 |
| Economy of Sri Lanka as a concern of National Security |
The recent determination of the Supreme Court of Sri
Lanka in respect of the Constitutionality of the Right to Information Bill
(RIB) raises several salient issues for serious consideration. While the Bill
itself is intended for nothing other than to further place systematic
limitations on the right to information provided under the 19th
Amendment to the Constitution, which would have to be dealt with in another
paper, this comment tries to highlight a significant development in the
judicial interpretation of the exceptions cum limitations to the fundamental
rights guaranteed by the Constitution.
In its unanimous determination the three Bench panel
of judges has held several clauses of the RIB unconstitutional, while some
others are not. The Court has determined that Clause 5(1)(c)(v) is ‘not
inconsistent with any of the provisions of the Constitution’, on the basis of
its interpretation of the exception given in Clause 5(1)(c), declaring that ‘a
restriction of information that would cause serious prejudice to the economy of
Sri Lanka is justified as part and parcel of protecting the rights of others
and the economy of Sri Lanka.’ The
Court justifies the inclusion of ‘a restriction against the disclosure of
information that would cause serious prejudice to the economy of Sri Lanka’
as part and parcel of the interests of “national security”. This paper briefs
the political-economic foundations of this interpretation and its wider
implications.
Clause 5(1)c of RIB provides that access to
information shall be refused where :
(c) the disclosure of such information
would cause serious prejudice to the economy of Sri Lanka by disclosing
prematurely decisions to change or continue government economic or financial
policies relating to:-
(i)
exchange rates or the control of overseas exchange transactions;
(ii)
the regulation of banking or credit;
(iii)
taxation;
(iv)
the stability, control and adjustment of prices of goods and services, rents
and other costs and rates of wages, salaries and other income; or
(v)
the entering into of overseas trade agreements;
The Constitution of 1978 as last amended by the 19th
Amendment does not provide economy of Sri Lanka as a matter of concern for restriction
on fundamental rights. It is only by the RIB that this new restriction is introduced.
It has been argued during the hearing of the case that the above provision is
unconstitutional as it is not caught up under Article 14A(2) of the
Constitution that lays down restrictions on the right of access to information.
Article 14A(2) provides that right of access to information can be restricted inter
alia “in the interest of ‘national
security’”. What the Court has now done in the determination is to read
(national)economy of Sri Lanka into the scope of national security.
This constitutional interpretation of the Court is
unprecedented in Sri Lanka. Never before had the apex court of the island held
that fundamental rights of the persons of the country can be restricted on the
grounds of prejudice to national economy. Moreover it is in this determination
that the Court takes the opportunity to declare ‘serious prejudice to the economy
of Sri Lanka’ as part and parcel of the interests of national security.
National Security is not defined anywhere in the
constitution, not in the proposed bill. The Global Principles on National
Security and the Right to Information, also called the Tshwane Principles,
compiled in June 2013 as a project of Open Society Justice Initiative, does not
define national security but recommends in Principle 2 that when national
security is used to limit the right to information, it should have been ‘defined
precisely in a country’s legal framework in a manner consistent with a
democratic society’. RIB does not do
this and the Court has stepped in to this task, but not to define it, but to
include national economy within its scope.
The third principle in Tshwane Principles provides
that the fact that disclosure could cause harm to a country’s economy would be
relevant in determining whether information should be withheld on the grounds
of national economy, but not on the grounds of national security. Contrary to
this principle the Court in holding the aforesaid interpretation has failed to
appreciate the implications of reading national economy into national security
and legitimizing the withholding of information on grounds of national security
when such disclosure could be claimed to harm the country’s economy.
In 1985 the United Nations Economic and Social Council
adopted the Siracusa Principles on the Limitation and Derogation Provisions in
the International Covenant on Civil and Political Rights. There are
interpretative principles of ten limitation clauses provided therein in respect
of restrictions on civil and political rights. National security is one such
limitation clause and it does not identify national economy as a matter to be considered
in its interpretation.
The determination of national economy as a national
security concern has its historical and ideological roots. The shift of the
judiciary to the far right has been a global phenomenon since the financial
crisis in 2008. Many examples can be drawn from developed countries including
United States, Britain and France. The judicial interpretation in the instant
matter depicts the extent of facilitation the Court is prepared to offer for
the economic and trade restructuring forced to be implemented by the
Sirisena-Wickremasighe government.
Dipped deeply into the economic instability and faced
with debt crisis, the Bill was brought in by the government to win over the democratic
credentials and public trust that the ruling elite in the country had long been
losing and to contain public discontent about the whole bourgeoisie
establishment. The Great recession of 2008 that spread throughout the globe had
direct implications to Sri Lanka and the economy was greatly affected, while
massive spending on thirty year civil war against the Tamil toiling masses in
the north and east had amassed a huge debt load. The loans granted and promised
by the International Monetary Fund (IMF) dictated austerity measures and public
welfare cuts and reduction of budget deficit. It also required overhaul
privatization and foreign investment facilitation. These unpopular measures
were inviting more and more public outcry, agitation and mass opposition. The
World Bank and IMF demand that the governments around the world implement
neoliberal policies in order to save capitalist market economy. The government
of Sri Lanka is not spared.
In these circumstances, as can be observed in several
other countries, the right of access to information regarding economic
structuring programmes of the government must be strictly limited. The RIB
seeks to limit this right of access to such economic sensitive information as
provided in clause 5(1)(c) and it is the Court that legitimizes this
restriction of prejudice to national economy by bringing it within the scope of
national security, which is a restriction already laid down in the Constitution
in Article 14A(2).
The republic of Indonesia included the right to information
in its constitutional amendment in 2000. It is provided in article 28F. In 2008
the Public Information Disclosure Act was brought in to regulate opening access
to public information. Section 17 therein classifies the information that is limited
on several exceptional grounds, including the obstruction of process of law enforcement,
defense
and security of the state, information that could reveal national wealth of the
country and that could harm diplomatic relations etc. National economic security
is another ground of exception, but significantly is a separate grounds of limitation
and not read within the purview of national security.
If the RIB is passed as law, the resulting effect would
be the denial of access to information regarding decisions that are intended to
‘change’ economic and financial policies relating to salient economic features
that are to affect the greater masses within the country. The information
regarding all discussions, trade agreements, arrangements in respect of control
and regulation of overseas exchange transactions, regulation of banking or
credit, taxation, prices of goods and services, rates of wages and salaries
will be non-accessible to the public. In denying access the public authorities
are free to resort to exceptional clauses of prejudice claimed to be caused to
the national economy and also to national security.
The determination has far reaching implications even
if the RIB is not passed as law. Once
national economy is judicially identified as a concern of national security, it
could most possibly imply that government is empowered to invoke national
security measures at times of economic crises. The times of economic crises are
the times of struggles of the working people. Thus, it would be legitimate
before the future Court of law of this country even to declare a state emergency
and call for essential services to suppress any working class agitation at
times of economic turbulence and crisis in the interest of so called national
security.
By Sanjaya Wilson Jayasekera
image credit:thediplomat