Kath Noble

Let the people have what’s theirs

Posted in The Island by kathnoble on March 3, 2010

What to look for in the proposed Right to Information Act.

We don’t often have much in the way of good news to report. These days, a vast amount of ink is wasted on what are no more than petty issues – who will contest where, in alliance with which parties and under what symbol. These are supplemented by the all too common stories of accidents, murders and suicides, the occasional abduction and a whole lot of double dealing and crookedness. The best we can really expect is an announcement that a trade union has decided to postpone its strike or that the Army has found explosives before they could be used. Life can get pretty depressing.

That’s why I was pleased to read of the efforts being made by the Ministry of Justice and Law Reforms to prepare a potentially transformative bill for introduction to Parliament after the election. I am talking here about the Right to Information Act.

There was a time when such legislation was considered the privilege of developed countries. People thought that governments couldn’t be open and successful at the same time, so those states that had a lot of work to do to pull themselves up would have to maintain a culture of secrecy. It was seen as just another right to be curtailed for the greater good.

This is no longer the case. While only 22 countries had passed bills like the Right to Information Act in 1995, by 2005 that number had gone up to 70.

Even countries that are not democracies have accepted the idea of openness. China passed its version of the legislation the year before last. India, a nation that is home to 500 million of the world’s one and a half billion poor people, and which might therefore be expected to have plenty to keep its bureaucrats busy already, took the plunge back in 2005. Sri Lanka was starting to look rather backward in the face of what is clearly a global trend.

Openness is good for the economy, it is now widely accepted. We need to involve people in the governance process in order to address corruption and the mismanagement of public affairs that costs developing countries so dearly.

It’s not just about passing a law, of course. As in most things, implementation is the key to success.

Research shows just that, as was made obvious by a review of the Indian experience that was published a few weeks ago. It was overwhelmingly positive about the impact of the legislation, while concluding that much remained to be done.

The main problem is oddly simple. Only 15% of the population knows that there is any such thing as the Right to Information Act. That drops to 4% of the poor, according to some estimates.

After decades of regarding information on what they’re up to as the property of the State, bureaucracies need to be pushed to change. Officials in India have tended to ignore requirements for proactive disclosure. In one state, over 80% of local government offices make people file requests for information that the law obliges them to publish as a matter of course. Some 75% fail to display information explaining how to file requests, while the vast majority of officials assigned to deal with the public are unhelpful or even hostile. Half of them don’t have a copy of the legislation.

The media has played an important role in raising awareness, but this has brought only limited results in a country with such high rates of illiteracy. Curiously, journalists have rarely made use of the law themselves.

Sri Lanka could well do better. However, this would mean planning a campaign.

This may seem rather unlikely in the circumstances. The Government hasn’t even initiated a public debate on the contents of the legislation. A report in another newspaper some weeks ago indicated that lawyers had been working on a draft until Parliament was dissolved. Why they had to abandon the task just because an election had been called remains a mystery, as does much else about the Right to Information Act. This is hardly in the spirit of the law.

There is a massive gap between rhetoric and action in Sri Lanka. Inspiring words such as those spoken by Mahinda Rajapaksa when he was first running for the presidency about a ruler being no more than a temporary trustee and not the owner of the future of his people’s children have rather lost their appeal. We don’t believe politicians any longer, and for good reason.

Ranil Wickremasinghe’s administration prepared a Right to Information Act during its brief spell in power, but it was never made into law. It isn’t clear what has changed. This is surely one of the many things that the public should be told if the Government is really serious about openness.

Meanwhile, it would be as well for the rest of us to start talking about it. Pressure always helps.

The Indian version of the legislation was discussed for months before it was passed. More than a hundred amendments were made in the process.

Criticisms of the original draft focused on the excuses it allowed the State to employ to deny requests for information, from blanket exemptions for anything considered a risk to national security or even just the national interest to equally unspecific and no less worrying justifications for concealing information on the basis that it might require excessive resources to find and hand over. The final bill made these rather narrower and more clearly defined.

The other key concern was the lack of an upper limit on the charges that could be imposed.

This too was solved, but the review of implementation demonstrated some of the hidden costs involved in filing requests for information. Although the standard fee is only Rs. 10, with even this being waived for the poor, the process is estimated to require many times this amount. More than 25% of people using the Right to Information Act have to make at least three visits to a government office. That requires transport and in many cases the loss of daily wages.

