Top political figures, editors of independent and state media, human rights activists, lawyers andformer judges under the aegis of the Friends of Media gathered recently to bring about more awareness on the widely criticised Criminal Defamation Laws in Sri Lanka. It is necessary for this awareness to go down to the people of the country and thus, The Sunday Times today publishes the wide ranging views expressed at the meeting held at Holiday Inn Hotel, on August 1.
Justice K.M.M.B. Kulatunge (former Judge of the Supreme Court):
Media freedom is enshrined in the constitutional article relating to freedom of expression. It entitles both an individual and the media as an institution to that freedom, but could be said to operate in a somewhat different manner with regard to each.
The media exercises that freedom in trust for the people, whereas the individual freedom is a personal exercise of that right. Therefore, though both are subject to the same restrictions, perhaps media freedom may be a little more valuable for this reason. If you do not have that freedom, then the individual himself may be curtailed, as his sources of information may become limited.
Freedom of expression, as it presently stands in our laws, is not subject to unknown restraints. The constitution lays down certain restrictions, namely racial and religious harmony, Parliamentary privilege, contempt of court, defamation, national security, public order, public health, morality and a wide restriction put down as being “ just requirements of the general welfare of a democratic society.”
Our legal literature and legislative enactments specify these restrictions in detail. All these restrictions are therefore already covered in existing law. If any further legislation is thought of, then please ask yourselves this question ‘what is the other mischief that is sought to be prevented?’
This question ought to be answered before we proceed with further legislation.
Now I come to the matter of acute controversy, namely what is criminal defamation? It appears to be a legacy from the United Kingdom law. In distinguishing between criminal and civil defamation, the position of the individual appears to be important. Over the years, the Law Department has played a major role in initiating prosecutions under section 479 of the Criminal Procedure Code. Since Wijesiri’s case, the AG has been able to forward a direct indictment, without investigation to the High Court.
A matter of some interest is that it is only in relation to high personalities such as the Head of State that this criminal defamation is being applied. The only exception to this was in the case of A.C. Alles, a former judge of the Supreme Court. This was concerning the famous Kularatne case when a relative of Kularatne criticised Justice Alles who had served on the Bench hearing the case. Charges were sent to the magistrates court where the matter was finally settled. I can remember this instance as being the on]y occasion where a defamation case was proceeded under Section 479 of the Penal Code in respect of a lesser mortal.
The situation as regards defamation differs in other countries. Clearly defamatory things are said for example about President Clinton and Princess Diana, but nothing is done. No action is taken. In the Hevamanne case, justice Wanasundera said that in those countries, there exists an open and permissive society whereas we are wedded to conservatism, fortunately or unfortunately. I really do not know whether this applies in general.
The point that I am trying to make is that in this day and age, when we have laws guaranteeing equal protection, we should reconsider this concept that when deciding whether to prosecute for criminal defamation the personality of the individual is important. After all, reputation is something that all individuals are entitled to. Should you make such a distinction between those high ups and inferior mortals? If a reasonably consistent policy cannot be followed, then the law of criminal defamation may have to be dropped entirely.
Victor
Ivan
I fully agree with former speaker Justice Kulatunge that the laws of
criminal defamation operate unfairly with regard to individuals. In England,
the situation is different where the court itself scrutinizes the matter
before a prosecution is permitted to be launched.
We are told as journalists to be aware of things happening in society, and to write about them, to protest about them. This, on the one hand is a duty imposed on us. On the other hand it lands us into situations fraught with immense problems.
