The media's confrontation with shadowy unknown assassins

By Kishali Pinto Jayawardena

In past decades, Sri Lanka had experienced censorship of the media in a blunt, sledgehammer-like manner. There were times when not only defence news reports but even analytical comment on the workings of government was slashed across by the scissors of the Competent Authority. In May 2000 for example, consequent to the capturing of the Elephant Pass military complex in April of that year, emergency regulations 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.

Editors were directed to submit documents, editorials and articles prior to publication and were threatened with the banning of their newspapers and the shutting down of the printing presses. Equally deterrent sanctions were imposed on the electronic media. Moreover, the Competent Authority was 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, which unwarrantedly wide discretion, the amiable gentleman in authority at that time, used to the most clumsily annoying optimum. Large sheets of newspapers were slashed by the red line and infuriated editors, news editors and columnists from across the media came together in a rare show of solidarity and appealed to the Supreme Court to prevent this arbitrary wielding of powers. The Court responded by granting leave to appeal but substantive hearing was rendered redundant due to the contents of the regulation being revised thereafter.

What is interesting is that at all times, critical commentary and reporting on issues that touched the political ego were likened to national betrayal. Thus, I recall the imposing of this heightened censorship being justified by then President Chandrika Kumaratunge to the Hindu on the basis that "certain newspapers were guilty of treachery and had to be suitably disciplined"(The Sunday Times, 25th May 2000).

While there is no Competent Authority directly imposing censorship, the extent of the indirect censorship that is being imposed by the government is far more insidious and perhaps far deadlier than the blunt blows of the past. It is always easy after all to confront the known enemy and to find, in fact, a certain amount of humor in the blunderings of an incompetent hand which would strike out even reasoned analysis of a political situation under the unjustifiably broad rubric of national security. On the other hand, dealing with shadowy unknown assassins is incomparably intimidating.

It is this bludgeon of indirect censorship that is being used against the senior defence columnist of the Sunday Times by the withdrawal of his security personnel and which was evidenced in that now infamously threatening phone call to the editor of the Daily Mirror by the Defence Secretary some months back. The logic is nauseatingly the same; national betrayal or treachery, as the case may be, though the means employed are different. Meanwhile, those in the frontlines of power continue to fatten themselves at the expense of the public purse and standards of civic life are so degenerated that an uncouth deputy ministerial potentate has the gumption to plead guilty to forgery of a cheque but yet escape with a fine. So who exactly is engaging in treachery, one may well ask?

This week, I was told by people that there are now moves to redefine terrorist activity in terms of the current emergency laws as any activity that is critical of government. In other times, such talk would have been dismissed as being too ludicrous to warrant even cursory attention. However we live in times when such moves are not only possible but are indeed, probable. In fact, the phraseology of Emergency (Prevention and Prohibition of Terrorism and Specified Terrorist Activities) Regulations No. 7 of 2006 (currently in force) already paves the way for an even broader definition of terrorism. The phrasing of 'terrorist activity' in Regulation 20 of the 2006 Regulations, defines "terrorism" to mean "any unlawful conduct", which, inter alia, "threatens or endangers national security", "intimidates a civilian population or group thereof", "disrupts or threatens public order", "causing destruction or damage to property." The offence is attracted if such conduct is inter alia aimed at "threatening or endangering the sovereignty or territorial integrity" of Sri Lanka or 'any other political or governmental change. Patently, the latter prohibition is absurd as it can easily catch up legitimate critiques in its ambit.

The other provisions of these Regulations are as problematic; thus, Regulation 9 prohibits the provision of 'any information which is detrimental or prejudicial to national security" to any group engaging in terrorism or terrorist activity. Given the arbitrarily wide definitions of the phrases 'terrorism', 'terrorist activity' let alone 'national security' it is surprising that defence columnists still engage in critical writing. Further expansion of prohibited activities along these lines is therefore not surprising. As we can see, slowly but surely the spaces for democratic expression are being eroded to the extent that this will soon become not a country fighting terrorism but a land where the people themselves have become terrorized beyond all boundaries.

Sri Lanka's degeneration in this respect occurs at a time when, despite the assaults on democratic freedoms in the name of the war against terror led by the Bush administration in the United States, institutions protecting civil liberties, including the United States judiciary have intervened in order to rein back the worst of the excesses. This is what one must concede about the democratic process in these countries; regardless of however bad the attacks may seem, the system has a way of righting itself. Some time back, Sri Lanka could also afford to think like this. Sadly, this luxury appears no longer to be taken for granted.
Internationally, jurists have now formally acknowledged indirect and not only direct means of censorship. This Friday for example, Argentina's Supreme Court in courageously liberal use of standards established in international human rights law, held that the withdrawal of advertising as retaliation for critical reporting amounted to 'indirect censorship' and consequently violated free speech rights. In Latin America as in Asia, the use of government advertising has been a potent weapon in the hands of unscrupulous government politicians when they wish to punish unfriendly media and reward the voices of their masters and mistresses. The condemnation of such practices by Argentina's Supreme Court serves as good example for other jurisdictions. This is just another extension of the principle already affirmed by Sri Lanka's Supreme Court in past years whereby the use of state resources by the government in power has been constitutionally prohibited. Arbitrary allocation of advertising is just as much abuse of state resources as the misuse of a government vehicle for personal use. In the Argentinian example, the advertising was withdrawn after the newspaper in question had consistently exposed a bribery scandal on the part of the provincial administration. How many similar examples are evidenced in Sri Lanka today? Indeed we have also seen the withdrawal of advertising for some newspapers purely due to their critical reporting.

The fact that these practices are resorted to with impunity, the fact that we tolerate such callous erosion of our freedoms of expression and information illustrates not only the bankruptcy of our politicians but also, without doubt, the veritable bankruptcy of Sri Lankan society itself.