The journalists Chamara Sampath and Tharindu Jayawardene sought the list of names of MPs who have handed over their respective Declarations of Assets and Liabilities in 2018 as well as the list of names of MPs who have handed over their Declarations from 2010 to date in an application filed with the Information Officer (IO) of Parliament in August 2018.
Shortly after that they were informed by the IO that in order to obtain details in relation to Declarations of Assets and Liabilities of Members of Parliament, a request has to be made to the Speaker of Parliament in terms of the Declaration of Assets and Liabilities Law No. 01 of 1975.
Dissatisfied with the response of the IO and on the basis that they were not requesting the contents of the Declarations of Assets and Liabilities but a list of names of the MPs who have submitted their Declarations of Assets and Liabilities, the Appellant filed an appeal with the Designated Officer (DO) of Parliament in late August, 2018.
They were informed by the DO that except in the limited instances laid down in the Declaration of Assets and Liabilities Law (DALL) No. 01 of 1975, in all other instances the confidentiality of the Declarations of Assets and Liabilities must be protected and that in any event the relevant authority in relation to the Declarations of Assets and Liabilities of Members of Parliament is the Speaker and as such any query vis-à-vis the same must be directed to the Speaker.
They were also informed that in terms of Section 11 of the Declaration of Assets and Liabilities Law (DALL) No. 01 of 1975, when in conflict with any other given law, the DALL would prevail over such conflicting law.
Dissatisfied with the response of the DO, they made an appeal to the RTI Commission on 11 September 2018.
The appeal was heard by the RTI Commission comprising its Chairperson Mahinda Gammampila and Kishali Pinto-Jayawardena, S.G. Punchihewa and Justice Rohini Walgama.
After lengthy correspondence between the Secretary General of Parliament (SG) and the RTI Coming which took up a considerable period of time, the Commission decided last week to issue a final order.
In its Order, the Commission noted there were common ground of both parties to this Appeal that Declarations of Assets and Liabilities are forwarded by Members of Parliament in terms of Section 4(b) of the Declaration of Assets and Liabilities Law (1975) to the Speaker of Parliament and that the SG of Parliament is the administrative arm of the Public Authority (Sri Lanka Parliament) as borne out by the relevant Standing Orders of Parliament.
Further, there was consensus that what the Appellant had asked for, was a list of names of MPs who have submitted their Declarations of Assets and Liabilities from 2010 to date, and in the year 2018.
The matters in dispute and summary were the threshold Question of Applicability of Section 3(1) of the RTI Act i. Section 3(1) of the RTI Act specifies that information must be released by a Public Authority if the said information is in its ‘possession’, ‘custody’ or ‘control,’ subject however to the exemptions detailed in Section 5(1).
The Commission in its Order said that the SG of Parliament is bound to release the information in keeping with the RTI Act as well as constitutional provisions and that this would not infringe on the privileges of Parliament.
The Commission said the information requested is of high public importance and public interest given the need for accountability and transparency of elected representatives. “The submission of Declarations of Assets and Liabilities by parliamentarians to the Speaker of the Parliament is a legal duty specially secured by the Declarations of Assets and Liabilities Law (1975). As such, this information request relates to the carrying out of a legal duty by elected representatives. We record our considerable puzzlement as to why such a high degree of secrecy needs to be maintained about this data,” the Commissioner said in its Order.
It added that as a body established under and in terms of the RTI Act to ‘foster a culture of transparency and accountability in public authorities, which includes the Parliament of Sri Lanka, the Commission is cognisant of its public duty regarding the same. “That duty is rendered all the more imperative in that the information requested by the Appellant, viz., a List of parliamentarians who have adhered to the law, cannot be called for and obtained under the Declarations of Assets and Liabilities Law (1975) in any event, unlike the said Declarations themselves.”
The Commission held that the RTI Act overrides the Declarations of Assets and Liabilities Law (1975) by virtue of Section 4 of the RTI Act.
“We opine that if the argument of the Public Authority that the Appellant may apply for and obtain the instant information using procedures stipulated in that Law rather than using the RTI Act, despite the fact that the said Law does not allow for such information be either asked for or given, is taken at face value, the Appellant would be effectively left without a remedy. This would be a comprehensive rebuttal of the information regime that the RTI Act, No. 12 of 2016 seeks to establish. Thus, we hold that Section 5(4) of the RTI Act pertaining to the public interest secured by the release of the information, which this Commission is duty bound to uphold, prevails over the objections raised by the respondent Public Authority, including interalia Sections 3(2), and 5(1) (a) and (k),”
Thus, the Commission reversed the decision of the Designated Officer in the Appeal and directed that the information requested by the Appellant be released.
The Order of the Commission was conveyed to both parties in terms of Rule 27 (3) of the Commission’s Rules on Fees and Appeal Procedures.