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(Continued from last week)

We continue last week's article by the Law & Society Trust which had 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 third part on 'Freedom of Expression and Media Freedom'. The footnotes included in the book are not included here.

Comments issued during this time by the Human Rights Commission (HRC) of Sri Lanka strengthened the drive against censorship. The HRC observed that the July regulations should be formulated in a manner that does not preclude the media from raising issues of public accountability in the national interest.

Calling for the appointing of a collective body including a person with military knowledge as well as a senior journalist, to oversee the censorship as opposed to a single individual, it remarked that such a body would, to a great extent, reduce the risk of subjective and abusive exercise of power and establish the right relationship between the censorship authority and the media.

In early September, the Government temporarily suspended the emergency regulations imposed in May returning the country to the 1998 censorship regulations (as amended) for all intents and purposes. However, the promised guidelines to be drafted by the Competent Authority in consultation with the editors never materialised and disagreement continued on whether the media can report on corruption in military procurements. Though the Competent Authority made statements to the effect that the media could expose corruption in the military, this was with the rider that it should not affect the morale of soldiers. Not surprisingly, this ambivalence led many journalists to practise self censorship with regard to investigative reporting on corruption in the military. The October 2000 parliamentary elections were held under military news censorship.

Elections and the media

Serious deficiencies relating to the laws that regulate the electronic media in particular during election times were exposed during the campaign leading up to the parliamentary elections scheduled for 10th October, 2000. While the two state electronic media bodies are governed by laws prescribing standards of conduct during election times, these standards are often violated with impunity. The private electronic media are not subject to such laws and generally strive to achieve a balanced coverage though there are striking instances when some stations have also departed from these standards.

Towards mid year, a draft Bill amending the Parliamentary Elections (Amendment) Act No. 1 of 1981 laying the responsibility of stipulating radio or television time afforded during an election campaign to registered political parties and independent candidates on the Elections Commissioner was proposed by the Government but not actually carried through to the legislative stage.

Meanwhile immediately prior to the October elections, several petitions were filed in the appellate courts by the main opposition party, the United National Party, alleging that the state broadcasting and print media were being used as propaganda channels by the Government. This, it was contended, was a blatant misuse of state resources to benefit one particular political party.

The petitions against the state radio and television channels in the Court of Appeal set out the manner in which the SLBC and the SLRC had allocated more time for the People's Alliance political broadcasts and telecasts than prescribed in the Parliamentary Elections (Amendment) Act No. 1 of 1981. These cases were settled with the respective media undertakings agreeing to abide by the stipulation in the amended law that, other than the time limit specified for political broadcasts, no material of any kind promoting a particular political party or candidate could be aired.

The petition filed by the opposition in the Supreme Court against the ANCL on the basis that the ANCL papers published only one sided news designed to promote the activities of the Government was dismissed by a bench presided over by Chief Justice, Sarath N. Silva who referred the case to the Press Council for suitable action. The cumulative effect of the litigation in the appellate courts was negligible as far as curbing the state media in its pro-government propaganda activities was concerned.

General developments

Lobbying for reform of Sri Lanka's regulatory framework relating to the media had its origins in the recommendations of a government appointed committee on media law reform which, in 1996, suggested wide ranging reforms to existing media laws. Arguments urging reform of these laws were buttressed by international standards on freedom of expression with which Sri Lankan media laws were yet not in conformity.

A 1997 Parliamentary Select Committee set up to inquire into the Legislative and Regulatory Framework Relating to Media concluded its deliberations without arriving at any conclusive recommendations. In the month of August 2000, Parliament debated Motion 218/99 on legal anomalies effecting the press that had been introduced by the combined opposition. The Motion included recommendations to:

- repeal section 479 of the Penal Code and Sections 14 and 15 of the Press Council Law relating to criminal defamation;

- replace the Press Council with a Media Council;

- introduce a Freedom of Information Act; and

- introduce a Contempt of Court Act.

