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by Victor Gunewardena

It is heartening to note from newspaper reports that the UNF Government wants to introduce a series of reforms shortly in keeping with its pledge to ensure media freedom.

The public have been informed that consensus has been reached between the Government and representatives of newspapers on a new media culture. While this is a welcome development it is pertinent to remind both the Government and those who represented newspapers that freedom of expression and media law reform concern not only the Newspaper Society of Sri Lanka, the Editors Guild and the Free Media Movement but also all citizens.

The right of freedom of speech, expression, information and publication is not an institutional right but an individual one. The responsibilities and restrictions pertaining to the exercise of that right are applicable to whosoever chooses to exercise the right. Public's right to know

Therefore, the public have a right to know the content of the proposed legislation, if any, or in the alternative, the substance of the consensus that has been reached on the new media culture. According to newspaper reports, high priority is to be given to the abolition of the law of criminal defamation (Section 479 of the Panel Code), the setting up of an independent Press Complaints Commission and the introduction of a Freedom of Information Act.

One newspaper report states that the draft bill on the repeal of the criminal defamation law would be made available to media representatives before tabling it in Parliament.

Why only media representatives? The law on criminal defamation in Sri Lanka includes slander or verbal defamation. As such, the offence of slander could be committed not only through the printed word but also through the spoken word, be it on radio, television or other oral communication.

draft legislation first

The draft legislation on this subject as well as on other issues under discussion should be widely publicised in the media before being tabled in Parliament because the public have a right to know the content of the proposed laws or amendments. Provision should also be made for public discussion on the issues before formal presentation of the bills in Parliament.

The present Government should avoid making the mistake of its predecessor of shrouding in secrecy some of the controversial legislation it proposed to introduce.

Eventually, some of those bills were struck down by the Supreme Court after challenge by civic minded persons. If necessary, citizens should have adequate opportunity to exercise the right of challenge of proposed legislation on the ground of inconsistency with provisions of the Constitution or to point out the inadequacy or other shortcomings of such new laws. For instance, the public availability since November 1996 of the draft Access to Government Information Act formulated by the Law Commission enabled journalists, legal academics and media researchers besides others to point out its several deficiencies.

lessons from the past

It is now learnt that the original draft has been revised and enlarged incorporating suggestions made at different fora on the subject, including the seminar held to mark World Press Freedom Day on 3rd May 2001 and the seminar held in July 2001 on Promoting a Right to Information in South Asia.

The latter project was undertaken jointly by Article 19, the Centre for Policy Alternatives, Commonwealth Human Rights Initiative and the Human Rights Commission of Pakistan. Let us learn from some lessons from the past. It was a former Secretary-General of Parliament, Mr. S.S. Wijesinha, who in the course of a presentation made at a meeting held at the British Council a few years ago made the point that often legislation is introduced without prior careful scrutiny of the content.

He said that a total of almost 57 per cent of laws introduced in Parliament since 1947 have had to be subsequently amended, enlarged or repealed, in some instances owing to drafting errors or infirmities revealed in the course of enforcement. The tendency to rush legislation through Parliament without prior public discussion and incisive scrutiny by Parliament itself has to be resisted.

Two significant pieces of legislation come readily to mind. The first was the January 1978 amendment to the Parliament (Powers and Privileges) Act of 1953 by which Parliament was vested with the power to fine and punish concurrently with the Supreme Court for the offence of breach of privilege.

That amendment was rushed through by the UNP Government as being 'urgent in the national interest'. It did not receive Opposition support.

There were two regrettable sequels to that amendment. The first was the 'Observer' case over a caption mix-up concerning a picture of Foreign Minister Hameed on a trip abroad. The second was the S. Nadesan QC case arising from a series of articles he wrote in the 'Sun' newspaper commenting on the episode in Parliament.

A five judge bench headed by Justice G.T. Samerawickrame held that Mr. Nadesan had committed no offence. Acting on a recommendation of the R.K.W. Goonesekere Committee on the Reform of Laws Affecting Media Freedom and Freedom of Expression, the PA Government introduced legislation in September 1997 rescinding the 1978 amendment. The UNP, too, supported the rescinding. The Goonesekere Committee had recommended the repeal of all four amendments to the Privileges Act - those of 1978, 1980, 1984 and 1987.

