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by Kishali Pinto-Jayawardena

The Law & Society Trust has released its latest report on the country's human rights conditions titled 'Sri Lanka: State of Human Rights 2001'. The 395-page publication covers period January-December 2000 and was edited by Elizabeth Nissan, the UK-based international human rights consultant specialising in Sri Lankan affairs. We publish today the chapter on 'Freedom of Expression and Media Freedom'. The footnotes included in the book are not included here.

Sri Lankan courts have traditionally preferred not to acknowledge pre-eminent rights of any one institution or body within the right to freedom of expression, constitutionally bestowed on 'citizens' in the country.

Indeed, free speech jurisprudence in the country is studded with notable instances where the courts have been quick to uphold the claims of ordinary citizens to this right.

Thus, the right of individuals to hand over leaflets critical of the government to the public the right of teenage students to dissent, the right of citizens to participate in noise protests, the right to freedom of speech of a participatory listener to a radio broadcast programme and the right to exercise one's vote have all been held to be important manifestations of the right to freedom of expression.

On the other hand, the 'watchdog' role of the media in a democratic society has been theoretically acknowledged and judges have been generally sympathetic when journalists come before court alleging particularly opprobrious action by the government such as the banning of a press, seizure of copies of newspapers or assault in the line of duty.

Throughout, however, the court has been cautious to specific claims of journalistic privilege.

Thus, it was articulated in a 1998 case that:

The freedom of the press is not a distinct fundamental right but is part of the freedom of speech and expression including publication which Article 14 (1) (a) has entrenched for everyone alike. It surely does allow the pen of the journalist to be used as a mighty sword to rip open the facades that hide misconduct and corruption but it is a two edged weapon which he (she) must wield with care not to wound the innocent while exposing the guilty ....

This judicial rejecting of the argument dear to a journalist's heart, that the free press is "not merely just a neutral vehicle for the balanced discussion of diverse ideas ... but instead, an organised expert scrutiny of government ......." for which it needs particular protection over and above the general protection given to the right to free speech, is unsurprising.

In the United States, after all, even with an explicit 'free press' clause and with ringing judgments in favour of unrestricted freedom of expression and an unfettered press, acrimonious debate still continues as to whether the media can claim special privileges as an institution. Regardless, it cannot be disputed that a substantially favourable constitutional law of the press prevails in that jurisdiction and journalists have found the attitudes of the Supreme Court to be a useful barometer of the socio-political status of journalism.

In Sri Lanka, given very different political-legal realities that prevail, the country's media has been far more reluctant to resort to the law and the courts in its own cause. The year 2000, however, marked a significant engagement of the media with the law in many ways.

While organised lobbying for a liberal regulatory framework ensuring freedom of speech gained momentum on the one hand, attempts by the Government to restrict the right to free speech also intensified. An increasingly adversarial media community became preoccupied not only with the near total withdrawal by the Government from the media law reform process but also with heightened censorship and questions regarding specific media rights during election times.

The resulting tensions, inevitably spilling over to the legal arena, juxtaposed some crucial questions: what is the nature and extent of the right to freedom of expression when a country is at war? In what manner could attempts by the government to stifle legitimate criticism be distinguished from genuine national security concerns?

And to what extent are these concerns heightened during election times as opposed to normal times?

In the North and East, intimidation and assassination of journalists by the Liberation Tigers of Tamil Eelam (LTTE) continued, illustrating an even more drastic curtailment of the right to freedom of speech. The ongoing conflict affected free expression in other ways with the government reacting against manifestations of artistic expression seen as impacting negatively on the war effort.

It is in the context of these preliminary observations that this chapter will discuss relevant political developments and major legal issues relating to freedom of expression and media law reform that arose during the year 2000.

Government versus the media

The People's Alliance (PA) administration had the media in the forefront of its sweep to power in 1994. By 2000, the expansion of independent, privately owned newspapers, journals and radio and television stations completed the transformation of Sri Lanka's mass communication structures into a diversified media culture. In particular, the year 2000 demonstrated an increased interest in highly popular political 'chat shows' on television.

The Government continued, however, to control the country's largest newspaper chain, Associated Newspapers of Ceylon Limited (ANCL), despite its 1994 election campaign promise to broadbase ANCL's ownership. Two major television stations, Sri Lanka Rupavahini Corporation (SLRC) and Independent Television Network (ITN), together with Sri Lanka Broadcasting Corporation (SLBC) and Lakhanda (a FM radio station operating from the SLBC) continued also to be under government control, thereby constituting a substantial 'state media'.

Between 1994 and 2000, lip service had, at least, been paid by the PA government towards realisation of election campaign promises relating to reform of the regulatory framework relating to the media, as well as improvement of financial and training conditions for journalists. The year 2000, however, saw a complete breakdown of even this surface cordiality as relations between the private media and the Government turned highly antagonistic.

