COMMENT

Criminal defamation Vs. Media freedom

By Victor Ivan

Although media freedom is considered to be an essential ingredient of a democratic political system, Sri Lanka today is amongst the group of countries with the least amount of media freedom according to accepted standards. However, what the media Minister Dharmasiri Senanayake said at the press conference summoned by him soon after the PA came to power was that government could be considered to be one brought to power mainly by the media. The PA's election manifesto contained a large number of very alternative proposals about reforms which the PA would bring in for the purpose of ensuring media freedom. Of those promises the only one which the PA government has so far fulfilled is the one about reforming the law about parliamentary privileges. However, instead of abolishing the law of criminal defamation, the present government will go into history as the one which has instituted the largest number of court cases against media personnel.

The number of court cases so far filed under the PA government against newspaper editors is twelve. One of these was against Sinha Ratnatunga, Editor of The Sunday Times. Another was against the Island Editor, Gamini Weerakoon. Two cases each are instituted against the Sunday Leader Editor Lasantha Wickremathunge and against Bandula Padmakumara former Editor of the Lakbima. Six cases were filed against Ravaya.

Cases have been filed against these editors on the allegation that they had defamed the president. In two of them the high court found Mr. Ratnatunga and Mr. Wickramathunge guilty. Although Mr. Padmakumara was acquitted by the high court in the case instituted against him, the government appealed against that judgment. That indicates the extent of hatred the government had for editors who publish anything bad about the government.

In a case of criminal defamation the evidence given by the person so defamed is considered to be vital. However, the president did not give evidence in any of these cases. On the other hand, although the president has made controversial public statements about editors who were not to her liking, those editors had no way of going to courts against her. This shows that the principle that all are equal before the law does not apply always.

Although the Editor of The Sunday Times appealed to the Court of Appeal against the judgment of the high court it was to no avail. The judgment of the appeal court was condemned by Article 19 which functions as an advisory institution of the UN on freedom of expression.

A fundamental tenet of the civilized world is that only the civil law and not the law of criminal defamation should be employed against media persons who have committed defamation. That is why many countries in the world have abolished the law of criminal defamation. The theorists who want to defend the law of criminal defamation often say that what is good for England cannot be bad for Sri Lanka. Here we may say that on the one hand, the provisions employed in England in enforcing the law of criminal defamation are different from those employed in Sri Lanka, and that, although the law of criminal defamation has not been formally abolished, England has abandoned for more than two decades the employment of that ancient, out- of-date law against media persons. However, in 1990 the Attorney General's Department in England attempted to employ it to protect Salmon Rushdie who was respected by the English people. That was against the video film 'International guerrillas' produced in Pakistan in a manner that defamed Salman Rushdie. The Attorney General's Department in England had to give up the idea when Salmon Rushdie declared in public that he could go before the courts and give evidence in support of the reference if the law of criminal defamation was used to protect him. The Attorney General in England, unlike Sri Lanka's, cannot use the law of criminal defamation to serve the narrow interests of the government. In Sri Lanka the final decision as to whether a person should be prosecuted under the law of criminal defamation is taken by the Attorney General. However, in England the Attorney General alone cannot take that decision at his own discretion. He has to go before the high court and seek its approval for prosecution after proving that there had been a defamation serious enough to deserve prosecution.

The contemporary world considers that criticisms of persons associated with the administration of the state by the media more and more is an essential condition for the health of democracy. In the civilized world there is no judicial tradition which punishes media persons simply because an exposure of a state administrator or a politician connected with state administration contains material which is not true and therefore is defamatory of the said state administrator or the politician.

Today the civilized world also considers that when a report published is wrong, it is an essential condition to prove that the media person concerned wrote it knowing that the material contained in the report was untrue. This principle for the protection of media persons was first established in 1964 in the case New York Times Vs. Sullivan.

Shortly after the PA government was formed in January 1995 a committee consisting of R.K.W. Goonasekera (Chairman), Shirani Bandaranayake, Rohan Edrisinha, Jayampathi Wickremaratne, K. Javid Yusuf, Victor Gunwardena and Lucien Rajakarunanayake were appointed to find out what legal reforms were necessary to ensure media freedom, and to make necessary recommendations. The report containing the recommendations of that committee was handed over to the media minister on May 27th 1996. The recommendation of the committee was that the law of criminal defamation should be abolished or the procedures must be brought to the level of those existing in England so that there would not be any room for arbitrary prosecution. However, instead of implementing the recommendation of that committee, the government appears to enjoy hunting media persons by means of outdated laws. According to the principles set out in international agreements that Sri Lanka has entered into, in this sphere, there is no legality in the cases filed against newspaper editors.

Although it may be possible to find all these editors guilty under the law of criminal defamation, the government will have to be ashamed if any of these editors go before an international court some day.-

The writer is the editor of Ravaya

PARLIAMENT

UNP seen shedding its lordly image

By Dilrukshi Handunnetti, Our Lobby Correspondent

The 11th Parliament has its weekly performers. If the week belonged to UNP's Mahinda Samarasinghe, the Legislature had its light moments with road shows- thanks to the UNP which is getting galTvanised into opposition politics and shedding its lordly image. In simpler terms, playing to the gallery.

With the three day legislative sessions being reduced to two days, largely due to the government's potent fear of having the UNP in its destructive mood defeating the supplementary estimate for the Samurdhi Movement, only the adjournment motions injected some colour to an otherwise dull House.