Another instance of hasty, ill-considered legislation was the Broadcasting Authority Bill introduced by the PA Government in 1997. It was challenged by Gamini Athukorale and 14 other petitioners as being ultra vires certain articles of the Constitution. The bench comprising Chief Justice G.P.S. de Silva and Justices A.R.B. Amerasinghe and P. Ramanathan struck down the bill as being ultra vires Articles 10, 12 and 14. It was the vigilance of the petitioners that resulted in the proposed law being abort. The gazette of the bill was issued on 24th March 1997. The Easter vacation intervened. But no sooner it ended than the petitioners filed their applications on 15th and 16th April. The hearing took up 28th and 29th April and the determination was made on 5th May.

partial proposals

Although the proposed legislation seeks primarily to remove the unreasonable restrictions which impinge on the proper functioning of the press the reported solutions are themselves partial and are narrowly concerned only with the interests of newspapers.

For instance, the proposed Press Complaints Commission law by its very nomenclature excludes the electronic media. It would appear that this Commission would be a self regulatory body and not a quasi-judicial body which could ensure compliance with its decisions. Even so, the electronic media would function without a similar self-regulating body and aggrieved members of the public would have no redress other than seeking relief through the courts.

It is to obviate such discrimination that the Goonesekere Committee recommended the setting up of a Media Council covering press, radio and television. The UK and Canada, for instance, provide for separate bodies to regulate radio and television broadcasting besides provision for the print medium.

Why is the government silent on the obnoxious features of the SLBC Act No. 37 of 1966 and the SLRC Act No. 6 of 1982, both of which provide for governmental control? Why has the Government chosen to ignore the recommendations of the Goonesekere Committee on both matters?

If the Government is genuinely concerned with ensuring press freedom why is it silent on the recommendations of the Sidat Sri Nandalochana Committee on broadbasing the ownership of the Associated Newspapers of Ceylon Limited in keeping with the provisions of the ANCL Law of 1973? The PA Government chose not to implement the report of the committee which itself had appointed in pursuance of its election pledge and it trod the same path that successive governments since 1973 had done. Every Government used the institution arbitrarily to serve its politically partisan ends. The ANCL must be freed of governmental control and management and the relevant law has to be implemented consistent with the intention of the Legislature at the time of its introduction.

piecemeal legislation

In its efforts to show something tangible in the sphere of media reform within the first hundred days in office the Government is now looking selectively at certain media laws which it had the opportunity of doing as Opposition members of the Select Committee on Media Law Reform.

The public would perhaps recall that in August 1997 the Leader of the House moved the appointment of a Select Committee to report on the Legislative and Regulatory framework relating to media. Accordingly, a Committee comprising 29 members representative of both sides of the House was appointed. A total of 22 persons and institutions submitted memoranda to the Select Committee, which was due to begin deliberations in April 1998. Neither the then Government nor the then Opposition showed any sense of urgency to take effective action on media law reform.

Consequently, when Parliament was dissolved and with it the Select Committee became functus not even half the number of those who had submitted memoranda had the opportunity of going before the Committee.

The scope and substance of a desirable media culture and how it might be achieved has been indicated in the reports of the four committees appointed in 1994-1995 by the then Media Minister Dharmasiri Senanayake. Reference has already been made to two of them, namely the Goonesekere and Nandalochana Committees. A third committee was on the setting up of a National Media Institute.

On this subject there is bipartisan consensus in that the Gamani Corea Committee Report of March 1994 on the same subject covers much the same ground as the PA Government-appointed committee report, which amplified the earlier proposal and indicated how to set up the institute. The fourth committee reported on the need for adequate scales of remuneration which would attract talent and quality. It is no secret that other than at the ANCL, journalists' salaries elsewhere at the lower levels are not attractive. Advertising firms pay better.

IN view of the comprehensive nature of the four Committee reports referred to earlier, in particular the Goonsekere Committee report, the Government would do well to study those reports which are promotive of a desirable media culture and come up with a body of specific proposals to place before the public and invite public discussion there on. The Government must avoid tinkering with media law reform in its anxiety to produce something within the first hundred days in office.

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