Economy of Sri Lanka as a Concern of National Security: the Constitutional Interpretation on RIB and Its Implications

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Economy of Sri Lanka as a concern of National Security: The Constitutional

Interpretation on RIB and its Implications.

By Sanjaya Wilson Jayasekera*

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 19 thAmendment 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 Lankaas part and parcel of the interests of nationalsecurity. 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;

*LL.B(Colombo), Attorney-at-law. The author currently reads for Master in laws. This article originally was

published athttp://dialecticalmanuscripts.blogspot.com/2016/06/economy-of-sri-lanka-as-concern-of_24.html
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(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 countrys 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 countrys 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 countrys economy.


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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 toinformation 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


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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 changeeconomic 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.

Documents

Economy of Sri Lanka as a Concern of National Security: the Constitutional Interpretation on RIB and Its Implications