One such instance in my life was when I received some information regarding allegations of bribery and corruption regarding then General Manager of the Railways Department W.A.K. de Silva. I thought that it was my duty to inform the general public about this, and accordingly I published it in the ‘Ravaya’. A civil defamation suit was launched against me for Rs. 10 lakhs. Not satisfied with this, an attempt was made to institute a criminal defamation suit on the same matter. However, at that time, the Bribery Department was already investigating the activities of the General Manager. What was sought to be done was to suspend this investigation and proceed against me. The political scenario meanwhile changed and with the death of President Premadasa, President D.B. Wijetunga succeeded to office. Attempts were made to influence President Wijetunga. The Attorney General spoke to the Bribery Commissioner about it . The then Bribery Commissioner made a note on the file that both the AG and the President had requested her to consider whether it was possible to drop the investigation against De Silva, and declare him innocent. I have a copy of that minute with me. It was for this reason that the then Bribery Commissioner had to leave her post. Another person was appointed. A week later, the prosecution was launched against me.
The problem that I wished to focus here is the role of the AG in all this. My case was heard in the Colombo Magistrate’s Court. My counsel objected on the ground that the matter should first go to the mediation board. However, state counsel argued that as proceedings had been instituted against me in the High Court, the matter ought to be transferred there. This was an outright lie, as no indictment had been filed against me in the High Court.
The Magistrate severely criticised the State Counsel on this matter. Some days later, he was transferred to Kekirawa. Later, the matter against me was dropped as W. A .K. de Silva left the country. But the practical problem that I wish to focus on is the situation that I was put into by publicising matters of public interest which the public ought to have known about. The allegations of bribery and corruption against W .A .K .de Silva were later confirmed by the Auditor Generals report.
The irony is that two persons actively involved in the proceedings against me from the Attorney General’s Department namely Thilak Marapone and Rienzie Arsakularatne have now found themselves on the opposite sides of the fence in the present defamation case.
Where the Attorney General functions as the pawn of particular politicians in power, his role in the whole process of initiating criminal defamation prosecutions is suspect. Retention of the law in its present form is therefore dangerous.
But The Sunday Times Editor Sinha Ratnatunga is somewhat fortunate in the support that he has generated. When this law was used against me I protested publicly. Nobody supported me. The fault lies not solely in the Attorney General’s Department, the standards of which has dropped drastically since the days of Shiva Pasupathi. I appealed to the Chief Justice, and the Bar Association through “Ravaya” to look into this matter, and see whether justice had been done. No one took any notice. Investigations are pressed by lawyers only against small persons. When big fish are involved, they back off. Nobody was willing to challenge those higher ups.
In conclusion, I would add that it is a tragedy that we are now discussing these laws of criminal defamation that should have been reformed a long time ago. The principle that public figures should be able to tolerate a higher degree of criticism about their activities has been long accepted in international law. The European Court has also declared this to be so. Along with this, media persons should also criticise constructively, and with a sense of responsibility.
(Please see page 13 also)xz
Ranil
Wikremesinghe
Ladies, Gentlemen and Convicts,
It looks as if I am in the dock today as the only politician addressing you among a number of lawyers and journalists.
It is not surprising that different opinions are expressed here. Unanimity cannot be achieved. The free media is a market place of ideas and it is for the public to choose, after having listened to all varieties and shades of opinion.
The media has played an important role during independence. When we look back, however, over the past 50 years, we see that great strides have been made in almost every sphere; be it education, infrastructure, economic or cultural development. But in one sphere we have not advanced. The freedom that the media enjoyed 50 years back is not present today.
Conflict between the government and the media is nothing new. But until the 1960s, the political arm of the government and the media co-existed quite satisfactorily. It was after this that relations deteriorated and we are in this present antagonistic relationship.
At the heart of the controversy is Section 479 of the Penal Code on criminal defamation, the one that is used to protect ‘superior mortals’ as the chairman remarked. In actual fact, I do not think that this section has given us any protection. It has caused bigger controversy.
What is written about is forgotten in a week or two, but when prosecutions are launched it remains in the public mind as long as the case goes on and thereafter.
The government has announced that it is going to repeal the 1978 amendment to the Parliamentary Powers and Privileges Act. If this is so, we might as well repeal Section 479. The media should take this up with the government and with Parliament.
