By Kishali Pinto-Jayawardena
A common view held by many across the Commonwealth that Sri Lanka holds out a beacon of hope to the world in reversing the tide of authoritarianism underscores darker and more complex realities.
Even in those early days when elation prevailed after the surprise election defeat of former President Mahinda Rajapaksa in 2015, many of us instinctively knew that this was just the beginning of a long, hard road towards reversing systemic Rule of Law failures, much of which had predated Rajapaksa rule (2005-end 2014).
Journalists being briefed on the Right to Information Act
Two years later, the formidable challenges before us are very clear. During the previous decade, the abuse of power had been unprecedented, even when assessed against the country’s turbulent post-independence history after British colonial fetters were shaken off in 1948. Ordinary law and order had deteriorated to abysmal depths. State, economic and military powers were concentrated in the office of the Executive President. Corruption on the part of a ruling family cabal was rampant and ugly. Shaky at its best, the scales of the State tilted dangerously towards raw, naked authoritarianism. Editors and journalists were assassinated, beaten up and threatened. A decades-long secessionist war fought by the LTTE in the Northern peninsula was brought to a bloody end in 2009 but even after, terror continued to stalk the land.
Yet the stage for this departure from the democratic path had been set quite a while ago. Prolonged ethnic conflict and more sporadic but equally violent clashes between the majority Sinhalese government and rebellious Sinhalese youth in the South had paved the way for emergency law to become the norm. Checks and balances once holding arbitrary executive discretion in check became weaker. Under the Kumaratunga Presidency, a Supreme Court headed by her handpicked Chief Justice in 1999 became politicised with severe adverse impact on a once revered institution. Attacks on critical journalists waxed and waned with criminal defamation law being used to stifle dissenters until a vigorous media-led campaign resulted in its repeal.
So to many, the excesses of the Rajapaksa Presidency was a natural – and logical – culmination of what had preceded. Regardless, a restive if not angry populace was ripe for change when, following a surprise announcement of a premature Presidential election, Rajapaksa’s onetime Health Minister Maithripala Sirisena deserted his party leader and contested the elections with the support of Ranil Wickremesinghe, leader of the (then) opposition United National Party (UNP) after months of covert planning. It was an explosive electoral challenge in the best traditions of excitable party politics, catching the imagination and hope of Sri Lankan citizens who voted for the imprudent challenger. But the 2015 reformist agenda of the Sirisena-Wickremesinghe coalition is now facing grave internal subversion by forces that were very much part of the earlier anti-democratic establishment.
Great expectations; the Government’s reform agenda
One major thrust of reform concerned the restoration of the Rule of Law including the independence of the judiciary, the enactment of a Right to Information law and a Contempt of Court Act, the broad-basing of state-owned media among a host of other pending media law reforms. The other equally imperative focus was on state accountability for war time abuses premised on a consensus resolution on Sri Lanka adopted at the United Nations Human Rights Council.
However, progress has been faltering. Indeed, in some respects, there is regression. For example, the Government promised to repeal or reform the Prevention of Terrorism Act (PTA) under which journalists and activists had been routinely imprisoned. But now, a draft Counter-Terror Act (CTA), conceived in secret and running to more than fifty pages, has far more terrifying potential to restrict civil liberties than the PTA.
Where accountability is concerned, little of significance has happened apart from an Office of Missing Persons which remains yet inactivated. Similar dysfunction affects a Victim and Witness Protection Authority. In addition, hawkish elements within the Government are denying the right of immediate legal counsel to a suspect upon being arrested. Cases relating to the killings and beatings of journalists are yet pending.
Emblematic cases of gross human rights abuses against Tamil civilians under the previous regime suffer a similar fate. Absent sufficient pressure from civil society, the members of which have now been co-opted in great part into ad hoc task forces, punishing perpetrators through a radically reformed criminal justice system has been replaced by a spluttering Colombo-centered transitional justice process. This has been an early victim of the huge gap between what the Government promised and what it can actually deliver. Ambitious constitutional reform plans are similarly bedevilled. Corruption investigations into the near-bankrupting of the state coffers by the Rajapaksas have also stalled. Emboldened, the former President’s supporters have become increasingly more vociferous.
