or occurrence of such violence'(1) .The public interest in having information at all times must remain a priority consideration in any FOI Bill, and that any denial of this right be subject to independent review.
Along these lines, in a seminal judgement in 1982, the Indian Supreme Court held that, 'The concept of an open Government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression disclosure of information in regard to the functioning of government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands'(2). In this particular case, the Supreme Court held that where the non-appointment of an additional Judge for a further term was challenged, correspondence between the Law Minister, the Chief Justice of the High Court, the State Government and the Chief Justice of India should be disclosed.
Peace and the right to information
Media reportage of the ethnic conflict in Sri Lanka is often tragi-comic. Accurate reporting of the conflict is hampered by restrictions on access to the Northeast, and a reliance on statements by the government, military or LTTE, which are most often misinformation or propaganda. This is comic to the extent that the public, whilst realising the questionable veracity of news on the conflict, nevertheless continue to digest biased reportage as the 'Truth'. It is tragic to realise that it is this very inability to investigate the true nature of events that has led to an ever widening schism between the communities of Sri Lanka.
While recognising the need for confidentiality in some respects, the peace process in Sri Lanka must be a transparent one. A peace process enshrouded in secrecy will only serve to fuel extremist opinion. The plethora of conspiracy theories in Sri Lanka also stem from a dearth of accurate information regarding the peace process.
"The Sri Lanka people bear the human and financial cost of the conflict, but government and military policies and practices regarding the conflict are inaccessible to the public and remain largely shielded from public scrutiny and challenge, precluding citizens from participating in a meaningful way in promoting a solution to the conflict. The Sri Lanka people are thus unable to pursue their legitimate right to monitor the peace talks, challenge either party for lack of political will or commitment to peace, or even to form opinions and political loyalties in an informed manner."(3)
It is also important to recognise that the freedom to information must not be a tool that is manipulated for the gain of one stakeholder. For instance, during the 1994-1995 peace talks, despite the fact that the letters exchanged between Prabhakaran and Chandrika Kumaratunge were confidential, they were often printed in Sri Lankan newspapers or in LTTE publications. When the government felt as though the LTTE was stalling or spreading false information about the talks, letters that vindicated the government's stance would appear in newsprint. Similarly, the LTTE published some letters that portrayed its sincerity in the peace process. In the end, the exposure of the correspondence to the media only served to undermine the efforts to build trust between the two parties. As expectation began to overshadow the progress of the talks, letters were drafted and released to pre-empt and to counter potential public backlashes. In this way, the letters and the peace process became increasingly polemical, and drained the peace process of urgency and importance.
The freedom of information, coupled with sound media ethics can buttress the peace process in Sri Lanka by nurturing journalism of a stature that encourages the process of healing and reconciliation. While the process of negotiations and future peace talks must be as transparent as possible to allay any fears and doubts of the legitimacy of the process, stakeholder opinion and interests must be portrayed in a dispassionate light that lends itself to critical examination. The public's right to know is predicated upon the belief that the free flow of information helps inform public opinion and debate. The government must, in the present instant, make sure that its interests are made public and its position regarding the future course of a resolution to the conflict made clear. The government must also encourage the process of inter-communal understanding by highlighting the real needs and aspirations of those affected by the conflict.
The need of the hour
As much as the right to information is a cardinal principle of a functioning democracy and a principle tenet of good governance, the present government must be under no illusion about the difficulty of introducing FOI legislation in Sri Lanka. The Law Commission in its Report on Freedom of Information in 1996 pointed out, 'the current administrative policy appears to be that all information in the possession of the government is secret unless there is good reason to allow public access.'(4) In light of a public administration predicated on a culture on non-disclosure, the very nature and quality of public discussion is significantly impoverished without the nourishment of information from public authorities. To guarantee freedom of expression without including freedom of information would be a formal exercise, denying both effective expression in practice and a key goal which free expression seeks to serve.
