Three R’s for journalists’ conduct

By Kishali Pinto Jayawardena

In more ways than one, the ebullient Media Minister Mangala Samaraweera has indeed surpassed himself this time in speaking his mind.

That is, of course, if we are to believe the reports filed last week by the Cabinet press correspondents of the daily papers, whose accounts go something like this”

“Q: Mr. Minister, don’t you see any similarities in this case with the Clinton and Monica issue?”

“A: “ Not at all. This is Sri Lanka and that is the US. The US issues do not have any impact on us. And even then, in my personal opinion, sex between two consenting adults is their business and not public business. We must get away from this trend towards fundamentalism.”

Quite apart from the splendidly puzzling distinction drawn by Mr. Samaraweera between Americans and Sri Lankans in matters of moral rectitude, one may venture to think that his use of the word ‘fundamentalism’ in this particular context is also somewhat bewildering. The general import of his words however is understandable. The minister is expressing a much echoed battle cry, that all persons, even public figures, have a certain inviolable area of privacy into which media trespass cannot be condoned.

And therein lies the rub. The perennial question is, has been and will continue to be as to how this private space could be defined.

In defamation law, the boundaries appear to be clear. Private action of public figures can be exposed insofar as it reflects on public conduct. All other comment is taboo. This reasoning develops from the self professed role that the media have claimed to themselves, as pointed out by the well known 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.”

As with many highly profound statements, this too is riddled with holes. What are “relevant aspects”? What exactly is private conduct? Indeed, what is privacy? A long winded explanation is given by the Justice Committee on Privacy and the Law in the United Kingdom. It says 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.” This explanation 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, on their inherent prejudices and definitions of what constitutes privacy, both of them perhaps 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?” can only remain elusive.

That said, certain other questions are however easier to answer. The media cannot profess themselves to be a watchdog of public morals or attempt to selectively define morality. This is what makes the trend of last week’s Cabinet press briefing somewhat disturbing. For the media to question the Attorney General on whether or not he committed adultery is to overshoot their mandate.

That question is a question for the courts. If justice is not done by the courts, then the proper course would be to highlight the injustice.

Abuse of power is however a different question altogether. Whether the Attorney General has abused his power in suppressing a case where he was made co-respondent in a divorce case becomes a matter that the media can, in all good conscience, take up with a vengeance.

The effect of such a quest for the truth can however only be damaged by the publishing of highly salacious gossip on the private lives of individuals that are irrelevant to the main issue of abuse of power. It is here that the balancing line will have to be drawn and it is here that the media will have to be careful so as not to attract boomeranging allegations of personal vendettas.

In an address on Media Law at the SAARCLaw Conference held in Colombo last week, senior fundamental rights lawyer R. K. W. Goonesekere spoke on media rights.

What was of particular interest, however, was a reference that he made to a tripartite trust that was recently articulated by the Nigerian Nobel Literature Laureate, Wole Soyinka, at the 51st World Newspaper Conference in Kobe, Japan.

Mr. Soyinka proposed an interesting trilogy as forming three guiding principles for the media; Rights, Reason and Responsibility. The trilogy is explained in the following manner. The first Declaration of the Rights of Man, born out of the French Revolution, later to have a profound effect of subsequent international human rights documents, was based on the principle that man was 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.

In his analysis, Mr. Soyinka was speaking specifically about the manner in which the American media have expended time money and effort on what he terms as the ‘Monica Lewinsky Grand Prix’.

His conclusion was that in elevating a President’s sexual peccadilloes to world status, the media are, in fact, engaging in an insidious debilitation of the world’s capacity to respond to far more crucial and moral issues.

As just one such issue, he cited the fact that the year celebrates the 50th Anniversary of the Universal Declaration of Human Rights. If one hundredth of this media time is devoted to focusing on the activities of commemoration by innumerable human rights organisations throughout the world or to the many blatant violators of the provisions of that Declaration who are morally defaulting members of the United Nations, to what extent would there be a better understanding of the concerns that agitate millions, he asked.

Mr. Soyinka’s questions are directed at the American press, but they remain questions that are equally relevant in other different domestic contexts.

This trilogy of guiding principles outlined by Mr. Soyinka could indeed be said to serve as an important benchmark for the Sri Lankan media.

