Sri Lankans need no reminder that we are governed by an Official Secrets Act, notwithstanding the very pedantic announcement made by the Defence Ministry this week.
The Defence Ministry's announcement is worrying for more reasons than one however. In its press release this Friday, the Ministry notes that by reason of this Act, all public servants are required to maintain strict reticence over sensitive information that may be used by adverse elements to damage national interests. It is further observed that 'impotent leaders in political spheres and certain unscrupulous journalists have been making an absurd cry over not providing military casualty figures to them' and that "some of them are still engaged in a sisyphean effort to reduce the morale of troops and public faith on armed force by issuing exaggerated casualty figures and speaking ill of the armed forces commanders. Many of them boast about their connections with military personnel on the field and try to justify their claims."
Experiences in the United Kingdom
In support of this claim, the Ministry has used a recent instance in the United Kingdom where apparently, an army colonel has been arrested for allegedly leaking casualty figures in Afghanistan to a human rights campaigner. It goes on to predict that this individual will be tried in the Old Bailey and refers moreover to the severity of the punishment that may be imposed.
All these beautifully tailored efforts calculated to strike the fear of God or the devil as the case may be, to the hearts of our public servants as well as journalists miss the central point in this entire discussion. This is that in terms of the law prevalent in the United Kingdom, (influenced as this has been by the decisions of the Strasbourg institutions, interpreting the right to expression in the European Convention), there are strict limitations to the laying down of conditions wherein the freedom of expression could be limited on the plea of official secrecy.
The use of this Act has come under severe judicial scrutiny where for example, in the ABC case in 1978, (involving a prosecution of two journalists under this section), the judges stated that charges under this section should be brought only in the clearest and most serious cases. The cases against the journalists were then withdrawn (see Tom Crone, Law and the Media, Focal Press, 1995, at page 178).
The Sri Lankan Act is modeled not on the current secrecy legislation in the UK but on the old British Official Secrets Act of 1911 which was enacted as a consequence of government hysteria in the pre First World War period. This Act had been critiqued as allowing a 'breeding ground of abuse", by eminent British jurists. Owing to pressure for reform, the United Kingdom government, in July 1988 published a White Paper for the reform of particular sections of the UK Act which reforms passed into law thereafter through the Official Secrets Act of 1989.
The current British law is therefore a vast improvement on the earlier situation even though it remains defective in many respects, as for example, it does not allow a public interest defence. At every point that it has sought to be used by the government, there has been staunch opposition by journalists.
The Sri Lankan Act and its inapplicability
Yet, the situation here is far worse and for years, academics and journalists have been urging reform of Sri Lanka's Official Secrets Act No 32 of 1955. The problem stems particularly from the definition of an 'official secret' which states that an official secret means any secret official code, word, countersign or pass word, any particulars or information relating to a prohibited place or anything therein. These sub-sections are inappropriately broad enough in their application. However, the remaining sub-sections are even more problematic. Thus, an official secret has also been defined to mean, firstly any information of any description whatsover relating to any arm of the armed forces or to any implements of war maintained for use in the service of the Republic or to any equipment, organisation or establishment intended to be or capable of being used for the purposes of the defence of Sri Lanka and secondly, any information of any description whatsover relating directly or indirectly to the defences of Sri Lanka. A secret document meanwhile is defined to mean any document containing any official secret (see the interpretation section).
Vague and indefinite definitions
These definitions are vague and more appropriate to the times in which the Act was enacted rather than in the context of the modern interplay between freedom of speech and the right to information. The obnoxious nature of these definitions come into a further troubling focus when the sections of the Act that apply to the practical situations in which they could be utilised, are examined. Thus, Section 6 (1) of the Sri Lankan Act is to the effect that, any person "for any purpose prejudicial to the safety or interests of the State…(who) obtains, collects, records, publishes or uses or communicates to any other person, any official secret or secret document or any information which is calculated to be or might be or is directly or indirectly useful to any enemy.." is guilty of an offence under the Act and is subjected to dire penalties upon conviction. It also provides (Section 6(2), that on a prosecution under this section, there is no necessity to show that the accused person was, in fact, guilty of any particular act tending to show any purpose prejudicial to the safety or interests of the State but would be sufficient if this is shown from his or her conduct or character or if such person was not acting under lawful authority.
Opposition should be manifest against the Act
Any threat to use the Official Secrets Act should be rejected intoto by the media community here. Some years back, there was a move by the Government to amend the Official Secrets Act in order to "prohibit the leakage of Cabinet news." A three member committee comprising senior public servants and lawyers was given two weeks to examine the provisions of the Official Secrets Act and other "regulations" and report back to the Cabinet in this respect. Wiser reflection however prevailed and this idea was dropped.
We need to have good counsel applied to the current situation in hand as well. Efforts to use the Act, (motivated by political interests and undeterred as they are by any considerations that pertain to the Rule of Law prevalent in functional democracies), must be stopped at all costs.
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