The parliamentary debate was also concluded without any finality. Meanwhile freedom of expression continued to be constrained by other laws. These included:

- Section 120 of the Penal Code providing for a general offence of sedition;

The petitioner's argument in this respect was two fold. In the first instance, she contended that the regulation specifically prohibited dissemination of new impacting on the 'morale' of the armed forces, inter alia, in a manner which was not confined to the North and East but to other parts of the country as well, thereby breaking the nexus between the stated aim of the regulation and its substance. While agreeing that there was 'ambiguity' in this regard, the Supreme Court preferred to correct this ambiguity by interpreting that part of the regulation restrictively so that its application was confined to the North and the East. The Court held itself reinforced in this view by the Sinhala version of the regulation. The Court then specified a high standard of ruling regulations invalid; namely that it should give naked and arbitrary power to the censor, thus "permitting him to make his own subjective opinions, the practically unreviewable measure of permissible speech." In this instance, the regulation set out with sufficient precision the reason for which an application to publish may be refused and, therefore, could not be seen to be over-broad.

In the second instance, the petitioner cited examples from newspapers to show that the Competent Authority, in practice, arbitrarily censored information with no nexus to national security. However, it was held that the proper remedy for this was judicial review. What was before the Court was not the review of particular actions of the Competent Authority but the validity of the region ex facie. Citing from previous case law, it was stated that "the fact that a power may be abused does not render the Regulation invalid; such abuse of power is by no means beyond challenge."

In its totality, while the Court proceeded on impeccably theoretical lines for the most part, its reluctance to intervene substantially on the facts of the case or, at the very least, to administer a judicial admonition to ensure that the future promulgation of emergency regulations be less ambiguous and more tightly defined, was disappointing. The Abeysekera judgment was, however, in accordance with the historical reluctance of the Sri Lanka courts to strike down regulations imposed under the Public Security Ordinance unless they are extraordinarily perverse or leave absolutely no room for justification.

As far as public impact was concerned meanwhile, the delivering of the judgment of the Supreme Court in the Abeysekera case could not have been more ill-timed. Coming barely on week after a far more draconian censorship had been imposed on the media by the May 2000 regulations, the judgment was seized upon by government apologists to lampoon Abeysekera in the government press and to maintain that the new censorship laws were right and proper. Confusion prevailed meanwhile in the public mind over which set of regulations the Court's decision referred to.

Undeterred, in late May and early June, a spate of petitions were filed in the Supreme Court challenging the new censorship both in principle and in its implementation. To begin with, The Sunday Leader came before Court against the ban on its editorial offices and the sealing of its printing presses. Three days later editors of The Sunday Times, Lankadeepa and Sunday Lankadeepa, Daily Mirror, The Island, The Island Sunday Edition, Divaina, Thinnakural, Ravaya, The Weekend Express and The Sunday Leader all members of the Editors Guild of Sri Lanka and in effect, representing the entire private print media in the country petitioned Court, complaining of unfair and arbitrary action by the Competent Authority. Successive petitions by deputy editors, columnists, cartoonists and photographers, together with a petition by a political activist and a law lecturer (as reasonable readers whose right to information had been affected), followed.

These latter petitions were significant in that they marked the first occasion when Sri Lankan journalists felt sufficiently agitated to come before court, challenging specific censorship of their articles as opposed to the banning of a newspaper. The Supreme Court granted leave to proceed in the case filed by The Sunday Leader as well as in the cases filed by the individual editors and journalists.

As public pressure mounted against the censorship, the Government promised its relaxation. Two Ministers, both front rankers in the Government admitted to a visiting delegation from the Committee to Protect Journalists (CPJ) that the censorship was "counter productive." But no steps were taken to ease the situation until late June when, ruling in The Sunday Leader case, the Supreme Court declared that the appointment of the Competent Authority had itself been illegal and thus forced the Government's hand.