The government has given notice of the appointment of a Select Committee of Parliament to look into the formation of a Broadcasting Authority, the repeal of the Press Council Law and the establishment of a media council. When this matter came up, I asked Mr A.C. S. Hameed to look into it and he suggested two amendments relating to repeal or amending of legislation that inhibits free expression and to provide guidelines for government advertising. Basing ourselves on this, we produced an amended draft which suggested that we amend the following legislation very specifically.
* Section 479 of the Penal Code
* Official Secrets Act
* Public Security Ordinance ( regarding the censorship laws we felt that
if censorship laws are in place, they have to be focused and limited.)
* Parliamentary Powers and Privileges Act.
The Minister has suggested that we should meet next week to discuss this further. The difference of opinion seems to be that the government thinks that the mandate should be limited to the R.K.W. Goonesekere report, while the Opposition feels that such limitation is not necessary, as the Select Committee may be hamstrung later on and we may have to come back to Parliament. The UNP would like a bi-partisan policy on the media. If we can have a bi-partisan policy on the LTTE, we should be able to follow suit with regard to the media. I would be the happiest if this was achieved.
If, however, we don’t come to an agreement, we would go ahead and make our recommendations after discussion with media persons on the nature of the amendments. We would support this at the next election.
The UNP has also requested for an independent Police Commission which is another matter which ought to be mentioned here.
Lastly, I would like to focus on the constitutional basis of the freedoms, including freedom of expression that we are talking about. The 1978 constitution has made these rights justifiable and given the Supreme Court authority to rule on challenges to the constitution and determine whether amendment could be by a 2/3 majority or a 2/3 majority and a referendum.
The foundation of these freedoms is the constitution. The manner in which the constitution is amended is laid down. Now, this constitution could be torn up. But then, how could your fundamental rights be guaranteed ? If you can convert the Parliament into a Constituent Assembly and by a simple majority tear up all these rights, what is the use ? One might say that all these rights will be included in the new document but there will come a time when someone else will do the same and not include it in the new document.
So, the defence of the constitution is the defence of all these media freedoms. The constitution would not be worth the paper it is written on otherwise. The 1972 Constitution departed from the Soulbury Constitution and fashioned a new Constitution in a manner that was agreed to by all political parties at that time, including the TULF. It was a historic necessity and quite different from the situation today.
There is no point discussing as to who should take the blame for the present state of the media. Politicians should certainly have their measure of responsibility. But we must also realise that unlike in the UK, US or India, we did not think that media freedom was sacrosanct. There has always been some excuse, even within media circles to justify the loss of independence of the media. But today, as politicians and as journalists we have seen what has happened and experience has made us wiser. So I do not think that this should be an issue that should trouble us forever. I hope that we can sort this out before we commemorate our 50th anniversary.
S.L. Gunasekara
I have to thank the organisers of this event for giving me the opportunity
to address you in the heat of this silent night.
I think the press are somewhat paranoid when they think that all politicians hate them and want to destroy them. I disagree entirely.
When the SLFP was in opposition, it loved the media in the same manner as the UNP loves it now, with the enduring passion of a Romeo for his Juliet.
But love is of different kinds. There are, what might be termed queer types of love. When the UNP was in power and the PA now in power there was this queer type of love summed up by Oscar Wilde when he said “ yet each man kills the thing he loves”.
The UNP while in power tried to kill the press. And now you find the PA doing the same thing. So you find that this love for the press which is held by political parties vary, depending on whether it is in power or not. Now why is there these strange varieties of love for the press? It springs from one source; the overinflated egos of those in power.
Not so long ago, a minister of the UNP said that he would drink soup from Premadasa’s slippers. I have some respect for that man, for he was at least honest in his sycophancy. But those who laughed at him are worse sycophants.