On 3rd January 2000, President Chandrika Kumaratunga's address to the nation after the December 1999 Presidential Election - normally a composed address of state - developed into a scathing and regrettably personalised denunciation of the country's print media, singling out individual journalists for attack.

The attempted assassination of President Kumaratunga during the presidential campaign by the LTTE was in the foreground of these remarks, leading to government allegations that journalists critical of the government were in league with the LTTE and involved in the assassination attempt.

These allegations were immediately denied by the individual journalists as well as collectively by the Free Media Movement, which likened the "conspiracy theory" to accusations of a "Naxalite conspiracy" made against the press by former President J. R. Jayewardene during 1982.

In early June again, the state media accused four journalists, writing to Colombo's newspapers mainly on security and defence affairs of "maintaining secret connections with the LTTE".

Issuing a joint statement, the journalists pointed out that these allegations were "very clearly designed and deliberately calculated to instigate extremist elements and contract killers against us and our families. Meanwhile, the imposing of a heightened censorship in May was justified by President Kumaratunga to the Hindu on the basis that "certain newspapers were guilty of treachery and had to be suitably disciplined."

Government reactions to international media watch bodies, which called upon it to ensure greater freedom of expression with in the country, also became more hardline.

In particular, concerns expressed in January by the London based media advocacy group Article XIX regarding the alleged conspiracy by sections of the media to assassinate President Kumaratunga, non-implementation of promises to relax the regulatory framework relating to the media and the killings of three journalists, provoked angry responses by the Government.

The Minister of Media castigated Article XIX for "double standards and inaccuracies" in its statement, calling attention particularly to the fact that the deaths of two of the three journalists cited by Article XIX had been at the hands of the LTTE. The Government issued similarly harsh refutations over negative reports on press freedom in Sri Lanka released by the Commonwealth Press Union.

On 1st November, the International Press Institute placed Sri Lanka on its 'watch list' of countries which "appear to be moving towards suppressing or restricting press freedom."

From another perspective, President Kumaratunga's stand in her January Presidential Address that the private media was biased whereas the public media was balanced, were notably ill advised. Pointing the way towards an even greater polarisation of the state media and the private media during the year this bland categorisation of the state and private media as 'good' and 'bad' impacted negatively on the media industry's burgeoning debates on the need for effective self-regulation.

In the coming months, government hostility towards the private media was apparent in its deliberate disassociation from the media law reform process. The imposing of new censorship regulations under emergency law in May and the harsh manner of its implementation pre-empted any immediate hopes of return to a rational dialogue between the Government and the media on issues relating to freedom of expression and media freedom.

Censorship and the media

The famously satirical encounter between Ayub Khan and editor of Sangabad, Husain Chaudhari was very apt for Sri Lanka as the country entered the new millennium: Ayub Khan: "Chaudhari Sahib, are you not concerned about freedom of expression in Pakistan? Chaudhari: "Oh yes, Sir, I am. But I am more worried about freedom after expression."

On 3rd May, the Government announced the imposition of a heightened censorship.

When this announcement was made, there was already censorship of news in the country under Emergency Regulations imposed in 1998 and further amended in 1999, banning the publication or transmission of "sensitive military information." A Competent Authority had, in fact, been functioning under that particular regulation for the past two years.

But following past tradition, where successive governments imposed regimes of censorship after some major military or political setback, the May regulations were put into place following the mid-April military disaster where vital territory including the Elephant Pass military complex was captured by the LTTE.

The new regulations were more far-reaching than the old. They empowered the Competent Authority "to take any measures and give any directions" necessary against the media to protect national security, public order and the maintenance of essential services and to direct editors to submit documents, editorials and articles prior to publication.

Sanctions for contravention of such directives could lead to banning of the newspapers or shutting down of their printing presses. The Competent Authority was also empowered to act when he was of the opinion that "there is or has been or is likely to be" publication of matter in defiance of the prohibited categories.A further amendment to the 3rd May regulation seven days later extended the prohibition to the electronic media.

The Competent Authority appointed under the old regulations continued under the new.

The imposing of these new regulations in May did not, at first, cause much unrest among the media or the public in a country that had been subject to emergency law and censorship of varying degrees of severity for the past two decades. It soon became evident, however, that this time around, the censorship would be far more severe.

The media community recoiled as not only military news but also political comment, satire, social comment and legal analyses of the emergency regulations were censored.

Enormous sections of the newspapers began to carry blank spaces or caricatures of an individual wielding the censor's scissors. It was prior restraint of an extent unparalleled in the history of the country.

As protests streamed in from international and national media watch bodies and citizens' groups, an undeterred Competent Authority further flexed his censorial muscle by banning all live political broadcasts on radio and television. Soon thereafter, two newspapers, the Jaffna based Uthayan and the Sunday Leader were closed down and their printing presses sealed.

Ostensibly, this was for flouting the authority of the Competent Authority and continuing to publish material infringing on national security. The censorship agenda of the government was further exposed by the inclusion of a second Competent Authority, a pro-government political activist and former member of the government propaganda team.