Encouraging use of RTI across the country
The one exception to this sad litany of non-performance is that on June 23, 2016, Parliament unanimously passed the Right to Information (RTI) Act. This was a result of persistent advocacy for over one and a half decades by editors, lawyers, media activists and civil society activists. A key pivot thereto was the 1998 Colombo Declaration on Media Freedom and Social Responsibility, which focused on RTI as a legislative imperative. Earlier, a Prime Ministerial committee had drafted the 2004 Freedom of Information (FOI) Bill which was approved by the Cabinet. However the premature dissolution of Parliament resulted in the 2004 Bill being discarded. Some unsuccessful revivals were attempted in later years, one such effort being notably by the present Speaker of Parliament Karu Jayasuriya then an opposition parliamentarian. But the Bill was re-activated as a template only in 2015 with the change of regime. Following sleepless days of hectic drafting and after public consultations, the revised version now named the Right to Information (RTI) Bill was approved by the Cabinet.
The Bill passed the test of legal challenge before the Supreme Court subject to certain modifications. To the surprise of those anticipating vigorous opposition on the floor of the House, it was passed with nary an opposing vote. As a member of both drafting committees in 2004 and 2015/2016, this was a rare day of rejoicing for me. Some months ago, a constitutional amendment had also enshrined the right of access to information. RTI was therefore backed by two supports; one, constitutional and the other statutory. That said, the fact that the constitutional restrictions (drafted differently to the statutory process) were somewhat broader in scope did give rise to unease. Nonetheless, there was much to be pleased about.
Since the Act and its Regulations with the Rules of the Commission on Fees and Appeals were operationalised on February 3, Sri Lanka has been ranked globally as having the third best RTI regime. No state agency is exempted from its reach unlike other information laws in the region. For the past two months, the use of RTI has been quite diverse and vigorous. This is a positive factor even though I cannot comment on specific cases.
Will RTI be an exception to a discouraging pattern of practically ineffectual good laws in Sri Lanka? Will it radically transform the culture of secrecy that holds the political and public service establishment in an iron grip? Answering these questions require prophetic ability. But unlike other laws which depend on dysfunctional state institutions, RTI can be directly used by citizens to provoke, needle and demand accountability from government and non-government entities. Early signs of its enthusiastic use are encouraging.
Ambitious reform plans of Sri Lanka’s coalition leadership have been slowly collapsing into disarray. True, citizens now live free from the threat of enforced disappearances and blatant misuse of power. Moreover, there is freedom of public debate which was once a luxury. Nonetheless, as has been repeatedly emphasised in my weekly column to the Sunday Times, Colombo, the coalition Government’s incessant refrain that ‘things are not bad as they once were’, is no answer. Setting the bar of comparison based on the previous regime is akin to no standard at all.
And freedom of expression is of limited use when structures of state power remain impervious. In addition, increased criticism appears to be having a bitter impact. The Government has vowed to bring in a regulatory framework for print, electronic and online media. While media professionalism has deteriorated badly, mostly due to journalists being bludgeoned literally and metaphorically in the past, government regulation is unquestionably not the solution to that problem. Cloaked in the deceptively misleading language of ‘independent regulation’ such innocuous experiments are often twisted to political advantage.
Some in the Government have asserted that RTI is a quid pro quo; in other words, as RTI has been ‘given’ to the media, it should ‘submit’ to the proposed regulatory scheme. This argument suffers from a fundamental misconception. RTI is not a privilege to be bestowed at the magnanimity of politicians. Rather it is a people’s right (not limited to the media). Any suggestion of a quid pro quo is unfortunate.
In 2015, democratic change-makers were ordinary citizens from far flung corners of the land who reacted with powerful anger against state-sponsored racism, chauvinism and corruption. But this critical constituency of reform is being eroded day by day. That is regrettable for Sri Lanka’s people, for the Government which once promised much and most profoundly, for those working for genuine systemic change.
(The writer serves as a Commissioner on Sri Lanka’s RTI Commission as the nominee of the organisations of editors and publishers. The views expressed are strictly in her personal capacity. This is an edited excerpt of a paper discussed at conference sessions on ‘The Commonwealth and Challenges to Media Freedom’ hosted by the Institute of Commonwealth Studies (ICwS), April 4th 2017. This article appeared first in the “Sunday Times” from which it is reproduced here)