Criminal defamation and the right to know

By Anton Gunasekera

In his most recent publication titled "Justice Without Frontiers:" 'Furthering Human Rights', Sri Lanka's internationally-renowned legal luminary, Judge C.J.Weeramantry,Vice-President of the International Court of Justice in The Hague, Netherlands, has cited instances of the harshest penalties imposed on sixteenth-century writers and authors - perhaps the darkest era in which the very printed word was scrutinized by rulers of the time for the slightest trace of libel or defamation. It was also the period when Plato's Authoritarian Theory on 'Press Freedom' reigned supreme. Plato stipulated in his earliest publication - "The Laws"- a clause, which required writers to submit their works to the magistrates who, in turn, would decide whether such writings contributed to or militated against the 'general good'. 

Weeramantry states: "After the invention of printing, the Church throughout Europe kept strict control over the printed word. And, the death penalty was imposed in 1535 by Francis 1 of France for the unauthorized printing of books, while Queen Elizabeth's notorious 'Star Chamber' could fine an author Pounds Sterling 10,000, sentence the author to life imprisonment, slit his nose and cut off his ears for publishing material obnoxious to the Government."

He adds that until 1695, the Licensing Acts were so stringent in England that "authorized printers of obnoxious works were being quartered, mutilated, exposed in the pillory, flogged or simply fined and imprisoned according to the nature of the offence, and the works themselves were burned by the common hangman".

Those Governments of today which flirt with and prostitute the concept and practice of democratic principles and take cover under the cloak of 'criminal defamation' with the sinister objective of manacling the hands of newspaper editors and instilling in them a 'fear psychosis' so that they would refrain from exposing absolute truths in their columns, need to be reminded that the Legislature, Judiciary and the common man in the Enlightened United States, still ridicules the authors of the Bill of Rights of 1689 for having willfully omitted any mention of Press Liberty. As late as the early eighteenth century, the attitude towards Press Freedom of such figures as Governor Cosby of New York, and the celebrated Zenger Trial, caused memories of repression to smoulder in the American mind and hardened it against the faintest suggestion of interference with free publications.

Colonial attitudes in Australia were no different. Australia's first newspaper - "Sydney Gazette and New South Wales Advertiser" was subject to strict censorship. And Australian newspaper editors - Hall, Bent, Melville and Robertson, were imprisoned for their criticism of repressive administrators. 

It is relevant at this stage to touch briefly on the Libertarian Theory - antithesis of the Authoritarian Theory - which rests upon the theoretical basis that 'the individual represents the highest social and legal value'. Such thought harks back to Aristotelian as opposed to Platonic values and has been directed against censorship by Church and State.

Milton's stout defence of free expression will always be remembered through his comparison of censorship to "that gallant man who thought to pound up the crows by shutting his parkgate", because Milton's view was that Truth would always surface long after the clash of arguments.

In after years, Samuel Johnson formulated for us in his usual resonant and authoritative manner: "The danger of....unbounded liberty and the danger of bounding it have produced a problem in the science of government, which human understanding hitherto seems unable to solve.

If nothing may be published but what civil authorities shall have previously approved, power must always be the standard of Truth; if every dreamer of innovations may propagate his projects, there can be no settlement; if every murmur at Government may produce discontent, there can be no peace; and if every sceptic in Theology may teach his follies, there can be no religion 

Viewed against the backdrop of Sri Lanka's present-day Print Medium which continues to face the onslaughts of a section of those that seek to consolidate 'criminal defamation' in our statutes, when most of the more enlightened developing nations have abolished the very phrase from their legal dictionary, an interesting anecdote from the pages of working journalism, involving a 'convicted' journalist who relates his tale of woe to a fellow journalist of international renown, is indeed relevant to the core content of public agitation against the use of 'criminal defamation' as a counter to curb, suppress the "Right to Know".