Timidity has no place in the formulation or the enactment of an FOI Bill in
Sri Lanka. The via media between the art of the possible in the
realm of politics in Sri Lanka and a proactive, imaginative and forward thinking
FOI Bill should be weighted in favour of the latter and not the former. Donald
Horowitz writes of moderates, who time and again, in having their moderate opinions
attacked and shouted down by extremist fringes, becoming extremists themselves
in a bid to make their voices heard. There is another facet to this observation.
Many of those engaged in intellectual endeavour in an atmosphere of protracted
ethno-political conflict are often shackled by their own fears to propose strategies
that creatively engage head-on with the status quo. In this light, it is important
to remember the words of the mission statement of 'The Economist' -
'...to take part in a severe contest between intelligence, which presses forward,
and an unworthy, timid ignorance obstructing...progress'.
The need of the hour is for government (and indeed civil society) to realise the undeniable importance of the freedom to information. It must also enact the proper legislation that enshrines this right. At the same time, it must not allow such legislation to exist merely on paper. The existence of rules that establish mechanisms for obtaining information cannot be assumed to work, even if they have constitutional status. The problem is not what the law says, but the extent to which it is being implemented. To animate the culture of any such legislation will require great political courage and skill, especially in a country not used to a free-flow of information. If one of the stated aims of the present government is good governance, the right to information has to be recognised as a cornerstone of any such reform. It is necessary to promote a culture of accountability, and also to expose malpractice and corruption. There is no guarantee that the mere introduction of FOI legislation will overnight change the political culture of Sri Lanka. Nevertheless, the accessibility of information pertaining to public authorities is a guarantee that public authorities will be held accountable for their decisions.
There is some consensus, even among those who most vigorously support the right to information, that there are categories of information that will always require protection and will never be part of the public domain. But this only makes up for a small portion of the data that is part of government. A key issue in this regard is how to determine the criteria that will guide decisions on what data will remain classified and what will be publicly released. A change of mindset is necessary here - from a militaristic possession of information, to a more benevolent government, which treats all information as a catalyst that informs public debate and opinion.
However, the mere creation of websites of various arms of government will not help in access of information in Sri Lanka. Even if we ignore that many of these websites have very little information on policy making or on the decision making processes of tenders etc, such websites cannot be accessed my the majority of Sri Lankans, who neither have the connectivity to do so nor the language skills necessary to read and understand a webpage in English. What is needed in Sri Lanka is the right to information entrenched in every single ministry and public authority - a culture that facilitates the disclosure of information by handing out relevant information to citizens in the vernacular. The public in turn must learn to translate information into knowledge, and thereafter, how to use this knowledge to best effect.
Also alarming is the belief that the West is a tabernacle of faultless government, where FOI legislation has been passed without any hindrance. This has not been the case in the US, where many Federal authorities have been very reluctant to declassify documents despite efforts to expedite the process by former President Bill Clinton. In the UK, Tony Blair, though overtly in favour of the Freedom of Information has nevertheless made the actual application of legislation difficult. These should not be taken as excuses for Sri Lanka to be pessimistic or lackadaisical in its own legislative thrusts for the Freedom of Information. While lessons must surely be learnt from the experiences of these countries, the government must realise that there really is no alternative to the introduction and application of FOI legislation.
What the present government must also realise is that democracy is quintessentially about the adherence of government to the will of the people. This basic accountability is impossible unless the present government not only champions FOI legislation, but also commits itself to open and transparent governance. What is needed now is a spirited, informed public that creatively and constructively engages with government in policy making and a government which treats the right to information as the bedrock of good governance working together to forge a better future for Sri Lanka.
(1)The Johannesburg Principles, ARTICLE 19, 1995
(2)S.P. Gupta v. President of India and Others  AIR (SC) 149, p.234 quoted in Freedom of Information as an Internationally Protected Human Right by Toby Mendel, Article 19
(3)Global Trends on the Right to Information: A Survey of South Asia, Article 19, 2001
(4)Recommendation 1 of the Law Commission Report on Freedom of Information, 20 November 1996, Annex VIII.
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