This climate of sycophancy has gripped our country. This is what results in a glorification of personality. Our leaders, however mediocre or sub mediocre they may be, lap up sycophancy, and cannot tolerate those who disagree with them. Therefore, whatever the PA or the UNP may say about liberalizing laws, they will never ever do it, because they need it to protect their artificial overinflated egos built up by those miserable sycophants.
Does any man need to be told how good he is? It is only if he is not good, that he loves to hear himself being praised. And any person who pricks the balloon will be the enemy.
This is why the laws of criminal defamation will not be abolished by politicians. I do not see anything wrong with criminal defamation provided that it is strictly defined. Defamation though generally a civil matter between man and man can be so horrible and so atrocious that it deserves a penal penalty.
In 1954, Ms Theja Goonewardene was charged for the criminal defamation of Sir Oliver Goonethilleke, and acquitted without a defence being called.
Then came a series of cases, launched under 479 of the Penal Code. There were other ways in which the press was bludgeoned. The section relating to sedition is one example.
There was one remarkable case in 1992 when then DlG Premadasa Udugampola made some discussions about some Black Cats or Green Tigers (or some such other quadrupeds) and this was splashed in the Aththa & other newspapers. There was an indictment framed against the Editor of the Aththa within 36 hours. This is an alltime record for an Attorney General’s Department in any part of the world. Of course, an independent judge acquitted without a defence being called.This is what happened then. So that it is somewhat strange to find politicians who supported such moves at that time, coming here and talking about a free press.
A comment was made from the floor by Mr Rohan Fernando as to why newspapers should not appoint a labourer as Editor, assuring him support if prosecutions are launched. I said ‘~why not?” Mr Ranil Wickremesinghe disagreed.
But what is the difference between this, and a bodyguard of a politician who takes the bullets meant for his master? That labourer is no different to a bodyguard of a politician. Yet the politician cocooned by his bodyguards, who sends a bodyguard as decoy to be shot at, takes high moral ground at this proposal to appoint a labourer to take the bullets for his Editor.
Where a person is defamed, it is that person and his family who suffers. But where the person in power is a sycophant it is the entire country which suffers, and unborn generation. Yet we have no law of criminal sycophancy. One eloquent example would be sufficient. When Anura Bandaranaike was leader of the Opposition, and heir apparent to the party crown, one could not even go to his house without tripping over someone saying how good he was and how bad Chandrika was. But after Chandrika won at the Provincial Council elections, suddenly all those who saw so much good in Anura and so much bad in Chandrika suddenly saw merit in Chandrika that they had never seen before.
Then, one could go to Anura’s house without tripping over somebody and falling down, but one could not go to Chandrika’ s house without tripping over all those same people. And what was the principle on which they switched allegiance ? It was simple. He was the heir apparent. She became the heir apparent, and the largesse that they could get was from her not from him. And these are the people who rule our country today.This is why we need a free press.
But all governments in power love one press, and that is the press to which my friend Ajith Samaranayake belongs, and that is the Lake House press. Whatever other newspapers may be, the Lake House press has been consistent at all times.
To the Lake House, the Government of the day is always the best that could ever be. Its leader is the kindest, the wisest, the most beautiful, the most liberal and the most humane. The Opposition, and its leader are the dregs of the earth.
Interruption by Editor of the Observer Ajith Samaranayake
“Please don’t drag me into this. There is nothing called Ajith Samaranayake’s Lake House”
S.L. Gunesekera;
I am not blaming any individual. I said your newspaper so that all here may know what newspaper is being referred to. Otherwise, when you speak of Lake House it could very well be the Lake House Bookshop (laughter from the audience) When I say Ajith Samaranayake’s Lake House, it can only be the paper. So I said like this, purely to avoid confusion.
I am reminded of a comment made by a Justice of our Galle Assizes some years ago when some people commented on the biassed conduct of the police. His remark was “ what is the use of a pack of sheep passing pious resolution in favour of vegetarianism when the wolf remains of a different opinion?’’