As the media clampdown progressed, extreme adversity united the most reluctant of bedfellows. The Sri Lankan media, not usually known for its alacrity in engaging in collective action (let alone appeal to the law for relief) decided to go to court as a body.

In an unlucky coincidence, however, merely a week after the new censorship laws were imposed, the Supreme Court delivered a judgement upholding the earlier censorship which had been imposed in 1998 and amended in 1999.

The case itself is interesting as one of the more notable instances in which a citizen came before the courts under the free expression clause in the Constitution with regard to matters vitally impacting on the dissemination of information.

The 1998 Regulation (as amendeded) which human rights activist, Sunila Abeysekera heading a rights information documentation centre in Colombo, challenged before the Court, was substantially different from its successor in 2000.

It prohibited the electronic and print media from disseminating information on: ...any matter pertaining to military operations in the Northern and Eastern provinces including any operation carried out or being carried out or proposed to be carried out by the armed forces or the police force (including the Special Task Force), the deployment of troops or personnel or the development or use of equipment including aircraft or naval vessels by any such forces or any statement pertaining to the official conduct, morale, the performance of the head or any member of the armed forces or the police force or of any person authorised by the Commander-in-Chief of the armed forces for the purpose of rendering assistance in the preservation of national security.

The petitioner's argument was that, as a result of this regulation, "...she was constrained from forming and communicating information on matters of public debate that are of vital concern to the nation and in which task she had been hitherto responsibly engaged..." and, therefore, that her right to free expression,which includes the right to information, had been infringed upon.

Moreover, she pointed out that in view of the upcoming presidential elections, her right to seek, receive and impart information on the ethnic conflict and the war, her right to choose her candidate in the elections and thereby exercise her right to vote in an informed manner had been adversely affected.

Her other substantial contention was that the regulation was arbitrary per se in that it was incoherent and vested unlimited discretion in the Competent Authority. It imposed vague, unreasonable and arbitrary prohibitions that have no nexus to limitations in relation to national security concerns as permitted by Article 15 of the Constitution and thus violated Article 12(1) of the Constitution (right to equality).

In this context, it is pertinent to note that Article 15 subjects the constitutional right to free speech to a number of restrictions, including national security, public order and the protection of public health or morality. Sri Lankan case law has, however, laid down the principle that restrictions imposed under this Article must show a proximate or reasonable connection between the nature of the speech prohibited and the ground on which it is prohibited.

The petitioner particularly argued that the right to initiate a responsible and responsive communication of public interest issues assumed crucial importance in times of national emergency and civil unrest.

Any restrictions imposed on the right to free speech and expression in the interests of national security can only be to the extent strictly required by the exigencies of the situation. Accordingly, she maintained that it is extremely important to ensure that, in these situations, the pretext of national security is not used to place unjustified restrictions on the exercise of these freedoms.

Delivering a 50 page judgement in May which cited over 116 authorities both national and international, the Supreme Court found that there had been no violation of the petitioner's right to equality or her right to freedom of speech under the 1998 regulation (as amended).

Given the importance of this judgement, the first in the history of the country which comprehensively examined the right to freedom of expression in a situation of conflict and the nature of censorship therein, it would perhaps be necessary to discuss the reasoning of the Court in some detail.

In principle,the Court asserted the primary importance of the right to freedom of speech in a representative democracy, discussing in detail the theoretical basis of the right. Interestingly, in this regard, the Court stressed the duality of the right to freedom of expression.

In one sense, it is a right that belongs to each individual and requires accordingly that no one be arbitrarily limited or impeded in expressing his or her thoughts. In another sense, the Court opined that it implied a collective right to receive information and have access to the thoughts expressed by others.

In the interpretation of this right, the Court also acknowledged that a central value of the right to free speech lies in checking the abuse of power by those in authority. The free press has a legitimate interest in reporting on and drawing the attention of the public to deficiencies in government activities and, in that sense, it has a pre-eminent role in a state governed by the rule of law.

However, free speech had its limits. While laws restraining speech to ensure the safeguarding of the rights of others were common, so too was the duty placed on citizens to exercise their right to free speech with responsibility. In this respect, pre-censorship was found not necessarily unconstitutional in Sri Lankan law, even though the burden justifying such censorship was severe.

Proceeding from the theory to specific aspects of the Regulation at hand, the Supreme Court focused firstly on the allegation that the regulation itself was vague and imprecise and therefore, not "prescribed by law". While conceding that its broadly worded nature and differences in the Sinhala and English version might have caused difficulties in interpretation, it was, however, held that the mere fact that a provision may give rise to problems of interpretation could not mean that it is so vague and imprecise as to lack the quality of law.

Undoubtedly, it was accessible to the petitioner and, with the appropriate legal advice, sufficiently precise to enable her to forsee the consequences that a given action may entail. Did it, however, have a legitimate aim? Was the contention of the petitioner that the aim of the impugned regulation was to prevent the publication of information embarrassing to the government rather than the protection of national security, correct?

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