The trilogy underscores a very basic premise. Firstly, 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. As more controversies abound on privacy and the right of the media to expose public cum private action as is inevitable, the observance of Mr. Soyinka’s trilogy becomes essential. It is on this plank, and this only that the Sri Lankan media can make their demand for greater and better rights, including the right to ask even the Attorney General to account for his actions.

The Attorney General vs. media

Extracts from questions posed to Attorney General Sarath Silva and answers he gave at the weekly cabinet news briefing on Thursday on adultery allegations against the country’s highest legal officer.

AG: I must first explain the basis on which I have taken this rare decision to be present at the cabinet news briefing. I certainly have no place here. I am present here because I have received a press release, said to have been issued by the Deputy Chief Editor of Ravaya announcing that the Honourable Minster of Justice and Constitutional Affairs has written to me to be present as Attorney General to answer questions here. This press release is incorrect. I have clarified this matter with the Minister and I have to clarify the background in which I agreed to make this statement to the media.

I’m not concerned about news stories of a personal nature, but a news item made, especially in Ravaya of Oct. 18 stating that there were charges of adultery against me and that I had abused or used my authority to suppress that case.

I informed the Honourable Minister and Her Excellency the President that I would like to clarify this because this related to an allegation of abuse of power and authority by me. Both said it was unnecessary for me to issue a statement as far as the government was concerned but they left the matter entirely in my hands. So I thought as Attorney General and as a citizen of this country, to make a statement, especially with regard to the allegation.

The brief statement that I wish to make is related to certain cases. There were four cases; DC Colombo Case No. 16799D, DC Colombo Case No. 17082D, and two applications in the Court of Appeal, in which my name was mentioned. These cases were filed somewhere around 1994 and finally concluded somewhere in May/June 1996.

They were not concluded immediately on orders of court, but on the consent of parties. These are not cases that were concluded merely on judgements or decisions of court, but on judgements and decisions given with the consent of parties. And the person who made the allegations against me, who went to the Court of Appeal on that matter, withdrew his applications on the 3rd of June 1996. And thereafter, nothing arose in the judicial arena on this matter until this publication was made. So I have to make it clear, there is no question of any abuse of authority on my part. The person who made the allegation voluntarily appeared before the Court of Appeal at a time when I was not a judge, and withdrew those allegations. So, that answers the allegations as far as the abuse of power on my part.

Minister Mangala Samaraweera: Now the House is open to ask you questions.

Q: What are the numbers of the two cases?

A: 16799D and 17082D.

Q: As an ex-judge of the Appeal Court, and as an ex-judge of the magistrate’s court, how do you define adultery’.

Mr. Samaraweera: I think it is very unfair to define adultery. Therefore you may question in relation to the statement made.

Q: Can you explain to me as the AG of our country and as a judge of the Supreme Court, can such a person lead a life of an adulterer.

AG: You have challenged and made an allegation that I have used my authority

Mr. Samaraweera: Mr. Ivan, could you please ask the question in relation to the article that you have written and in relation to the statement the AG has made in response.

Mr. Ivan: The main point about this whole news item is the charge of adultery. The foundation of this talk is the fact that you are living in adultery. It is only the next part of the story that you have abused your power to suppress this case. That is why I am first asking whether an AG or someone who is holding a senior position in a higher court can lead such a life.

AG: That is not the question here.

Adultery is a matter of civil law. It is not an offence under criminal law. It is a cause of action or a ground of action for a divorce. It is a matter between a husband and wife and the person who is alleged to have committed adultery, and not the rest of the world. Now in this instance, the husband has made allegations against his wife of adultery, and named me as the co-respondent. The husband has withdrawn that case. That is the end of the matter.

Mr. Ivan: It is in relation to this news that the AG has made a statement. I asked the direct question, adultery is a grounds for debate for the general public. But can someone in a high post in the judiciary lead a life of adulterer. That is what I am asking.

AG: A charge of adultery, I respectfully submit to Victor Ivan, by a husband or wife against his or her spouse. It is a part of personal law. A charge of adultery can be brought even against a Supreme Court judge or against anyone. After that the case must be taken up. The reason the case was not taken up in this instance is because the individual withdrew the case.

Q: No, the case was made to be withdrawn. (Interruption). After he withdrew it, he complained to the Judicial Services Commission about the injustice that happened against him.

AG: It is not the Judicial Services Commission that is hearing this case. It is the Courts.

