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Transparency and Confidentiality

isla.jpgIn an article on Transparency and Confidentiality (or Secrecy) published in  The Island’ (25 march 2009), former Director General, Public Finance – General Treasury – R. K. H. M. Fernando states that in advanced Democracies, right of information is covered in legislation as a means of ensuring transparency. In the United Kingdom Right of Information Act was passed in 2000, whereas in India, a similar act was passed in 2005. Violation of this right of a citizen to obtain information on any public issue is thus a punishable offence.

In Sri Lanka, he says, guaranteeing transparency in the affairs of the State has been confined to good intentions of advocates of such transparency as a basic tenet of good governance, apart from the same being a theme in seminars and conferences. Prospects of a Right of Information Act are bleak. Any attempt by the interested in this direction without the blessings of those in political power is bound to meet with the same fate as in the case of the Public Finance Act, he adds.by R. K. H. M. Fernando – former Director General, Public Finance – General Treasury.

Transparency and Confidentiality (or Secrecy) are alternatively exploited by the two parties of the political divide depending solely on whether they are trying to come into power or remain in power. However, both of these tools of governance have their uses as well as abuses. A tendency is globally observed for a party in power to exploit confidentiality or secrecy to its maximum political advantage and for a party out of power and struggling to regain it to insist on installing transparency in all spheres of governance, despite the need under certain circumstances to impose limitations on it in the interest of the State as much as individuals. This article seeks to discuss this issue in the local context in view of the obvious metamorphosis or chameleon like attitude displayed in this regard by our politicians unabashedly.

Good governance is a cardinal feature as well as the main objective of democracy, to achieve which an environment of transparency is a sine qua non. Good governance postulates accountability whereas transparency is the most effective safeguard against corruption. Even the other elements of democracy such as periodical elections and an independent judiciary operate effectively only in an environment of transparency.

Confidentiality, in contrast appears to be the very antithesis of transparency and should be resorted to only when in dire need and only to prevent the misuse or abuse of the latter. This proposition may draw a parallel with the situation when limitations are imposed even on several basic freedoms associated with democracy such as freedom of speech, association, expression of contrary views and right to information. In the same way as one’s freedom ends where another’s freedom begins, transparency ceases to operate when another’s right to privacy or secrecy is in jeopardy.

 

Guaranteeing Transparency

In advanced Democracies, right of information is covered in legislation as a means of ensuring transparency. In the United Kingdom Right of Information Act was passed in 2000, whereas in India, a similar act was passed in 2005. Violation of this right of a citizen to obtain information on any public issue is thus a punishable offence.

In Sri Lanka, guaranteeing transparency in the affairs of the State has been confined to good intentions of advocates of such transparency as a basic tenet of good governance, apart from the same being a theme in seminars and conferences. Prospects of a Right of Information Act are bleak. Any attempt by the interested in this direction without the blessings of those in political power is bound to meet with the same fate as in the case of the Public Finance Act. 

Resistance will come not only from politicians but even from top bureaucrats, lest impunity now being enjoyed by those in authority in plundering the wealth of the People at large should be impaired if not totally lost. In tandem confidentiality with its more negative aspect of secrecy has achieved prominence since the country gained Independence. 

 

Handy tools

Apart from the confidentiality provided in the Financial Regulations in certain selected situations, as in the case of Tender Procedure and certain payments by law enforcing authorities, which has been exploited increasingly, particularly since the security situation of the country assumed alarming proportions with the rise of insurgency in early seventies and terrorism since mid eighties, the dormant Public Secrets Act and ever increasing plethora of regulations have become handy tools in the hands of authorities not only in the broader national interest but even in pursuance of personal as well as narrow political interests.

The topical nature of this subject assumes all the more importance these days in the context of the dictates of national security commanding priority over all other temporal issues in view of this anti-national forces, local as well as foreign, ganging up in the aftermath of the military victories over the most brutal terrorist group now being achieved. Any excesses resulting from the misuse or the abuse of this extraordinary authority will have to be addressed by the State itself through the existing mechanisms.

Herein, the role of the judiciary comes into play, where the demands of individual freedoms associated with transparency are likely to be in conflict with those of confidentiality liberally enforced by the State. What is uppermost in the mind of the judiciary should be the broader or long term interests of the nation and not the short term and narrow interests of those in authority.

