Are we becoming pariahs in South Asia?

by Kishali Pinto Jayawardene

(August 16, Colombo, Sri Lanka Guardian) Bangalore, August 11, 2010 - India's Right to Information (RTI) Law which has been hailed as pathbreaking in the region has recently been in the centre of news in that country for the right as well as the wrong reasons.

Direct application of the RTI law

Since the enactment of the law in 2005, the information regime has been significantly expanded, public officers have been put more on the defensive in arbitrarily denying information and a pro-activist attitude of judges in the lower courts has resulted in the application of the law to the judiciary, in disclosing their assets to the public.

On the negative side, more than six RTI activists, including Amit Jethwa who exposed corruption by a member of parliament, have been killed in direct consequence of their determined efforts to legitimately obtain information under the RTI Law.

The direct application of this law is seen daily in the newspapers. For example, on Tuesday, August 11, Karnataka's Information Commissioner punished three public officials by enforcing a pay cut on their salaries due to their refusal to furnish information sought under the RTI Law. The matters in issue are of interest to Sri Lankans as they involve not only high matters of national security but rather, mundane day to day questions of good governance. In one of these cases for example, a resident had requested information pertaining to permission issued for road widening in his area. The request was made in January 2009 but even after an appeal was filed stating that the request had not been acceded to in February 2010, the relevant information had not been released.

RTI and the emergency period

At a different but connected level, a story currently dominating the Karnataka media is a somewhat interesting instance of a former magistrate who had embarked on a crusade under the RTI Law to compel government authorities to release information pertaining to the emergency period (1975-1977). Mr MG Devesahayam, who had served as a judicial officer during the emergency in Chandigarh, sent in an application under the RTI law early this year to the deputy secretary and chief information officer in the office of the Prime Minister, asking for information on fifteen questions.

These questions related to inter alia, the competent authority's duly attested records on causes leading to the declaration of the emergency and its nature, proceedings, recommendations and resolutions adopted by the union cabinet at that time, the names of the prominent political personalities detained, including in particular, information on social reformer and revolutionary Jayaprakash Narayan.

When asked as to his reasons for embarking on this crusade, Mr Devesahayam responded that '….the country is yet to get over the hangover of the dark days. All that is going on now, the corruption in the system has flowed from then." (see The Sunday Times of India, August 8th 2010).

The piquant element in this story of an information crusader however is that this information has yet not been released with all the relevant government ministries, from the office of the Prime Minister to the union Home Ministry to the National Archives of India, replying that they do not possess the relevant information requested. The chief information commissioner has also remained stoic on the matter, prompting pungent questioning by the Sunday Times as to why there is no government record of what is termed as India's 'darkest days.'
Protection of Whistleblowers

Overall however, when evaluating the positives and the negatives, the impact of the RTI Law in this country cannot be doubted. The Law applies to all States and Union Territories of India, except the State of Jammu and Kashmir, which is covered under a state law. Central governmental organizations located in Jammu and Kashmir are however covered by the ambit of the Law. In terms of its provisions, any citizen may request information from a 'public authority' (a body of government or instrumentality of the State) which should reply expeditiously or within thirty days. Among a number of duties imposed on government authorities in this regard, they are also required to computerize their records for wide dissemination and to proactively publish certain categories of information in order to minimise formal requests for such information.

Reinforcing this push for information, India's Cabinet this week, approved The Public Interest Disclosure and Protection to Persons to Persons Making the Disclosure Bill which protects the identity of whistleblowers. The draft law, which is to be presented in Parliament soon, was spurred by the murder of engineer Satyendra Dubey who fought against corruption in a major highway project. It enables the Central Vigilance Commission (CVC) to take action against any person revealing the identity of citizens who provide information about the misuse of governmental authority and funds and covers central, state and public sector staff.

There is provision for punishment of those who make frivolous complaints. The CVC itself has come under criticism by RTI activists who say that the Commission has not done all that it should to protect the identity of whistleblowers even under existing guidelines. The vesting of considerable authority and discretion in the CVC in this respect has been therefore a somewhat worrying development in their opinion, taken together with the fact that the Bill proposes that no court can interfere in a case or review a decision made by the CVC.
What is our comparative progress?

Debates wax fast and furious on this issue in the Indian media, in community discussions and in dialogues between the government and RTI activists. These debates are of immediate interest and relevance to Sri Lanka where parallel developments in respect of even the first step of enactment of a RTI Law lag far behind as contrasted not only to India but also, Pakistan, Bangladesh, Maldives and Nepal. At one stage, considered to be a leader in South Asia on using the law to bring about better governance, we are now inclined to be the most backward country in the region.

A RTI draft bill approved by the Cabinet more than five years back is still lying, we would presume, in the dustbin of the Legal Draftsman who has now been tasked with the far more imperative responsibility of drafting constitutional reforms aimed at perpetuating Rajapaksa rule, whether as Executive President or as Executive Prime Minister. Now we see a RTI law proposed to be tabled by the Opposition which, bereft of the blessings of the government, is sure to be shot down in the House. A Protection of Victims and Witnesses Bill is also lying dormant in the corridors of Parliament.

Meanwhile, development projects continue to be engaged in by this administration and its key figures with an astonishing lack of accountability and transparency। Such regression appears not to be of any concern to major business leaders who unconscionably profess to be happy so long as the stock market thrives.

This is the sum total of principled governance in this country today.