One of the most interesting elements that was introduced to the Right to Information Act during the public debate is a clause setting out the responsibility of officials. If they fail to complete the work during a fixed period, they are personally liable for a fine.

This is quite an innovation, and it is one of many. India has positioned itself as a leader in the world of openness.

The Ministry of Justice and Law Reforms could usefully take note of the other major difficulty that has been experienced in India. As well as knowing that there is a Right to Information Act, people need to have confidence that the oversight mechanism works. Unfortunately, surveys have found that the majority believe that it is a waste of time and energy to appeal decisions. They consider the authorities to whom they would have to turn too close to the bureaucrats who denied their requests for information in the first place. Even state information commissioners are often regarded as worryingly unsympathetic, many of them being retired public servants. The process is lengthy and delays are the norm.

The more we study the experiences of other countries, the better for Sri Lanka. Then when Parliament comes to review the legislation, people will be sufficiently informed to raise questions.

I sometimes fall into the trap of wondering if politicians will ever do anything useful, watching their exploits. It is at such times that I try to think back a year to when Prabhakaran was still lurking in a dark corner of the island, plotting death and destruction in his ill-fated quest for Eelam. The country has changed a lot since then, which is an excellent reminder of how things that once seemed impossible can be done with a little determination and focus. We really ought to be more hopeful.

As for good news, the Right to Information Act certainly qualifies. It just needs to be put into practice.

This article was published on the editorial page of The Island on March 3rd, 2010. The internet version can be accessed here.

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Defending the public interest

Posted in The Island by kathnoble on October 22, 2008

How the Supreme Court is exceeding its mandate.

The Supreme Court has been awfully busy of late. Hardly a week goes by without a major judgement confirming the ability of the legal bosses of this country to trump all other powers that be. It’s exciting. An independent and proactive judiciary is necessary for effective governance. But it isn’t sufficient. The Supreme Court must also demonstrate that its members have a good understanding of what actually constitutes the public interest.

Everybody is celebrating the successes of a number of recent decisions aimed at putting a stop to the abuse of power by elected representatives and public officials. And quite rightly so.

The Battaramulla land case ruling was truly a joy to behold. I have only set foot in Water’s Edge once, but I found it a thoroughly depressing experience to see all that beautiful land so close to the heart of Colombo taken over and blocked off to all but the elite class – I certainly wouldn’t be able to afford more than a small glass of fruit juice once a year.

The issue was much bigger, of course. Filling up wetlands is potentially dangerous in a rapidly urbanising area, and Colombo is known to be prone to floods. And it is the city’s poor majority who suffer the most when the rains come, for they are most likely to stay alongside waterways and their houses are usually less robustly built. They also tend to have fewer means of cleaning up and replacing damaged property. Preserving wetlands is a vital service for all residents, but particularly for the only too easily forgotten poor majority of Colombo. The Supreme Court judgement was therefore a real victory for the public interest.

It was also clearly important for the warning it sent to those at the top of the Government. Transgressors will eventually be held to account, and nobody is beyond scrutiny any more. That Chandrika Kumaratunga has to pay a fine is entirely appropriate, if obviously still a little disappointing when it comes all these years after the misdemeanour in question was committed.

The Lanka Marine Services Ltd. privatisation verdict was another groundbreaking achievement in defence of the public interest. The Government lost a nicely profitable venture there, not to mention prime land, vital tax revenue and so on. The Ceylon Petroleum Corporation has an impressive debt burden that can only have grown as a result of the bad deal, and this is one of the reasons fuel prices are not being cut in response to the downturn on the international market.

It also set an example that may now be followed to rectify the losses to the State from other doubtful sell offs. Privatisation is known everywhere in the world to be dogged by corruption, and this country is no exception. There is already a case pending on the divestiture of the Sri Lanka Insurance Corporation, but other fields deserve investigation too.

So there are plenty of reasons to feel happy. The Supreme Court has shown itself to be truly capable of fulfiling its role of keeping a check on the executive and legislative branches of the State. Judicial oversight has also intervened to prevent a Presidential term being extended arbitrarily, Tamils being sent out of Colombo for lack of a sufficiently good explanation for their presence, and so many other important things. It is even starting to push for action on the long-awaited nominations to the Constitutional Council.

All of these are grounds for celebration. And it is particularly glorious at a time when a lot of people are worried about the disintegration of the rule of law in this country. The Supreme Court gives them real cause for hope.

