Protecting a finely poised balance of the media and the law

By Kishali Pinto Jayawardena

The awesome power wielded by the proper utilization of the law and (in a different but nevertheless equally potent manner) by the media is unparalleled. At times, when both these forces work for the good, the impact on the democratic process can be immense. We saw this in Sri Lanka during the early nineties through a healthy collaboration between the judiciary and media institutions that enforced accountability on the part of a United National Party regime which had violently overstepped its power. Again, in India, the ambitious spread of public interest litigation after the coercive use of emergency powers by the Indira Gandhi administration resulted in a democratic pact between the judges of that country's topmost court and media persons. This did not come about through secret coercive phone calls made by a judge to an editor or journalist or the offering of bribes (whether of cash or of kind).

Instead, this pact was played out in the full glare of Indian public opinion. Strong media support was evidenced for judicial 'activism' compelling politicians to be accountable through the declaration of their assets and submitting them to the process of the law when corruption was evidenced, freeing prisoners unlawfully kept in prison without charges being brought against them and in countless other instances when injustice was proven. The declaration by the Indian judges that the right to life does not comprise only an animal right to live but also comprises all the attributes that go to make up the quality of life, still rings in our ears after decades of jurisprudence.
Equally, the Indian media was quick to submit judicial officers to harsh reprimand when they overstepped their authority. The enactment of a Contempt of Court Act in India as way back as in the seventies,(which has worked by and large for the public good), evidences this in no uncertain terms. This law, incidentally, prescribes not only the substantive context within which contempt could be found but also lays down a fair procedure to be followed.

Thus, for example, a lay litigant cannot be summarily convicted in terms of this law to one year of rigorous imprisonment purely for speaking loudly in court or filing motions in support of his application. Importantly, the Indian law stipulates that contempt can be found only where there is substantial interference with the due course of justice and a sentence of imprisonment imposed in that regard cannot be for more than six months. Such farsightedness on the part of the Indian system as far back as the seventies needs to be admired. In contrast, Sri Lanka has yet no law on contempt and this is left to the discretion of individual judges. While such discretion can indeed, be to the good in the hands of a fair minded judge, the contrary is only too unfortunately evidenced when the judicial temperament is neither fair nor restrained or indeed, when the process is determined by political considerations or outraged egos.

As much as the Indian judiciary and the media worked together at that time, a similar relationship was evidenced in Sri Lanka particularly during the early and mid nineties when the efforts of the Supreme Court secured basic rights such as freedom from arbitrary arrest and detention, free expression (which directly benefited the media in many cases) and freedom from torture. That such developments took place within a structure that was far more constitutionally parsimonious than its Indian counterpart, (for example in denial of the right to life, the absurd fettering of the right to move court only within one month's time of knowledge of the violation and the explicit shutting out of public interest petitions) only made them, that much more special.

Two indispensable requirements need to be manifested however for the relationship between the media and the law to work successfully. Firstly, individual judges are not expected to abandon their personal prejudices and preferences and conform to the standards of an all wise, all knowing judicial Hercules. Instead, far more relatively, a judge, when hearing a case should free his or her mind from political considerations or indeed, any suspicion of bias towards either party. A judge who is internally politically corrupted presents a far greater danger to a democratic system than if the executive or legislature attempts to intimidate. In the latter situation, the enemy is easily identifiable. But in the former case of internal judicial subversion, the enemy is within and can prove to be extremely difficult to rout, as experience indeed, has shown.

Secondly, (and from the media's side), journalists need to demonstrate indomitable integrity and honesty in dealing with the law and the judiciary. Where the media is compromised for various reasons, the consequences extend beyond the fate of individual media persons. It matters little whether the media has been compromised for ideological reasons or for mere political lucre. In the end, the consequences are precisely the same.

Let me take two recent cases in Sri Lanka to illustrate this example. The case of Parameswari Munusamy is the most well known for obvious reasons. Immediately after her arrest, the victimization campaign that was launched against her, (not only by the state media), was unbelievable. We were asked to believe that her connections with the Liberation Tigers of Tamil Eelam (LTTE) were a certainty even before the law and the investigative process had swung into motion. Her family members and friends were maligned and harassed. It must be emphasized that this campaign was not carried out solely by the state media. Instead, the moment that the first hysterical allegation was made against her, the process took on a momentum of its own. The fact that she was Tamil, was residing with another lodger who purportedly had LTE connections was enough to determine her guilt through trial by the media.

Ultimately, it took the commendable determination of a domestic media rights body as well as the involvement of several prominent journalists to press for her freedom. In this case, the response of the Supreme Court and of the Attorney General's Department in facilitating her release shows too, the manner in which even small victories may be wrung out of an otherwise horrendously resistant system.

Secondly, the far less headline gripping case of a traffic accident involving the death of a young journalist allegedly due to the reckless driving on the part of Christopher Gaston, head of the International Organisation for Migration (IOM), a Colombo based INGO (international non governmental organization) is another extremely good illustration. The hate campaign launched against Gaston was equally unbelievable. Shrill denunciations took place by political parties operating at full strength on the lunatic fringe of their belief that all internationals working in Sri Lanka are driven by their arrogant disdain for the Sri Lankan system and the law at best or were allied to terrorists at worst. Incautious statements by the police that Gaston had tried to invoke diplomatic immunity (which was denied by him) only made the situation worse.

Yet low and behold, what do we see last week, tucked away in an innocuous back page of our newspapers but the fact that the Attorney General had determined that there was no evidence against Gaston. Consequently, he had been discharged from further proceedings. What is even more interesting is that plaint had been filed against the driver of the van in which the deceased girl had travelled, for driving negligently and causing grievous hurt. Yet, there seems to be no response from our one time crusaders against negligent driving and no apology offered to the much maligned chief of the IOM. So, the logic seems to be that local drivers can be allowed to get away with blue murder on our streets while we hold aliens to a different standard of accountability?

Undoubtedly, the relationship between the media and the law is a finely poised balance, much of which is maintained by the moral courage with which the media responds to issues. Quite frankly, I find it hilarious that some of our domestic media sees fit to publish half length page articles on the current judicial crises in Pakistan or Bangladesh by foreign columnists while being loath to publish equally critical commentaries on the independence of Sri Lanka's own judiciary. While the reasons as to why such reticence is maintained may be well known, this can only amount to utmost hypocrisy and worthy of the fiercest condemnation.