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Devinuwara Devale accounts not ‘personal funds’: CA upholds RTIC’s order to People’s Bank
View(s):- Basnayake Nilame holds the accounts in ‘trust’ for the devotees and not in personal ‘capacity’
- Refusal to disclose information is a ‘frustration of legislative intent regarding transparency and accountability’
By Ranjith Padmasiri
“The office of the Basnayake Nilame had recently faced scrutiny on the misuse of funds’ and the transparency of such funds cannot be undermined by refusing such information…the expenditure of such funds cannot be held as a private account; it should be available for public scrutiny,” Justice Dr Sumudu Premachandra (with Gurusinghe J agreeing) held this week.
He delivered the ruling, dismissing an appeal filed by the People’s Bank against a decision of the Right to Information Commission (RTI Commission).
Bringing in the public trust concept in judicial reasoning that will impact the transparency of Sri Lanka’s religious institutions in general, Justice Premachandra stressed that ‘trusteeships of religious and cultural institutions are deep-rooted… it is entangled with the belief of devotees, and thereby trustees hold a public trust for devotees,’ referring to relevant Indian case law.
The appeal had been filed by the People’s Bank after being directed by the RTI Commission comprising (Rtd) Justice Upaly Abeyratne, senior attorney-at-law Kishali Pinto-Jayawardena, attorney-at-law Jagath LiyanaArachchi and A.M. Nahiya to disclose information regarding two bank accounts held by the Devinuwara Utpalawanna Shri Vishnu Maha Devalaya. That was following a member of the laity filing an information request alleging irregularities in the handling of the accounts.
The Commission had declined to accept the refusal of the Basnayake Nilame of the Devinuwara Utpalawanna Shri Vishnu Maha Devalaya to release the information, stating that this was ‘personal information’. It was observed, however, that the accounts did not belong to any one individual but were the accounts of the Devinuwara Utpalawanna Shri Vishnu Maha Devalaya as maintained under the Buddhist Temporalities Ordinance upon the approval of the Commissioner General of Buddhist Affairs.
As such, the ‘personal’ nature of the information did not arise, the Commission decided. Citing Section 4 of the RTI Act, which states that its provisions prevail over other ‘enacted law’ at the point of Parliament passing the RTI legislation in 2016, the Commission also ruled against the bank’s reliance on Section 77(1) of the Banking Act to deny release.
Hearing the appeal against the commission ruling, the Court of Appeal initially dismissed a preliminary objection raised by the information requestor, Ramakrishna Thenabadu (Appellant-Respondent) that the People’s Bank had committed a ‘serious procedural oversight’ by failing to name the RTI Commission as a party to the case.
The Court held that the RTI Commission is not required to be made a party to defend its decision in higher courts, citing precedent to the effect that, ‘making the Commission a respondent in appeals which are to obtain information from public authorities do not serve any purpose and it rather impedes the functioning of the Commission established to serve a vital democratic role by entangling it in a plethora of cases unnecessarily…’ On the substantive objections raised by the People’s Bank that the RTI Commission had ‘erred in law’ and, inter alia, violated the Banking Act, the Court noted that the Banking Act does not give ‘blanket coverage for non-disclosure of information and that, in any event, it is subject to the provisions of the RTI Act which is supreme over all these provisions’ in affirming the primacy of Section 4 over contrary or conflicting laws.
Justice Premachandra pointed out that the Basnayake Nilame cannot be treated as a ‘private party’ and that the collection of moneys, donations, incomes, etc. from the properties of the Devinuwara Utpalawanna Shri Vishnu Maha Devalaya, a revered historic site and an ‘ancient temple dedicated to the god Upulvan situated at Devinuwara, in Matara, the southernmost area of the country…’ are not ‘personal funds’.
The Basnayake Nilame, as a custodian, is responsible for the ‘secular administration assets and festivals’ with specific provisions of the Buddhist Temporalities Ordinance providing for the appointment and removal of the same with the approval of the Public Trustee, he added, stating also that Section 15 mandates prosecution for the misuse of funds.
The Court also dismissed the argument by counsel appearing for the People’s Bank (Public Authority-Appellant) that, if the bank was ordered to release the information, ‘the bank would be at peril as all accounts may be switched to private banks from public banks.’ It was pointed out that, ‘the cause for the disclosure is not whether the bank is public or private but the nature of funds deposited in the bank.’
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