The Court declared that the May regulations under which the Competent Authority had acted contained no specified provision for the appointment of a Competent Authority. Accordingly, the order banning the newspaper by an illegal Competent Authority was not valid and the state was ordered to pay The Sunday Leader costs in the sum of Rs. 100,000.

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.

- Section 16 of the Press Council Law which makes it an offence for newspapers to publish details of Cabinet proceedings or decisions without prior authority;

- Provisions of the Public Performance Ordinance (1912) which stipulate that all films, dramas, productions etc., must be vetted by its Public Performances Board before being released to the public;

- Section 14 of the Prevention of Terrorism Act (1979) which imposes restrictions on the publication by newspapers of news and other matters in normal times and permits the embargo of a newspaper and the closure of the press.

Specific lobbying for media law reform

The following discussion briefly touches on four particularly crucial areas of media law reform.

Criminal defamation

By the year 2000, the need for substantive reform of prevalent criminal defamation laws had become clear. Twelve criminal defamation cases had been filed against newspaper editors of both the tabloid and the mainstream press. Some were pending while the other had been settled. On 5th September, the editor of The Sunday Leader was sentenced to two years simple imprisonment, suspended for five years for criminally defaming President Kumaratunga. In issue was the publication of an article that took Head of State to task for failing to carry out election promises, which publication, prosecutors argued, implied that she was guilty of corruption. In early December, meanwhile, the Court of Appeal upheld the conviction and sentencing of The Sunday Times editor to one and a half years simple imprisonment suspended for seven years and a fine of approximately US $ 111 for publication of a gossip item in the newspaper which (incorrectly) stated that President Kumaratunga had attended the birthday party of a parliamentarian at a hotel suite around midnight. Another accused editor, acquitted of criminal defamation charges in the trial court upon publication of a similar news item in a Sinhala language newspaper, faced the State appealing against his acquittal.

Using these cases in particular, the media argued for the repeal of criminal defamation provisions both in the Penal Code and in the Press Council Law, pointing out that the imposition of suspended sentences on journalists convicted of criminal defamation acted as an insidious deterrent to free expression. This was, in fact, a concern that had manifested itself in the monitoring reports of international bodies.

The Government, on the other hand, contended that criminal defamation laws were necessary when the media overstepped the boundaries of legitimate journalism and that civil laws in this respect were both time-consuming and prohibitively expensive for the ordinary citizen. Much of the force of this latter argument was, however, diluted by the fact that all the cases instituted under the penal laws by the State was in respect of the alleged criminal defamation of President Kumaratunga or her Ministers. This lent credence to media arguments that the penal law and the resources of the State were being used by government politicians to further their own interests.

Newspapers continued to assert, meanwhile, that the need to safeguard personal privacy could be met by entrusting the task of disciplining the media to self regulatory bodies such as a press complaints commission and by appropriate amendments to the law and procedure of civil defamation.

Interestingly, the year also witnessed the use of criminal defamation laws against citizens and election monitors. A petition field by convenors of the Centre for Monitoring Election Violence (CMEV, a Colombo based election monitoring centre) in the Supreme Court, alleging violation of their fundamental right to freedom of expression by frivolous charges of criminal defamation being filed against them by a local authority politician, was settled in court in March. It was agreed that all charges against the CMEV would be withdrawn forthwith. In November, a computer student who allegedly abused President Chandrika Kumaratunga on a live radio programme broadcast was arrested for uttering defamatory statements. By year end, he was still in remand.

Parliamentary privilege

The 1978 amendment to the Parliamentary Powers and Privileges Act (1953) giving Parliament the power to deal with breaches of the peace, was repealed by the Sri Lanka Parliament on 11th September 1997, in the only positive manifestation of election campaign promises of the PA regarding media law reform. The Supreme Court was handed back the power to examine whether a breach of privilege existed in respect of the serious offences specified in Part A of the Act. Parliament continued to have the authority to look into breaches of privilege specified in Part B. However, other amendments to the original Act were retained, including a 1980 amendment, providing that it is an offence to willfully publish words or statements after the Speaker has ordered them to be expunged from the Hansard and thereby offending the principle of representative democracy which decrees that the people have a right to know how their representatives speak and behave in the House. Repeal of this amendment was accordingly urged by the media.