In dealing with transparency and confidentiality or rather in the process of striking a balance between the two, it has to be emphasised that transparency is an absolute necessity where exceptions should be of temporary application that, too, under exceptional circumstances. So those who are likely to resort to or thrive on it under circumstances questionable or unjustifiable, the eventual possibility of exposure should be real and staring. The need to leave a trail of evidence of every detail of what transpires under the cloak of secrecy should be enforced comprehensively. The audit requirements of accountability recognised internationally and enforced globally provide for measures to eliminate or reduce avenues of corruption. Chances of an act apparently committed in national interest turning out to be counterproductive or disastrous in the long term should be taken care of in setting out procedures for such acts as well as in the provision of scrutiny thereof. The Athurugiriya Safe House episode and payments to the LTTE to oust the IPKF should be viewed in the above perspective. In this context arguments based on historical events that occurred in the mediaeval or ancient periods are not tenable.

 

Willful violations

Wilful violations of basic principles of transparency in Public Affairs set bad precedents in the long term. Although such acts may be defended nonchalantly and with impunity as long as the perpetrators and their masters are in power, repercussions may be disastrous and horrendous for the one time trend-setter once he is out of power and his one time resources are in the hands of his opponents. On the same token, a repetition of the same, citing and based on the precedent may be more outrageous as well as more defendable in the new emerging circumstances. The final outcome will inevitably be more disastrous not only to the original perpetrator but even to the system or the nation as a whole.

Public Tender Procedure or the transparent competition based procedure for the procurement of supplies and services and the disposal of public assets and exclusive rights and privileges is an area where transparency and confidentiality operates side by side. This system has been installed in the interests of economy, efficiency, equality and non-discrimination. 

Transparency is insisted on here to ensure that possibility of bribery and/or corruption is reduced to a bare minimum in the decision making process, whereas confidentiality is brought in to ensure that business information provided by parties competing does not fall into the hands of rival businessmen who may use the same to gain an undue advantage in the highly volatile business environment.

Secrecy provisions in the Income Tax laws meant for the benefit of taxpayers in the sphere of their real income and several sources thereof and aimed at preventing these from falling into the hands of unscrupulous rival businessmen and to operate solely in the interests of taxpayers apart from the taxing authority should be used strictly for the intended purpose. But recent revelations in the Department of Inland Revenue have exposed how some of its officers have used these secrecy provisions for their personal gain to hide their involvement in criminal fraud from the reach of the law of the land.

Investigations by law enforcement officers into matters relating to national security and special investigations into crimes where on the spot evidence is lacking may often require confidentiality at least in their initial stages to ensure successful and unhampered investigations as well as to accommodate wider security concerns. The facility is prone to be abused by politically subservient elements at the behest of unscrupulous politicians and even to settle private scores. It should not also be over stretched beyond absolute requirements and mandatory prosecutions or in its absence plausible and fool proof explanations should be insisted as deterrents against abuse.

As in the case of Public Finance, the need to ensure accountability in enforcing transparency and tolerating secrecy cannot be over emphasised. The prospect of eventual accountability can contain both transparency and secrecy within their reasonable parameters. As an ultimate tool of good governance, it can strike a balance between the competing demands of the two. Accountability that is enforceable and meaningful effective should not be confused with or bargained for rhetorical responsibility, which is only an acclaimed hallmark of politicians.

This is an area that should be handled above political considerations allowing the judiciary to intervene when necessary in Sri Lanka, aberrations appear to be addressed only with a change of a political regime, the result being political exploitation of scandals of one regime by the succeeding one soon to sweep the whole issue under the carpet and the new regime to continue with the same. It is a salutary sign that Sri Lankan judiciary is increasingly getting involved in enforcing accountability herein.

 

Transparency Vs confidentiality

It was Thomas Jefferson, a founding father of the United States of America, who said, “Were it left to me to decide whether we should have a government without newspaper or newspaper without government I should not, hesitate to prefer the latter”. This shows the need to have cheeks and balances on the executive which are forthcoming only through transparency.

This vindicates the priority given to transparency over confidentiality or secrecy particularly when the government assumes extra-ordinary powers, at the expense of the unfettered freedom which should be the inherent right of the media. On this count a regime which does not resort to imposing barriers on free flow of information is always preferred to one that puts transparency in jeopardy under whatever circumstances.

Such regimes that thrive on props of confidentiality exploit factors other than national security. Financial and economic mismanagement of the government is often hidden from the wider public by imposing restrictions on publication of any information on such issues. Such a situation appears to prevail in the United Arab Emirates, where a new draft law is being enacted to enhance penalties for the crime of damaging the country’s regulation and economy.

Future perspectives for a happy combination of these two mutually exclusive methods of dealing with the free flow of information appear to be gloomy with the two main political parties failing to reach a consensus on the pestering national issue which is the main if not the sole cause of terrorism. This situation will continue until either the international community or wiser counsel among the citizenry prevails on our leaders to prefer a win-win situation before a lose-lose situation becomes inevitable. The sooner this occurs, the better.

Courtesy: The Island 24 March 2009

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