But something is amiss. The Supreme Court has also demonstrated a tendency to want to see executive and legislative power replaced with or indeed crushed by judicial might. Government decisions that appear to be questions of policy rather than constitutional law are being challenged. It doesn’t seem right. This might not be such a worrying prospect if the Supreme Court were reliably seen to be acting in the public interest, for elected representatives and public officials aren’t known for their meticulous record on that score. But a number of other recent decisions have appeared a little unconvincing.

I first started to wonder about this on hearing of the Supreme Court ruling on the electricity tariff structure. According to reports, the Consumers Association filed a petition against the charges being levied for domestic consumption on the basis that the fundamental right to equality of those people who use more electricity had been violated – the Ceylon Electricity Board is billing them at a higher rate per unit than those people who use less. And the Supreme Court agreed. The Ceylon Electricity Board was instructed to revise the electricity tariff structure, and the new version is to be submitted for approval tomorrow.

The public interest doesn’t look as if it is being served here. The electricity tariff structure clearly has its flaws, but it seems rather odd to suggest that charging people who have microwave ovens, deep freezers, washing machines, widescreen televisions and air conditioning units at a higher rate for their electricity is somehow an infringement of their fundamental rights. If there is any worry about equality here, it must surely be in favour of those who can’t afford to buy such luxuries. People who own a lot of electrical appliances are by definition richer than those whose houses contain no more than a few lightbulbs and a refrigerator, and there is every reason to make them pay more for their electricity. How much is an open question.

The Ceylon Electricity Board had a go at drafting a new schema last month, based on the instructions given. But it didn’t meet with the approval of the Supreme Court. The Government must provide a subsidy or transfer the expenses to commercial users, for increases in rates for domestic consumers have been ruled out. An order was issued to restrain the Treasury from making due payments to the Ceylon Electricity Board until it comes up with something acceptable to the Supreme Court. Serious measures are being employed to force compliance.

The Government really ought to be making these choices. The Ceylon Electricity Board is already losing money, and increasing subsidies isn’t likely to be an option – funds would have to be diverted from somewhere.

Industry bosses might file the next petition in the Supreme Court, arguing that they have a fundamental right not to shoulder the burden for rich consumers. And maybe they will convince the judges. Businesses would in any case use tariff increases as an excuse to up the prices of their goods and services, and this would affect people who aren’t even connected to the grid. This group is doomed anyway, of course – the rate at which electrification takes place and the connection fee that has to be paid depends to a great extent on how fast the losses of the Ceylon Electricity Board can be stemmed. And these are the only people we can be sure won’t ever find their way to the Supreme Court to argue their case.

Reading the letters pages of this newspaper, it would be easy to think that the majority of people in the country were affected by this problem. But it is not the case.

The Supreme Court really began to worry me when it announced the result of the petition against charging for shopping bags. I’m not sure who took it upon themselves to challenge this, but it hardly matters. The Central Environment Authority launched the initiative in order to discourage the overuse of plastic, and they had managed to get the cooperation of five leading supermarket chains – Keells Super, Cargills Food City, Magna, Laugfs and Arpico Supercentre.

It was a good example of the State acting in the public interest. Everybody knows that plastic takes an awfully long time to degrade, and garbage is known to be a significant problem in the city. The fewer shopping bags people use, the less money is spent on clearing them up and the better for their environment. It is blindingly obvious that this is good for everybody, above all for those who are most likely to have a rubbish dump for a neighbour. Aesthetics is only one element of it, for there are health issues to be considered too. Again, this is much less of a problem for the rich. I don’t think the poor majority of this country do their shopping at these places in any case – nobody I see in the Rajagiriya branch of Cargills Food City looks as if they would struggle to pay Rs. 5 for a large shopping bag. And if they did find it too much of a strain on their purse, they could easily bring their own containers or reuse ones previously acquired. That was the point.

I was so bemused that I went to take a look at the Constitution, just to check to see whether perhaps somebody had seen fit to include ‘right to be given an unlimited number of free shopping bags’ in the list of fundamental rights, alongside ‘right to freedom of speech’ and ‘right not to be tortured’. No, it wasn’t there. So the question of why this had to be stopped remains unanswered.

The Supreme Court might well be right about all of this, and far be it for a mere journalist to suggest otherwise, but then its members clearly haven’t properly explained themselves. It is a pity, because celebrating their judgements in support of the public interest was a lot of fun.