Contempt of court

Prevalent legal standards relating to contempt of court in Sri Lanka, laid down mostly in case law, are conservative and act as a deterrent to media reporting on legal proceedings and judgements. Media lobbying during the year focused on enacting legislation on the lines of the Contempt of Courts Acts in India and the United Kingdom. The proposed legislation protects publication unless there was a real risk that the statement is intended and is likely to interfere with the administration of justice. Thus, there should not be gagging of bona fide public discussion in the press, of controversial matters of general public interest, merely because there are in existence contemporaneous legal proceedings in which some particular instance of these controversial matters may be in issue. The draft law also makes provision for fair criticism of judgements and protects confidentiality of sources except in certain defined instances.

Freedom of information

The impetus towards enacting a Freedom of Information Act was quickened by related developments during the year. Section 3 of Chapter XXXI of Volume 1 and, Section 6 of Chapter XLVII of Volume 2 of the Establishment Code prohibited public officials from disclosing any information to the media, even though this provision had never been implemented. But reports in February 2000 that the Cabinet had decided to implement this section resulted in public servants refusing to give any information that might impact badly on the Government. This included confirming or denying information already in the hands of journalists, giving initials of public servants or even giving statistical information without the sanction of the Secretary to the Ministry, including instances where the media played a public interest role in highlighting possible health epidemics throughout the country.

The proposed Freedom of Information Act put forward by the media community gives the public (including the media) a general right of access to government information. Exceptions are documents prohibited on the grounds of national security (other than corruption in the services and the police), individual privacy and revenue information in cases where the public interests does not outweigh disclosure. In addition, it is specified that access should be allowed for the public good and in the national interest and be unrestricted by any condition that it must be in relation to a pending legal proceedings. Non access is mandated to be subject to the scrutiny of court.

Self regulation of the media

As at least two studies of the Sri Lankan media have shown,media coverage of the ethnic conflict, for example, has been characterised by various biases which have, in fact, contributed to prevailing ethnic tensions. The necessity for the media to examine and address its own weaknesses, prejudices and personal crises has been acknowledged by some senior editors Nonetheless, the dramatic expansion of the media industry in the country has not seen a strong enough drive towards internal regulation of journalistic standards.

Criticism of the media has always had a strong political bias.In the alternative, media analyses by academics and activists have been useful to a point by demonstrating sexist and racist stereotyping by the media. But the media has generally viewed outsider reviews with profound suspicion, this being aggravated by the fact that, in the main, such analyses themselves have tended to be more destructively critical rather than constructively challenging.

Importantly, therefore, along with the push for media law reform, last year witnessed the print media at least, striving towards some measure of self-regulation. A Code of Professional Practice for journalists was issued by the Editors' Guild, which imposed duties on the print media with regard to accuracy of reporting, conflict of interests and the duty to safeguard the dignity of the profession. The code specifically provided aggrieved persons with a right of reply and the right to correction of a report that is incorrect in material aspects and resulted in some newspapers at least, reserving space for replies and corrections. Meanwhile, discussions on the setting up of a self-regulatory Press Complaints Commission, similar to the prevalent body in the United Kingdom, continued within the media industry.