Q: The question is not about your taking a legal position in a normal case. If A and B commit adultery, there is a civil procedure. We are not looking at you as a normal person. You are the Head of the Judicial Centre. Your moral conduct is a part of your profession. (Interruption). Do you accept that it is the accepted law in any democratic country that the Supreme Court judges and senior judicial officers should conduct themselves with morality, and that they are looked at on a different scale. Do you accept that? That judges have been forced to resign for immoral acts? Do you accept that?

AG: Of course.

Q: Right, then can I ask you a straight question. So, we are not looking at adultery in a normal person. We are looking at your post. Whether you can conduct adultery as a Supreme Court judge.

AG: If a man withdraws allegations, what more do you want?

Varuna: We are not interested in the man. Are you living in morality AG?

Mangala: I think, you are going off the mark, and I think you got a proposal to have a discussion on adultery (Interruption)

Q: On the grounds that if the AG is living in adultery that should disqualify him for the job.

Mangala: (Interruption). I think the Attorney General has made a very clear statement about it, and as I say, please ask questions. If you don’t think it is correct you can ask to talk to him.

Q: Are you making a clear statement that you are not living in adultery

(Interruption)

Mangala: That is not your business.

Q: Why?

(Interruption)

Q: Mister Minister, how can you say that Supreme Court Judges’ and Attorney Generals’ conduct is not my business. How can it not be my business.

Q: Attorney General, it is included in your full statement that the plaintiff withdrew his case completely, you did not use your authority to suppress this case. This plaintiff, Mr. Jayasekera has written, made a complaint to the Judicial Services Commission, as to how you used your authority in this case, you have acted in order to suppress it. This is a legal complaint, after all this was over.

A: This complaint was never made to me. (Interruption). If he has gone to courts and got the case withdrawn, and if he then makes a different complaint to a different place, how can I provide answers to the questions. According to our law, if there is such a charge to be made to the courts, there is an opportunity to present a civil case, not a criminal case but a civil case. I have not done anything to suppress that opportunity. The person who made use of the opportunity to present his complaint, fully withdrew his allegation, not in the District Court but in the Appeal Court. At that time I was not a judicial service officer.

Q: Mr. AG, could you tell us what led to this allegation. What led to the charges being filed against you?

AG: Mr. So and So, this is a subject matter for civil action. I can’t go beyond what is there in the court record, and you have no right to go beyond what is there in the court record. No one in this country has a right to go beyond what is in this court record. Otherwise this is a .................. court litigation

Q: Mister Minister, a question for you. Do you see a parallel between this case and the Clinton-Lewinsky affair.

Mangala: Not at all.

Q: Attorney General, you said that you were not aware that a complaint had been made after the civil action was retracted by the complainant. That he had made a complaint to the Judicial Services Commission and that you were not aware. Okay, if that is so, we are making you aware of it now, today. What do you have to say about it now?

AG: This complaint is dated 16th of June 1995. The application before the Court of Appeal was withdrawn on the 3rd of June 1996 at a time when I had ceased to be the judicial officer, I repeat.

Q: As far as I know of this incident, you can’t conceal it just by a show of words. This person still says today that after the complaint made to this commission the commission sent a file to the Attorney General’s department, here is that file. Tell us what you did to that file.

Mangala:....

Q: No, no. Tell us what you did to that letter. (Interruption).

Mangala: You have to admit that this is 1995, long before.

(Interruption)

Q: You can move a case aside by showing your power, you can take over his house…

AG: Hah!

Ivan: Why not?

AG: Are you charging that I abused my power?

Ivan: Yes. Definitely. Definitely.

AG: I have not used my power to do anything to this case. If anyone charges that I abused my power in this country, I will resign from this post.

Q: Yes, I am charging that. I will also take up the challenge and am prepared to prove the charge.

AG: Okay, then prove it.

Q: I have tape records to prove that you summoned the lawyer who was appearing for this case to your official chambers and threatened him. If I get the chance I can play the tape.

Q: Mr. Jayasekera again made a clear complaint against you to the Judicial Services Commission, I published that in the newspaper. ‘The person who did me an injustice is now in the post of Attorney General

How can I receive any fairness by someone who treated me unfairly, he has asked in his complaint.he has still not received a reply to this by the Judicial Services Commission.

AG: That is what I said. The file concerning this was closed by the Attorney General’s department and sent to the Judicial Services Commission on the 22nd of December 1995. At that time I was not in the post of Attorney General.