When Uganda's dictator, Idi Amin, was ruling his country with an iron fist and he was Legislature, Judiciary and Jury rolled into one, a black African newspaper editor / political correspondent who wrote under the pseudonym of John Akyea, had to face a 'staged ' trial on a charge of having 'criminally defamed' Idi Amin on 'false allegations' of political abuse, coupled with several instances of sexually molesting wives and young daughters of some of his formidable political opponents, most of who 'disappeared' under mysterious circumstances. Journalist Akyea fearlessly exposed Idi Amin's tyrannical rule and his sexual forays in several African and American international publications. When an irate Amin ordered his Secret Police to arrest him, a well- informed Akyea disguised himself and fled to Djakarta in search of a respected colleague and friend in the Fourth Estate. Within hours of reaching Djakarta, Akyea met with veteran Indonesian journalist, Mochtar Lubis, one of the most reputed and controversial newspaper editors of the latter half of this century, to whom Akyea unfolded his story - his miraculous escape from certain death. After many hours of conversation, Lubis had led Akyea into his private study and picked out the Oxford Dictionary, which Lubis had described to Akyea as " the universally-accepted, authoritative arbiter on the accurate interpretation of legal jargon to which Legislators, members of the Bench and Bar and even erudite scholars have recourse to, as the final resort, when the meaning of a word or phrase is willfully misinterpreted by scheming minds."

What is Criminal Defamation? Mochtar Lubis had pondered, while his convicted colleague, Akyea was diligently scanning letter by letter, word by word of the definition in the dictionary.

Mochtar Lubis had concluded that, according to the meaning as listed in the dictionary, the adjective 'Criminal' and the noun 'Defamation', when put together, read as "An act in which the Good Name of a person ( or institution) is attacked by another and is therefore tantamount to a Crime which is punishable according to the Law". Mochtar had then put Akyea at ease, with a stunning analysis. In Mochtar's words: "Governments and peoples everywhere who continue to cherish and actively pursue the ideals of true Democracy, are already convinced that Idi Amin is a Bad Name in contemporary world society. Akyea has hence NOT attacked a Good Name. Nor is there a Law by the name of 'Criminal Defamation' in Statutes enacted by nations which practise real democracy. Moreover, democratically-elected leaders had already stamped Idi Amin as a ruthless criminal. Journalist Akyea is therefore Not Guilty in the eyes of International Justice. And, International Justice, instead, should judge Dictator Idi Amin for having 'criminally defamed' a fellow journalist who had faithfully adhered to the tenets of his profession by calling a spade a spade". As Lubis opined, an independent, impartial Judiciary in any nation belonging to the 'Free world' would have acquitted Akyea on the premise that Idi Amin's 'Good Name' had already been damaged beyond repair before the public eye.

How Idi Amin fled his country shortly afterwards to escape the wrath of his own countrymen, no less of how the civilised world learned about his brutal and inhuman rule - how many skeletons of his diehard critics were found in his cupboards - is now a painful part of the darker side of Africa's modern political history. In this 25th anniversary year of the Sri Lanka Press Council, the written observations of a former Council Chairman, retired Judge A. L. M. Fernando on 'Freedom of the Press' have timely relevance particularly at this critical juncture when there is a virtual witch hunt for 'erring journalists'.

In his 1992 address to the third world conference of Press Councils, held in New Delhi, A. L. M. Fernando stated thus: " The Sri Lanka Press Council believes that honest, free and independent journalism is the best contribution towards peace". 

"Without the freedom of the Press, there is no Democracy; Freedom of thought and expression spoken or written- are inseparable and intertwined. Together, they constitute the guarantee and the liberties on which the bedrock of freedom is based". 

And, in more vigorous phrase, the former Press Council Chairman asserted: " Political regimes that do not respect or cause to be respected full freedom of the Press, are a mockery of Democracy. A free Press is basic in forming and expressing public opinions". 

Which brings us to a historical overview

of the conceptual foundations of what are known as "Freedom of the Press" and "Freedom of Expression" and the several underpinned political and legal attitudes towards them. Much as these are freely talked about as 'human rights', their connotations are many and varied. Like the one in which the conductor of the Colombo-Kandy Intercity Express told a 'sardine-packed' load of commuters: " When the driver negotiates bends along the route, those commuters who are standing are allowed the Freedom to Press those commuters in front of, and behind you. Anyone who gets hurt will have no Freedom of Expression, because whether you are seated or standing, you have paid the same fare for this agony of going express."

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