How poor legal drafting can blunt the power of RTI

Posted on April 19, 2015  /  0 Comments

A few days back, I included the following in a guest column for the Financial Times:

Most of the 192 words specifying the Right to Information (RTI) as a fundamental right are superfluous. There is an entire bill in third draft that probably includes the very same language (if it does not, the Constitutional language will override it). All that is needed in the Constitution is one sentence “Subject to law, every person shall have a right of access to official information which is in the possession, custody or control of a public authority.”

This was in the context of larger lament on the state of legislative drafting in Sri Lanka. What belongs in subsidiary legislation gets dumped into legislation. What should be in ordinary law is stuffed into the Constitution. Terms are not defined. One wonders whether the lawyers who do these things are simply incompetent or deviously clever. If they can create enough ambiguity in statutes they are also creating jobs for other lawyers.

A columnist in the Sunday Times comes close to my position, though her remedy is not so drastic:

Public authorities providing information under the RTI law may be blocked by interested parties citing the broad constitutional exceptions. This may hinder information requests under the RTI law and render the law itself virtually inconsequential.

Worryingly therefore, there is potential for two separate legal regimes on information denials to develop. The first regime may be confined to narrow exceptions within the public interest disclosure which the RTI law strictly demands. The other regime may develop under the broad constitutional exceptions. Certainly this is not conducive to clarity in the law.

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