Smiling Tigers, corruption and national security

By Kishali Pinto Jayawardena

Those of us with uncomfortably long memories may recall that the varied censorship regulations imposed by governments of both the United National Party and the Peoples Alliance in Sri Lanka's recent history possessed certain common elements.

First, they were all phrased in unreasonably broad terms. Secondly, the thinly disguised excuse given for their enactment, almost without exception, was "irresponsible" media coverage of the war. For example, the Kumaratunge administration imposed the censorship regulation of 5th June 1998 stating that information relating to military operations and strategies was being leaked out. It was then said that the censorship was necessary to restrict reporting the figures of the dead and the injured so as to avoid public agitation. The real purpose of the regulations, of course, was to sanitize the flow of information and to deaden criticism of the government's military policy. Indeed, this was the case in regard to the many and varied emergency regulations imposed during the time of the predecessor United National Party regime as well.

All these common elements are reflected in the thinking of the Mahinda Rajapaksa presidency. Yet, there is one important difference as demonstrated by this Monday's censorship regulations that were withdrawn two days after they were enacted. And this difference, one may hasten to add, is to the negative rather than to the positive.

Thus, even though the regulations imposed in previous years may have been inimical to freedom of speech and information, they generally refrained from prohibiting critical reporting on the procurement of arms and supplies. This reluctance to restrain reporting on the procurement of arms and supplies was not through the goodness of heart on the part of these politicians who were most eager in rushing to the government printers with their draft regulations in hand. Rather, it was through a reluctant acknowledgement that critical scrutiny of corruption in the procurement of arms and supplies involved matters that ought to be legitimately placed in the public domain and would be upheld as such by any court of law if the impugned regulation was brought before it.

The Johannesburg Principles on National Security, Freedom of Expression and Access to Information (quoted with approval by the Sri Lankan Supreme Court) makes explicit that restrictions on freedom of expression based on national security interests would not be legitimate if their purpose was "to protect interests unrelated to national security, including for example, to protect a government from embarrassment or exposure of wrongdoing or to conceal information or to entrench a particular ideology"

So, past regulations have always been careful not to overstep this line. For example, the 1998 regulation did not prohibit reporting on arms procurement but stipulated caution in regard to communicating any news relating to operations carried out or about to be carried out by the forces or the police, the deployment of troops or personnel or of equipment including aircraft or naval vessels. It also prohibited any statement relating to the official conduct or the performance of the Head or any member of the Armed Forces or the Police Force. This formulation was reiterated thereafter in succeeding years.

However, this Monday's aborted extraordinary gazette notification bringing censorship into force, specifically imposed punishment for reporting interalia, on 'the availability or use of arms, ammunition or other equipment, including aircraft or naval vessels by the armed forces or the police force (including the Special Tasks Force).'

Most revealingly, it went on to prohibit ' the proposed acquisition of arms, ammunition or other equipment, including aircraft or naval vessels by the armed forces or the police force (including the Special Tasks Force)' which pertains to any military operation or other military activity. The proposed punishment, upon trial in the High Court, was rigorous imprisonment for not less than three months and not more than five years. There was also provision for the imposition of a fine upon conviction.

It is no answer to say that these regulations were withdrawn almost as soon as they were enacted. Indeed, such a sequence of events gives rise to apprehensions as to the very functioning of the office of the Presidency. Surely, emergency regulations and in particular, censorship regulations are not akin to invitations to a musical show, to be issued and then withdrawn? The very issuance reflects adversely upon government policy while its hasty withdrawal shows the inchoate nature of governance. The assertion meanwhile by government spokesmen that the withdrawal was due to the 'good behaviour' of the media during this short intervening period of issuance and cancellation, is so farcical that it does not merit serious analysis as is the wholly illogical argument that the aborted regulation had been introduced in order to prevent communal clashes. Such statements only draw ribald comment. In a time of unprecedented corruption which is being inquired into by committees of judges and parliamentarians as the case may be, such proposed measures strike an extremely discordant note.

Extraordinary perseverance may undoubtedly mark the efforts of the security forces on the war front. The rewards for such diligence may be commendably considerable such as the successful targeting of the Liberation Tigers of Tamil Eelam's 'Smiling Tiger' S. P. Tamilchelvam this week. But this does not mean that the government should be given a blank cheque to govern this country or act with impunity in respect of the rights of its people, Sinhala, Tamil, Muslim and others.

The clearly schizophrenic nature of current government policy is well seen in recent proposals to allow the Attorney General to take the findings of (politically appointed) Commissions of Inquiry as a basis on which to launch prosecutions without stipulating further police investigations while on the one hand, not allowing the actual investigators to do their job effectively and independently. For example, the justification advanced by the Criminal Investigations Department (CID) in regard to the recent arrest of a young Tamil journalist on the basis of his race is shameful indeed. Is it small wonder that the majority community is called racist when actions of this nature are implicitly encouraged? In this particular case, we had courageous judicial intervention but this is not necessarily so in all cases. The DIG, CID should have been subjected to disciplinary inquiry forthwith which has not happened. Instead, when police officers act honourably, they are transferred out of office as what happened to another DIG, CID some months back in relation to another incident when he refused to obey the whims of the political command.

This column has been ceaselessly calling for effective prosecutions of errant members of the security forces and the police. By this, it is not meant to advocate a process of kangaroo justice purely by notching up the numbers of convictions, which are currently at a most meagre level. On the contrary, what is called for are independent investigations and a reasonable application of the law, as much to prevent the good name of honourable law enforcement officers being tarnished as to bring justice to the victims in these cases. If this essential balance is not reached, the supposed vanquishing of the 'enemy', (in whatever optimistic numbers of Tigers, smiling or otherwise), will not suffice to restore our collective good name.