The unexplained ‘disappearance’ of a Commission of Inquiry (CoI) Report relating to the death of Sri Lanka Muslim Congress founder leader M.H.M. Ashraff, has surfaced in a recent appeal hearing before the Right to Information (RTI) Commission of Sri Lanka
The disappearance came after it had been kept in a file at the Presidential Secretariat and sent to the National Archives 10 years ago, during former President Mahinda Rajapaksa’s regime.
The appeal was filed under the RTI Act No.12 of 2016, by former Deputy Minister of Cooperatives & Internal Trade, Basheer Segu Dawood. The ‘disappearance’ of the Report is expected to fuel conspiracy theories that have swirled around the circumstances that led to the death of the former SLMC Leader and 14 others including party officials, in a helicopter crash in 2000, allegedly due to engine failure.
Responding to public agitation at the time, a CoI headed by Justice L.K.G. Weerasekera was appointed by former President Chandrika Kumaratunga to report on the incident. However, the Report was never released to the public. In the appeal filed by Mr Dawood, it has been revealed before the RTI Commission that the file relating to the Ashraff Commission had been sent to the National Archives only in 2007, years after the inquiry was concluded, and during the time of former President Rajapaksa.
Mr Dawood’s initial RTI request to the Presidential Secretariat for a copy of the CoI Report had been rejected. Thereafter, he had filed an appeal to the RTI Commission. In the appeal heard before Commission Chair Mahinda Gammanpila and Commission members Kishali Pinto-Jayawardena, Selvy Thiruchandran and S.G. Punchihewa, on Oct.16, Additional Secretary (Legal) of the Presidential Secretariat, appearing on behalf of the Secretary to the President, had informed that, though the Information Officer (IO) of the Presidential Secretariat had called for the file from the National Archives, upon the RTI request, the Report was missing. (http://www.rticommission.lk/web/images/pdf/basheer-segudawood-new.pdf).
There was only one ‘Minute’ which said the relevant file had been sent to the National Archives by the Presidential Secretariat on 12.01.2007. The CoI Report itself was not available at the Presidential Secretariat. Assessing the matter, the RTI Commission had directed the responsible officer of the National Archives to be present on the next date of hearing, (Nov.20), along with the relevant file for the examination of the RTI Commission.
Earlier this year, trade union activists appealed to the RTI Commission to obtain a copy of the CoI Report into the killing of Roshen Chanaka and injuring of the Katunayake Free Trade Zone (FTZ) workers by the police in May 2011, when they protested against a proposal by the Mahinda Rajapaksa Govt to privatise the Employees Provident Fund and transform it into a dubious pension scheme. Headed by former High Court Judge Mahanama Tillekeratne, the CoI Report was not released for many years, after it was handed over. An RTI request to the Presidential Secretariat this year, by the mother of the slain Roshen Chanaka, was refused on the basis that it violated national security. However, the Report was released shortly after she appealed to the RTI Commission. Celebrating the International Right to Know Day (IRTKD) last month, Roshen Chanaka’s mother praised the RTI Act for being instrumental in the release of the Report relating to her son’s death.
The Tillekeratne CoI Report strongly condemns excessive police force against the Katunayake FTZ workers, castigating the police as ‘uncivilized’ and calling upon police officers to be made aware of the fundamental rights of FTZ workers. Police actions were stated to amount to a violation of the Penal Code, the Criminal Procedure Code, the Police Ordinance and the Constitution.
Appointed under Presidential warrant and often headed by retired or sitting judges, CoIs have been characterized by their Reports being withheld from the public, despite the public funds spent to establish and maintain them.
Under the law relating to the archiving of documents, the Secretary of a CoI appointed under the CoI Act, must deposit all records relating to such CoIs at the National Archives within 3 months of the final Report. This Legal provision is, however, rarely followed in practice. Regulations promulgated under the National Archives Law No.48 of 1973 (as amended), state such records are required to be kept at the Archives. They may be made available for public inspection after 30 years or, following the lapse of such time that, they have been closed for public inspection by the public office creating such records.
However, the RTI Act states in Section 4, that the provisions of the Act maximizing disclosure of information shall have effect, notwithstanding anything to the contrary in any other written Law. Accordingly, in the event of any inconsistency or, conflict between the RTI Act and other Law, the provisions of the RTI Act shall prevail. The National Archives Law has been listed among several Laws that will need to be amended, to be in conformity with the RTI Act.