Q: Okay. The other party to this case, Mr. Jayasekera’s wife, is she living with you?

(Interruption)

Mangala: No, that is a very unfair question.

Q: Why?

Mangala: This is not the forum to ask that sort of question.

Q: We are asking the question because we are trying to prove that somebody has lied to court.

Mangala: You can ask that somewhere else, because he has answered your questions very clearly... (Interruption)

Q: Then the Attorney General needn’t have come here. Didn’t he come here to answer the journalists’ questions?

Managala: So his coming here is the wrong thing?

Q: What is the point of having a press conference?

Mangala: He has made a statement. You have made certain allegations, he has answered it very clearly, and I think now if you are not satisfied with his answers, well say so in another forum and maybe in another time we could continue this.

(Interruption)

Q: You, who is in a high post in the judiciary of this country, was made a co-respondent in this case, and the other co-respondent was his wife. Judge Abeyratne who heard this case, without informing the plaintiff or his lawyers, deleted your name as the co-respondent. The Judicial Services Commission’s investigation showed that Judge Abeyratne did this under your influence. Don’t you know that because of this the judge was transferred out of Colombo?

AG: Who conducted the investigation?

Q: The Judicial Services Commission.

AG: Then ask this from the Judicial Services Commission.

Q: We asked them. The ex-Supreme Court Judge Tissa Bandaranaike said that he had questioned judge Abeyratne. He used to be a member of the Judicial Services Commission.

AG: He is out of the country....

Q: AG, are you saying your excuse for that is that he’s not in the country.

AG: No, no. There is a Judicial Services Commission now in existence, under the chairmanship of the Chief Justice. Why don’t you go and ask the Judicial Services Commission...

Q: We did. We asked the Judicial Services Commission. They said the person who investigated this was Mr. Bandaranaike, the current High Commissioner in Indonesia. We asked him what happened. He said investigations were done, the particular judge was transferred, the file was sent to the AG’s department for further action. What action has been taken by the AG’s department.

AG: That is why I clearly said, advice was sought by the department. Advice was finally given by the Attorney General, then Attorney General, not me, on the 22nd of December 1995

Q: On which case. The judge or Jayasekera?

AG: My dear, the JSC has control over ordinary judges. The JSC has no say in the decisions of cases in this country. So a complaint has been made against a judge.

Ivan: Against two judges.

AG: The JSC has sought advice from the Attorney General. Attorney General, the then Attorney General, not me, has given advice and closed the file...

Q: Which file?

AG: The file in the Attorney General’s Department.

Q: There were two complaints. There were two complaints against two judges. Now, which one has been closed? There was a complaint against you, there was a complaint against Abeyratne. Now, what happened to the Abeyratne complaint.

AG: No, no. Against me there was no complaint by anybody. And the JSC has no jurisdiction to inquire into a judge of the Court of Appeal. The JSC has no control over a judge of the Court of Appeal or the Supreme Court. So no one addresses complaints about the judge of a Supreme Court...

Ivan: Then who has that control?

AG: That control belongs to Parliament. At that time it should have been presented to Parliament.

Q: Okay, now you say you have done nothing wrong. That you are willing to face any investigation.

AG: Why should I face an investigation? Are you the judiciary in this country. There was a court case, and the court case was decided. Court cases are meant to be decided within courts, it can’t be decided in places like this. It can’t be decided in newspapers.

Q: We are saying that court cases were decided under influence by you. We are making that charge. We have made that charge.

Mangala: And he has refuted that charge. So make your charge again...

Varuna: Our point is this. You have said that if we can prove our charges, you will resign.

AG: What I said was, in general, not only this, in general, if anyone says that I have abused my authority, and can make that allegation in front of me and establish that, I will certainly resign.

(Interruption)

Q: He is saying that he will give us the time, to come and show him what our proof is. So we will do that.

Ivan: My final question. Now if we treat this person who moved aside this case as an extremely reasonable person, if he now charges ‘authority was used to suppress my case, these are the instances’, what will you say about that?

AG: This is a civil case..... (Interruption)

Mangala: These journalists can’t wait to ask the question. Not to hear the answer. They are only interested in making the charges.