In the aftermath of the Jaffna district MP Maheswaran's bullock cart ride to the august assembly, Wednesday had another twelve UNP legislators attempting to ride bicycles, some like Lilantha Perera and Neomal Perera in their ties and long-sleeved shirts- all in a bid to protest against the spiralling cost of living. And McDonalds seemed an appropriate place to start the hoax!

The five-day long condolence vote on Sirimavo Bandaranaike, ended with her virtues being extolled to mournfully depleted government benches.Wednesday evening saw some colour being injected to the House, with the UNP playing the opposition game to the hilt to thrash the PA administration over its alleged failure to impress the Development Forum in Paris early this week.

By the time UNP's Karunasena Kodituwakku stood up to move the adjournment motion, the House was engulfed in another warfare with an additional allocation of Rs. 60 million for the Speaker's Residence drawing the JVP's wrath and the UNP's customary noncommittal silence. The House reverberated with owl-like screeches and never heard of noises.

Armed with statistics, Kodituwakku demanded a full disclosure of what was pledged by Sri Lanka to gain foreign aid, and the Aid Consortium's conditions such as the setting up of three commissions, media reforms and de-politicisation of vital institutions. Explaining the purpose of the session, he noted it was an opportunity for the donor countries to evaluate Sri Lanka's plans and in turn, for donor countries to pledge support to investment programmes here, but not an occasion for leaders to flash big smiles and come empty handed, he said .

Dispelling the mournful gloom in the House after days of debating a condolence vote, UNP's Mahinda Samarasinghe riding his hobby horse said he saw a contradiction in the government- and its conduct. At a time when people needed opportunities and not handouts, the government has politicised vital institutions, a fact which did not escape the attention of the Development Forum, he noted.

Stealing the show, Mr. Samarasinghe explained the findings of the European Union election observer group which was discussed at the world Bank forum. The observers regretted and condemned the anomalies in democratic governance and the practices which threatened democracy here. They further urged that irregularities be addressed and perpetrators be immediately brought to book.

Mr. Samarasinghe's remarks seemed to upset the House, with the occasional jeer escaping from unruly government ranks. And the mention of the Bindunuwewa detainees issue, another sour point, caused more unrest among members. But holding sway, the MP critiqued that the government was returning virtually empty-handed. That was the verdict on the PA's performance- not just in the economic sphere, but also in the areas of human rights, good governance, resolution of the conflict and the politicisation of vital institutions. "You have nothing to harp about, but a lot to regret and much to change," he sniped.

He went on to quote the EU report: "Despite large anomalies on election day, unfair access to government media, a failure to end the campaign on the due day and PA candidate's large misuse of state resources which did not allow the reasonably acceptable expression of public will at the concluded poll" he noted."

Growing militant, he thundered that the UNP was not interested in 'reasonably acceptable versions' but only in a free and fair poll which would be a true reflection of public will, and the opposition not to be subjected to treatment of living hell!

Enjoying his kill, he took on the presidential comments about constitutional amendment. Quoting reports, he sniped that the President was not averse to a Constitution which was slightly illegal! She had explained to the donor community that she enjoyed no majority in the House owing to a bizarre constitution which also prevented her from repealing it, but would still do it despite some constitutional constraints.

As government opposition grew, he continued that with 1/3 of the budget being decidedly financed by foreign aid, the government should explain how it proposed to bridge the deficit. And for this the government needed to work with all other parties and achieve a solution collectively, but not the draft constitution fiasco again, he warned.

Rubbing salt, he thundered that a constitution should stand the test of time and should be introduced according to the present constitutional provisions. "It should be a reflection of this nation's aspirations, not that of a few politicians" he said in conclusion.

But JVP's Sunil Handunnetti speaking thereafter could not rise above the customary JVP attitude of casting the donor community in a negative light. For him, it was more like a money lenders' association getting poor nations to bid. " And the two things they wish for at present are a federal constitution under the pretext of solving the war and levying a fee on tertiary education. This time, the demands are on profit-making education" thundered the fiery Deniyaya member.

The Deputy chairman of committees, Lalith Dissanyake also made his maiden speech- but confined his role to defending the Samurdhi as a non-political movement. "Haven't we had the hal potha, 8 kg of gram and Janasaviya. Don't give political undertones to poverty alleviation projects which affect all people without political distinction," he appealed.

And it seemed that Minister Nandimitra Ekanayake is fed up with JVP theories- as he zealously took on the ten member team.

" The JVP has nothing else to say but portray the PA as yet another servant of the lending agencies. The Paris meeting has just concluded, and already the criticism has begun," he said.

The members spoke about the police, elections, human rights and everything under the sun. Citizens were filing FR petitions today at the drop of a hat. And the UNP on the other hand has joined the JVP to lambast a government which restored the right to life, he said, clinging to the usual PA line.

It was Harendra Corea- a new convert to PA politics who took on the UNP, and Mahinda Samarasinghe in particular, for the unpatriotic deed of campaigning against the government.

" It is only an irresponsible opposition which would do such a traitorous thing as to campaign against one's own country. The UNP has done its dismal best to prevent the Development Forum from considering Sri Lanka in a positive light. They have shamelessly taken politics abroad, handed over memoranda, canvassed with missions and held pickets in the Parisian streets to embarrass us. Shame on you," he thundered, with the young UNP turks shooting back- that turncoats were not taken to Paris.

It certainly doesn't augur well for a country to have an opposition hell bent on giving the government a bad name- with crucial repercussions such as inadequate assistance at a crucial time. The government and the opposition should act with responsibility and restraint- and that's a thought the representatives of the 11th Legislature should bear in mind, with a new year, and a new beginning just a few days away.

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