This article was published on the cover of the Midweek Review of October 22nd, 2008. The internet version can be accessed here.

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On global standards for public inquiries

Posted in The Island by kathnoble on May 14, 2008

Why the international observers of the Commission of Inquiry into serious human rights abuses should not have given up.

The international observers of the ongoing public inquiry into serious violations of human rights left in a huff a couple of weeks ago. They claimed to have done their best for the country. Global standards simply weren’t being met and proposals to get the process back on track had been repeatedly ignored. It was a problem of political will, they insisted. Government just didn’t seem to be very interested in getting to the bottom of these incidents. The eminent persons haughtily declared that nothing more could be achieved in such circumstances and pushed off home.

It only encouraged those people who like to think that there is some kind of international conspiracy at work here. For the decision to walk out was completely unwarranted.

The eminent persons did uncover some problems. They pointed out that provision for witness protection was totally inadequate. They were worried about the conflict of interest that would probably arise with the use of lawyers from the official bar who might also have been involved in giving advice to government bodies on the original cases. They were concerned that the work was taking too much time and that part of the state apparatus wasn’t cooperating fully. They particularly didn’t approve of the decision to start proceedings with a period of confidential investigations before moving onto open hearings. And they complained that there simply wasn’t enough money to do the job properly. The international observers pressed for action on all of these points in their quarterly reports and underlined the main issues in their final statement.

Some of these obstacles sound worse than others. But we needn’t delve into the details now. Plenty of newspaper space has already been devoted to claim and counterclaim. Let us just assume that the criticisms are all entirely reasonable. They might well be.

It still doesn’t seem to add up to a pointless exercise that should be dropped at once. Progress is clearly being made. Evidence is being presented in a public forum in which advocates for all sides appear to be doing their best to argue every single point. Some people do now feel able to tell what they know either with confidence in whatever security they have been offered by the authorities here or from the safety of another country. Attention is being focused on the process. It obviously isn’t perfect. But this flawed attempt is surely better than the alternative of just forgetting all about the crimes that have been committed. And those who are presiding over the effort to bring the truth to light and maybe also the perpetrators to justice deserve to be given every possible chance to prove themselves by coming to a useful conclusion. Sixteen incidents to be probed in the middle of such a bitter conflict were always going to amount to a heavy burden for them.

The international observers must be well aware of how public inquiries into broadly similar incidents have progressed elsewhere. Global standards apparently don’t refer to what other countries do but to what might be possible in an ideal world.

British experience shows this only too clearly. Bloody Sunday provides a particularly compelling example of how states tend to respond to allegations of human rights abuses by their security forces.

In 1972, British troops opened fire on a peaceful demonstration in Northern Ireland. Fourteen people were killed and a further thirteen injured. Half of them were teenagers. And a fair number were shot in the back as they ran away from the scene. The massacre took place in full view of thousands of local residents and was also witnessed by a number of foreign journalists. Protests engulfed the country and before long spread around the world too. The British government was deeply embarrassed by the attention that the incident brought to its internal problems and quickly decided to set up a public inquiry.

It was a whitewash. The Lord Chief Justice completed the investigation within ten weeks, and his final report of just a couple of dozen pages was published a few days later. The official line was upheld. Marchers were falsely accused of being in possession of nail bombs and having shot at the soldiers, while the army was merely upbraided for making a few mistakes in what were misleadingly presented as well-intentioned attempts to arrest troublemakers. 

It was far from a proper process. The Prime Minister made it clear from the outset that they were fighting a propaganda war as well as a military battle in Northern Ireland. Officials suppressed the fact that evidence given by the soldiers accused of wrongdoing didn’t tally with statements that they had made to military police in the immediate aftermath of the shootings. Forensic evidence that called into question their version of events wasn’t investigated. Army radio messages were ruled inadmissible. And the soldiers who were present but not implicated in the massacre had their affidavits rewritten by superior officers and weren’t called to the hearings to be questioned on them. The Lord Chief Justice claimed that nothing useful could be learnt from more than five hundred witnesses whose testimonies had been collected by the organisers of the march.

The British government finally accepted that this was wrong long after the peace process had got underway. In 1998, Bloody Sunday was made the subject of another public inquiry by a British Law Lord working in collaboration with senior judges from Australia and Canada.

