Sri Lankan Court Decision on RTI Legislation Analyzed

11 May 2016

Analysis has continued on the Sri Lankan Supreme Court’s pronouncements on the draft right to information law, with the most detailed analysis saying the decision “held little surprises.”

So wrote Kishali Pinto Jayawardene, a lawyer and human rights activist, who said: “In the main, the ruling did not pose formidable challenges to the basic integrity of the Bill. However, it did reflect a degree of judicial conservatism therein.” (See article on the ruling.)

Jayawardene examined the court’s arguments in finding some provisions unconstitutional and others acceptable. She criticized media reports such as one in The Indian Express which said the ruling “will prevent premature disclosures on the negotiations to be held between Sri Lanka and India on an Economic and Technical Cooperation Agreement (ETCA).”

Jayawardene responded:

Interestingly, the Court summarily dismissed the claim that the RTI Bill’s bar on premature disclosure of overseas trade agreements and financial or economic policies offended transparency in government. In doing so, it cannily quoted Indian jurisprudence to the effect that the right to know cannot be absolute. Instead it must be balanced with competing interests. Thus, there would be certain classes of documents requiring protection, including pending trade negotiations or exchange rates and the regulation of banking. Otherwise, individuals may unfairly benefit from that knowledge in advance.

To be clear, it is only ‘premature’ disclosure that may be refused. In any event, even though this is (conveniently) missed by some, the information may be compelled under the public interest override. Thus, for example, it is extravagant to say that the Court’s ruling means that information requests cannot be filed in regard to information pertaining to the proposed Economic and Technical Cooperation Agreement (ETCA) between Sri Lanka and India. On the contrary, such requests can be lodged. The duty of determining if the public interest merits the disclosure is on information officers and the Right to Information Commission with a judicial hearing at the final stage.

She also said that frantic cries” raised by certain commentators and misinformed political pundits” that the Central Bank of Lanka is exempted from the RTI Bill are “totally without any foundation.”

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