Killings, intimidation and physical assault

The ongoing conflict in the North and East extracted a heavy toll during the year as far as media freedom and physical safety were concerned. In the North, Anthony Mariadas, a freelance journalist, was murdered by the LTTE on 31st December 1999 as he was to give a commentary on the midnight mass. Mariadas was a correspondent for the SLBC broadcasting from Vavuniya for residents in the North. As a propaganda tool of the Government, the SLBC generally questioned the dominance of the LTTE but also featured religious and cultural programmes. Mariadas's killing led to a citizens protest in Vavuniya in January 2000 by over 5,000 individuals. According to some reports, his killing was an instance of mistaken identity where the LTTE target was actually a journalist who came up from Colombo to broadcast the midnight service along with Mariadas.

Significantly, the year also saw the involvement of actors other than the LTTE in the physical intimidation and killing of journalists in the war torn areas. On 3rd April, a bomb exploded at the residence of Nelliah Nadesan, a regional correspondent for a widely read Tamil language newspaper. Responsibility for the bomb attack, from which Nadesan escaped unscathed, was widely believed to lie with paramilitary groups operating in the North and East in opposition to the LTTE and with the support of the government. Later on in the year, unidentified gunmen in similar circumstances killed Mylvaganam Nimalarajan, correspondent for the British Broadcasting Corporation's (BBC) Sinhala and Tamil language services. Colombo's newspapers took up the position that Nimalarajan had been targeted for his outspoken reporting on the illegalities committed during the parliamentary elections.

In the south of the country, the BBC Sandeshaya correspondent was assaulted in April when he was covering a mass protest against talks between the Government and the LTTE with Norwegian facilitation. His attackers were believed to be supporters of the National Movement Against Terrorism (NMAT), who had organised the anti-peace rally.

Pending trials and investigations with regard to journalists who had been attacked or killed during previous years, also did not reach any finality during 2000. The trial with regard to the February 1998 attack on Iqbal Athas, whose widely read defence column in the Sunday Times focused on corruption in military procurements was postponed on a number of occasions and finally put off for early 2001. While two persons were detained for questioning in connection with the 1999 murder of Rohana Kumara, the editor of a controversial Sinhala tabloid, no one was charged in the case. Similarly, the case regarding an assault on a Sinhala journalist in 1999, allegedly by an army brigadier who was arrested and then released on bail, made no headway. The 1999 shooting of Nadarajah Ramesh, a parliamentarian belonging to the EPDP and editor of a pro LTTE weekly by a gunman wielding a T-56 or AK-47 rifle in broad daylight on the 2nd of November also remained unsolved.

Several incidents of artistic personnel being assaulted and intimidated were reported during the year. In January 2000, unknown individuals torched the home and archives collection of actress Anoja Weerasinghe, who had announced her support for the opposition UNP during the 1999 presidential elections and had appeared on their election platforms. Later in the month, the husband and wife singing duo, Rukantha and Chandralekha Gunetilleke, again well-known as opposition supporters, were attacked. They were subjected to degrading treatment and then robbed. In a related development, a prominent film director, Dharmasiri Bandaranayake, complained that he had been threatened for his personal connections with the singing duo. Nineteen women's organisations condemned the attack on Weerasinghe. Though a statement was issued by the Minister of Media promising that the assailants would be identified and punished, no such action was forthcoming during the year.

Government censorship of artistic expression was particularly experienced when an international award winning film, 'Purahanda Kaluwara' (Death on a Full Moon Day), was banned on the grounds that it created a wrong impression of the Government's war efforts. The producer subsequently filed a fundamental rights application in the Supreme Court against the banning which was pending at the end of the year.

Conclusion

Commencing with the first comprehensive denunciation of the private media by the Kumaratunge administration since it came to power in 1994, the year 2000 manifested increasingly defiant claims to the right to free speech and attempts by the country's media community to commandeer the law for its own purpose against a government once praised but now clearly adversarial. Amicable reform of Sri Lanka's archaic and hopelessly ineffective regulatory framework relating to the media which might have resulted in a transformed media culture in the country, receded to the background. In retrospect, therefore, 2000 was a year of infinite difference and dissension as far as freedom of expression and media freedom was concerned, unfortunately for the most part negatively rather than positively.

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