It has taken rather longer than the original effort. Initial investigations were only completed in 2000. Hearings then went on for the next five years and the final report isn’t expected to be released until the end of 2008. It has cost about Rs. 40 billion. Truth has been given precedence over justice too. Witnesses have effectively been promised immunity from prosecution, so there is now almost no chance of anybody being held to account for what happened. And the terms of reference didn’t include looking into the manipulation of the earlier public inquiry.

The British establishment still hasn’t been keen to collaborate. Guns used in the shootings were destroyed. Hundreds of army photographs were withheld along with video footage taken from a military helicopter. Various other documents were denied. The Defence Ministry claimed that it couldn’t even identify the soldiers who were present in the area at the time never mind work out exactly what happened on the day of the massacre. Bloody Sunday hasn’t been properly acknowledged by the state in more than 36 years.

Britain consistently refused public inquiries into later incidents in Northern Ireland. The British forces were often accused of the rather less obvious crime of collusion with paramilitaries in the murder of Republican militants and prominent Catholics. A couple of cases stand out. In 1989, Republican solicitor Pat Finucane was shot dead in front of his family in Belfast, while Catholic lawyer Rosemary Nelson succumbed to a car bomb outside her Lurgan home in 1999. Both had worked on high profile cases and had proved troublesome opponents in court. The British secret services were suspected of running agents who had been actively involved in planning these and many other assassinations throughout the 1980s and 1990s. It all happened behind the scenes but was at the same time well known.

The United Nations Special Rapporteur was one of the many people who were left disappointed after calling for a public inquiry.

The Deputy Police Chief of an English district was sent out to investigate instead. It took him fourteen years to come to any conclusions. The British security forces were undoubtedly guilty as charged, and prosecutions of the officers responsible should be launched at once. But that was it. In 2003, the British government reluctantly agreed to publish a fifteen page summary of his report that in full amounted to more than 3,000 pages with almost 200 floppy disk attachments. Secrecy was said to be necessary to avoid prejudicing any future legal action against specified individuals. Except that there hasn’t been any. In 2007, the British government finally decided not to move forward with the cases of the officers implicated in the murder of Pat Finucane. 

The Deputy Police Chief also reported serious attempts to mislead and obstruct his work. The British agent at the heart of the allegations was warned the night before he was due to be arrested so that he could flee the country. Files were lost and subsequently discovered to have been shredded. The Deputy Police Chief even had his office burnt down at one point.

It certainly didn’t dampen the demand for a public inquiry. Britain was forced to shift its position on this issue when the peace process was nearing its end. In 2002, a Canadian judge was allowed to review the evidence collected to date and concluded that public inquiries ought to be conducted into a number of incidents including the murders of both Pat Finucane and Rosemary Nelson. It was a case of better late than never. In 2005, the British government eventually decided to go ahead with this work after pushing through new legislation transferring all powers over public inquiries to the Prime Minster. He alone now appointed the members, set the terms of reference, decided what should be made public and had the power to terminate the process. Parliament could do little about it. The Canadian judge commented that this would make any meaningful public inquiry impossible and urged his compatriots to refuse to sit on all bodies set up under the new arrangement. 

In 2005, the Rosemary Nelson inquiry got underway but three years later still shows no sign of reporting. Pat Finucane’s family refused to cooperate with the authorities and it has recently emerged that the British government quietly decided to stop preparations for an inquiry back in 2006.

Collusion remains a very murky episode in the history of the British state.

Global standards sound a bit less widespread now. The eminent persons would never be invited to oversee public inquiries in most other countries. But flaws are as much a part of those experiences as they are proving to be here.

The international observers were right to raise their concerns forcefully. For that is what they were invited to do. The fact that others have made even worse mistakes in similar circumstances is no reason to accept them here. But they surely don’t believe that people are going to be better off now that they have given up their work and it leaves everybody wondering why they really decided to leave. They just appeared to be fed up with what was obviously going to be an unpopular job.

Officials shouldn’t have bothered getting upset at their obvious eagerness to use the regular press briefings to embarrass the administration by timing them to coincide with sessions of the human rights council. It wasn’t unreasonable. But the eminent persons had no business complaining about the spirited replies that they received on those occasions either. That was equally part of the process. They should have applied a little perspective and kept at their work to the bitter end.

The international observers only succeeded in reinforcing the impression already prevalent in the country that such people aren’t serious about the principles that they espouse.

This article was published on the editorial page of The Island on May 14th, 2008. The internet version can be accessed here.

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