I do not know whether by all this, I would court criminal defamation myself. But if I do, my defence could be summed up in three words spoken by a Roman sage in the years gone by “ In vino veritas.” (After the wine, the truth comes out)
Javid
Yusuf
I propose to throw up a few ideas on today’s topic, and stimulate discussion
as it is for this purpose that we are gathered today. I have been a journalist
myself, and it is from this standpoint that I speak.
I would commence from reading a few lines from an Article XIX publication with which I am sure all of you journalists are familiar. This states that the function of the press is two fold, namely to inform the public about matters of public interest, and to act as a watchdog of government. We have observed in the past that those who are enthusiastic and vociferous about the media while in Opposition do not continue to be so when they succeed to Government. This does not necessarily apply to one government or another but it has been our past experience.
I see one reason for this. The government in power and the media are two very strong institutions. They are institutions that exercise and exert a very great degree of influence, and when their ideas and opinions clash, problems arise. But this is to my mind, not so much an intractable problem.
What has happened is that when the media and the Government clash, and they are trying to work out an equation, the level at which the relationship should be built, where there is free expression and where the Government does not feel under siege, the intervention of the Opposition always complicates matters. The media is immediately identified by the Government in power as supporting the opposition, and vice versa. So the intervention of the Opposition is not always helpful in the tussle between the Government and the media to find their levels of relationship. This has contributed to the constant conflicts between the media and the Government since independence. One of the problems that ruffle feathers in Government is when a journalist writes something, and it is perceived in a very unfair manner. When a journalist writes, and he does not have an agenda of his own, then it is easier to accept what is written. Any Government would accept criticism, provided that it is fair. Facts are sacred and comment is free.
When we as journalists write something, we write with a tremendous responsibility. Matters are set down in black and white. People swear by the newspapers, therefore we should be very careful about what we write.
Even if something is wrongly written and it is corrected afterwards, the damage is done. Not only the victim, but also his family is affected. This sense of responsibility must therefore be kept in mind.
I would proceed now to discuss as to what are matters of public interest.
This is a wide and varied topic. But is it really necessary to write about what that politician ate, or whom this politician met at dinner? This is because the right of privacy of the individual is also important. Most public figures would say that this right is also sacred. I feel that these things ought to be written about only if it brings an undue influence to bear on decision making. Only then should it be relevant.
We have to create a culture of tolerance of media, and respect for another’s views. Where a politician criticizes another politician, it is largely taken up in a spirit of tolerance. If the same criticisms are made by the media, the problems start emerging. So I think that all the actors in this sphere ought to be able to take up scrutiny, provided that it is fair scrutiny.
Some of these problems might decrease if the journalists draw up a code of ethics to create awareness.
In conclusion, l would like to focus on two suggestions made by the Media Law Reform Committee. One is giving the Right of Reply in law, to persons aggrieved by factually incorrect statements.
Their sense of grievance might be minimised for they would have an opportunity for immediate correction. The other is that the state run media is obliged to provide a fair and balanced coverage of news, not only at election time. Apart from the other aspects of the Report that have already been highlighted, these two suggestions are also noteworthy. Thank you.
We must aim to bring this discussion on criminal defamation on to this level, and not become the pawns of one particular political party. Sunanda Deshapriya, Editor of Yukthiya:
Sunanda
Deshapriya
We all know that there exists many obstacles to the growth of a free
media in Sri Lanka. The law of criminal defamation is only one such obstacle.
Politicians of all colours have put forward many obstacles to the free media.
Their aim has been to fetter the media, rather than to promote media rights. Politicians make free media their battle cry when in opposition but, when they come to power, they change.
This has always been the case in this country.
The important problem facing the media now is how to organize the struggle for media freedom without involving one political party or another.
We must aim to bring this discussion on criminal defamation on to this level, and not become the pawns of one particular political party.
This is my concern as we embark on this exchange of views.
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