Rights, reason and responsibility

It is heartening that this week witnesses the first thrust of serious media law reform in Sri Lanka in the presenting before Parliament, of amendments to the Penal Code and the Press Council Law repealing provisions relating to criminal defamation. The amendments will hopefully be followed by an even greater liberalisation of the country's regulatory framework relating to the media with the enacting of the Freedom of Information Act which is presently being revised in order to incorporate citizens' comments that have been received on the first draft.

While these developments in Sri Lanka receive priority attention from media watchgroups across the world, it is an interesting coincidence that parallel legislative amendments with the intention of correcting laws that unjustly prevent expression, are currently being contemplated by several governments in Latin America. The Chilean and Costa Rican governments in particular are reconsidering so-called "desacato" (disrespect) and insult laws making it a crime to insult public officials. In Chile, a bill has been introduced in the Chamber of Deputies that proposes eliminating and amending several articles in the Criminal Code which deal with disrespect laws. These laws, long criticized as "unjustly shielding government officials from public scrutiny", have been ruled by the Inter-American Commission on Human Rights (IACHR) to violate Article 13 of the American Convention on Human Rights, which protects the right to free expression. The Commission has recommended that countries bound by this treaty, including Chile, eliminate those laws. If passed, the bill will compliment the 2001 Press Law, which eliminated some of Chile's most repressive defamation provisions.

The Chilean push towards legislative reform relating to the media follows a similar move by Costa Rica two months ago to repeal Article 309 of the Criminal Code which made it a crime to insult the dignity of the president and other government officials. These initiatives in the Latin American region together with the Sri Lankan process of legislative reform in South Asia are being welcomed by media activists and watch groups who see the proposed reforms as setting an important precedent internationally.
As far as Sri Lanka is concerned, while the proposed legislative changes is reason for jubilance indeed, the time is also opportune to reflect a while on the manifold parallel responsibilities that will now be visited on the media in this country as a necessary consequence of this relaxing of Sri Lanka's media laws.

Such reflection is crucial at this moment for fairly straightforward reasons. It is undisputed that while the country's media laws continued to be archaic and worse yet, were used in a typically sledgehammer fashion by successive governments for their own political agendas, it was easy for the media to retreat behind the shields of victimhood and claim sympathy for its plight. A reversing of the roles however will impose an onerous burden on the media to use their new found freedoms wisely and on the media industry to devise appropriate and effective safeguards that ensure this. The alternative would be to face a distinct counter reaction against media freedoms that would, in the fullness of time, rebound adversely on the media itself.

In these ongoing debates, the exact manner in which the right to privacy vis-a-vis the right to expression could be properly balanced, continues to occupy pride of place. At first glance, the issues seem clear. Private action of public figures can be exposed insofar as it reflects on public conduct. All other comment is taboo. This reasoning has developed from the self professed role that the media has claimed to itself, as pointed out by a South African rights expert, Johann Van Der Westhuizen, " to investigate and disclose possible malpractices and abuse of power in an administration, together with relevant aspects of the professional and private conduct of those putting themselves forward as leaders." But, as with most highly profound assertions, this too is riddled with holes. What are "relevant aspects"? What exactly is private conduct? Indeed, what is privacy? The convoluted explanation by the Justice Committee on Privacy and the Law in the United Kingdom that privacy is "that area of a man's life which, in any given circumstances, a reasonable man with an understanding of the legitimate needs of the community would think it wrong to invade" only provides half the answer. In a particular situation, the judgement made by a journalist can only be highly subjective. One could very well argue that a later assessment of his conduct by a judge called upon to decide whether the journalist had infringed the right to privacy in writing as he did, would be equally subjective. Both individuals would be governed, to a large extent, by their inherent prejudices and definitions of what constitutes privacy, both of them in conflict with each other but retaining elements of truth within their own thinking. In a sense, this is the essential problem with the interlinking of the freedom of speech and expression and the right to privacy. The answer therefore to the question " Is there a right to publish true but unwelcome, damaging and intensely private information about individuals?" remains highly problematic.

In that sense, Nigerian writer, critical thinker and Nobel Laureate for Literature Wole Soyinka's trilogy may well be taken as useful guiding principles for the media. Soyinka discusses his trilogy, namely Rights, Reason and Responsibility, firstly by pointing out that the first Declaration of the Rights of Man, born out of the French Revolution, later to have a profound effect on subsequent international human rights documents, was based on the principle that the human being is a reasoning animal. It was from this capacity to reason that his rights flowed. Reason implies a sense of proportion, the ability to sift through evidence and demarcate zones of truth, probability and absolute falsity. Reason also means the capacity to be able to extract a semblance of order amidst a welter of facts, to identify cause and effect and sometimes, even to deduce effect from fact long before the former becomes an actuality.

The exercise of reason could be rightly demanded from any profession that bases its existence on fundamental human rights. In this interplay of Rights with Reason, Responsibility is also crucial. Rights are simply not sustainable without a sense of responsibility, otherwise society becomes lopsided- one sector asserts and enjoys its rights while another pays the price. The whole forms a tripartite trust. As an eclectic news consumer like most people, Soyinka makes the point that he has the right to demand the fulfillment of this tripartite trust by the media.

Soyinka had the American media specifically in mind but his warnings may serve equally well for the Sri Lankan media as well. Importantly, his thinking underscores the fact that journalists do not have power to direct that their columns or editorials be enforced through bureaucrats or through service personnel. The ultimate power of their word depends therefore on their individual credibility. It is through this that their influence could be at once, minute or very great. A credible journalist is, in effect, a professional who recognises the value of Rights, Reason and Responsibility as leading to a greater believability which in turn leads to greater power. Journalism is now called upon to provide more than just news and information but also a space for public dialogue, for the interplay of opinion and comment in the dealing of common issues, across geographical, national, racial and ethnic boundaries and for the investigation of public issues. Soyinka's trilogy thus becomes essential if such a dialogue is to be beneficial and healthy in this country. The Sri Lankan media can make their demand for greater and better rights, including the right for an overarching Freedom of Information Act on this basis and this alone.

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