AG: A case if presented. If it is taken up to the higher court and then withdrawn, under our law, it is final. That decision is final. If anyone does anything against that, it is contempt of the court. Please remember that. I, just like the public, respect a decision of the courts. Now here, the courts has given a final decision on the 3rd of June 1996 that on the request of the plaintiff the case has been quashed. Now I must say finally, that this is a civil matter. This is not a criminal action, this is a civil matter, and is a matter between parties. It is not a matter where the public are involved, it is a matter between parties. And this person, who has made this allegation has finally unconditionally withdrawn his case from the court of appeal on the 3rd of June 1996, at a time when I was not a judicial officer.

Q: So what does it prove?

AG: What does it prove? That there are no allegations.

(Interruption)

Q: AG, you say that just because he withdrew the case from Appeal Court, that proves there is no allegation. Of course not, he is saying that he was forced to withdraw the case because of pressure on him.....

Mangala: You are going back to square one.

AG: If he says so, this happened on the 3rd of June 1996, surely the man could have made a complaint at the Supreme Court, there is a Supreme Court in this country. Why is this newspaper picking it up?

(Interruption)

Ivan: The AG used his power in such a way that, the man couldn’t find a lawyer in Sri Lanka to appear for this case. The lawyer he found with the greatest difficulty, you got down to your chambers and influenced him.

Q: Okay, I will show you that you that not only in this case, you have used your position as AG for political missions, and this argument will prove the case, where you have gone and met Buddhist monks, and campaigned for a package, which you have no business to do...

AG: I have never done that in my life.

(Interruption

Mangala: He will campaign for the future of this country, not for a package For the future of Sri Lanka he is very concerned. (Interruption)

Q: Now, according to this statement, this person called Jayasekera withdrew the case voluntarily. In next time’s paper, if I get the man called Jayasekera to level the same charges about everything that happened, why he withdrew the case, what are the problems you brought, as Attorney General will you answer that?

AG: The matter concerning these charges must be taken up in courts.

Q: You said it was in Parliament.

AG: The matter concerning these charges have now been finished in courts for the last two and a half years. It could have gone to Parliament when I was in the post of a judicial officer. Now I am not a judicial officer. So now, if you want to take disciplinary action against me, present it to the President.

(Interruption)

Mangala: The final question has been asked now. The remaining questions may be asked later.

“The journalsits must be grateful that the AG came and answered these questions.

Q: Why should we be grateful. He is the Attorney General of this country, and he is accountable to the public.

( no answer )

Q: Minister Samaraweera, we put it to you that this whole press conference was an eyewash, and that the AG did not answer our questions in full. It was a propagandist exercise.

Mangala: If you feel so, you can say so, and persue the matter. But the AG was here for an hour.

Q: We want the AG to answer our questions for the public record, not in some private conclave. In any event, one hour is a very short span of time when you are dealing with a question of this magnitude.

Pharmacists sick: patients get wrong medicine

By Faraza Farook

The two-day sick note protest by government pharmacists has resulted in innocent people being victimised with ordinary labourers and attendants issuing drugs which can be unsafe, patients said.An offical of the striking pharmacist union claimed that several patients had developed adverse reactions, after they were given wrong medicine by untrained persons.

The wildcat action by government pharmacists had repercussions all over the country. In Anuradhapura, Deputy Health Director Dr. Keerthi Samarawickrema said attendants and labourers had been trained to issue medicine in an emergency, so there were no problems in the peripheral hospitals. In the main hospital the pharmacists are continuing to work.

Despite the ill effects on the people, government pharmalists are threatening more action if their demands are not met. They have appealed to President Chandrika Kumaratunga to intervene.

In some hospitals, operations were put off due to the sick note protest and patients complained that hospital employees who were expected to serve them were only prolonging their agony.

Large crowds were seen at the State Pharmaceutical outlet, Osu Sala, to get their medicines during the protest.

The Sunday Times spoke to people who were waiting for hours in an Osu Sala queue. They said they were really sick and tired of sick note protests and other gimmicks which only heap more burdens on a suffering people.

State Pharmaceutical Corporation Managing Director K.U. Kamalgoda said there were Osu Sala outlets in Horana, Panadura, Mt. Lavinia and Bambalapitiya, but most of the people throng to the Town Hall outlet since it is close to the National Hospital.

He said that despite the large crowd, they had issued drugs to all the callers.

Dr. H.S.P. Tennekoon, Additional Deputy Director General of Health Services, said most hospitals managed with dispensers.

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