20th amendment and the Right to Information
The twentieth amendment to the constitution of Sri Lanka was passed in the parliament on 22nd October 2020. The speaker set his signature and ratified the 20th amendment since 29th October 2020.
The 20th amendment did not bring in any change to the Right to Information which was introduced by the 19th amendment. However, the 20th amendment affects the Right to Information, and this article briefly discusses how it happens.
The Right to Information is guaranteed by section 14(a) of the constitution of Sri Lanka. It is practically implemented via the provisions of no. 12 of the 2016 Right to Information Act. The Right to Information Commission is assigned to consider appeals regarding the Right to Information, arrange for relevant regulations and to provide guidance.
In this backdrop, the independence of the Right to Information Commission is crucial to enjoying this right. The independence of the Commission hangs on the way the Commission members are appointed. The Right to Information Act provides for the Constitutional Council to call for nominations for the commissioners and to recommend five commissioners to the President. The President will appoint the Right to Information Commission based on the recommendations of the Constitutional Council.
However, the 20th amendment to the constitution replaced the Constitutional Council with a Parliamentary Council. The Parliamentary Council, which is comprised of two representatives each from the government and the opposition, is not an independent body. Independent, apolitical members of society do not represent the parliamentary council. Further, the Parliamentary Council has no powers to recommend commissioners, and the council only can make observations regarding the recommendations made by the President. The President is not bound to proceed with the observations of the Parliamentary Council. Practically, the President retains the sole authority of appointing commissioners to the Right to Information Commission. Thus, the Right to Information Commission turns out to be a commission appointed by the President, and it is no more an independent commission.
According to the provisions regarding the removal of commissioners under the Right to Information Act, the President can remove a member of the Commission after consulting the Constitutional Council. After the 20th amendment was passed, the President may consult the Parliamentary Council and remove a commissioner. Thus, both appointment and removal of the commissioners remain under the discretion of the President. However, the independence of the Right to Information Commission is crucial for the practical use of the Right to Information in Sri Lanka.
Additionally, under article 38 of the Right to Information Act, when an information officer or a designated officer commits an offence, the Commission can report him to the appropriate disciplinary authority. As per the 20th amendment to the constitution, the disciplinary authority of the public officials is the Cabinet of Ministers. In this context, it is uncertain whether the Cabinet will take disciplinary actions independently as per the requests of the Right to Information Commission.
Although the 20th amendment to the constitution did not directly touch the Right to Information guaranteed by the constitution, the other amendments weaken the Right to Information and affect it directly.