Focus on Rights
Whither the official secrets act?
Kishali Pinto Jayawardena
There are certain drawbacks to being predictable.
For example, take the announcement a few weeks back that the Government
intends reactivating the Official Secrets Act in order, of all things,
to "prohibit the leakage of Cabinet news" Predictability then
follows in a number of ways. It is predictable that despite falling flat
on its face amidst past colossal blundering with regard to matters of a
similar kind, the Government would go ahead and seriously contemplate such
a move on such an absurd premise.
 Then
again, it is predictable that the news would be greeted by immediate and
vociferous protests by the Free Media Movement, editors and journalists.
Indeed, in the nature of protest, this column itself becomes so very
predictable. How much more boring can one get? Happily, it is amidst all
this vast predictability that a stray renegade thought hits one. Let's
for once, act the devils' advocate and attempt to look at the rationale
behind the contemplated move.
What is wrong after all with the Official Secrets Act? Surely the Government
is justified in wanting certain things kept secret?
As the explanation goes, the Government or more accurately the President,
is perturbed over regular news leaks from the cabinet. A three member committee
comprising senior public servants and lawyers have been given two weeks
to examine the provisions of the Official Secrets Act and other "regulations"
and report back to the Cabinet.
Presumably, amendments to the Act and other laws would then follow.
Presumably too, the leakage of news by enterprising "reporters"
in the Cabinet would cease. All would be hunky dory and the Government
could then govern in peace without being disturbed by the rude comments
of the hoi polloi on affairs of state.
Dissecting this rationale in depth needs considerable courage. One must,
for example, close one's mind to the sheer lunacy of a committee reporting
back to the Cabinet on how to stop Cabinet leaks, for which the first responsibility
should be borne by the Cabinet itself. Instead, one must prod oneself to
provide other suggestions that could be equally supportive.
How about also bringing in an Act to prosecute Cabinet members, those
famed "reporters" who talk, irresponsibly or otherwise, to the
press? Surely, this too is a need? We can then make world history by proving
to our less enlightened member states how irresistibly modernist we are
in terms of political governance. Again, one must be resolute in pushing
aside all those insistent voices that constantly remind one about how this
sudden announcement runs devastatingly contrary to the loudly proclaimed
PA condemnation of the Official Secrets Act. Ditto it is regards similar
guarantees given in the party manifesto. And what also of the fact that
the move is so splendidly antagonistic vis a vis the deliberations of the
ill fated Parliamentary Select Committee on Media Law Reform, dying now
not with a bang but assuredly a whimper? What of all the assurances given
time and time again to foreign media observers by the ubiquitous Media
Minister that the Government was definitely on course with regard to press
freedom, " we are honestly sincere……….it is just taking so much of
time" Add the titbit of news that the right to information, which
is based on a policy of openness as different as different can be from
official secrets, is included in the Draft Constitution still being peddled
by optimists as a possible solution to the country's myriad problems and
one has the whole picture. To pull oneself together, one has to now remind
oneself that it does not do to take all these assurances and contradictions
seriously. In the name of expedient political opportunism, much greater
compromises have, after all, been made.
With all these praiseworthy reminders firmly in mind, let us now go
to the substance of the Act and the "other regulations" being
talked about. At the outset itself, a formidable difficulty confronts one.
The rationale which one has committed oneself to defending becomes immediately
indefensible. The Official Secrets Act is so patently a product of its
age that its applicability in this day and age becomes ludicrous. "An
official secret……….." declares the Act in a manner reminiscent of
Mata Hari and deliciously thrilling spy stories "………..means any secret
official code word, countersign or password, any particulars or information
relating to a prohibited place or anything therein, any information of
any description whatsoever 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 defence of Sri Lanka" The Act also includes
any information of any description whatsoever relating directly to the
defences of Sri Lanka as coming within the definition of an official secret.
Publication of an official secret is punished by the Act for an astounding
period of fourteen years imprisonment of either description and with a
fine not exceeding twenty thousand rupees. Meanwhile, the Press Council
Law also prohibits any publication of an "official secret" within
the meaning of the Official Secrets Act without such publication being
approved by the Secretary, Defence. Any person who contravenes the provisions
could be punished by a fine not exceeding five thousand rupees and/or with
imprisonment of either description for a term not exceeding two years.
It is at this point that further stray thoughts cannot but strike one.
What fun, all this undoubtedly is. First criminal defamation, then censorship
and now this. To what greater heights of liberalism would this journey
along the PA road to media law reform take us? Coming back to the indefensible,
it is a fact that provision prohibiting the publication of cabinet secrets
already exists in the Sri Lankan law.
Section 16 of the Press Council Law states that no person shall publish
in any newspaper "any matter……" which purports to be the proceedings
or part of the proceedings of a meeting of the Cabinet of Ministers or
any part of any document sent to or by the Ministers or Cabinet Secretary
or any decision of the Cabinet in the same manner. The last is permitted
to be published once approval is given by the Secretary. That Section 16
have not been actually used except in the Jayawardene times when prosecutions
brought against particular journalists who challenged the establishment
were later settled, is beside the point. The law exists already. So why
a committee appointed to look into "reactivating" the Official
Secrets Act for this purpose? Is this some far flung flight of imagination
by media beauracrats whose evil genius has prompted the Presidential utterances?
Are there plans to include cabinet secrets within the definition of official
secrets? Is it because the Press Council is considered ineffective and
jurisdiction is given to the Magistrates Court under the Official Secrets
Act, that the offence is to be included under the Act? The possibilities
are mind boggling and it is at this point that one cannot but help give
up the indefensible and lapse thankfully back to a predictable opposition.
For the agony of rationalising on this one involves defiant gymnastics
of a kind that only politicians and like minded individuals of a peculiar
mental and ethical elasticity can engage in.
If it is indeed correct that the Official Secrets Act is being reactivated
for whatever purpose, it is a move that can only backfire with tremendous
effect on the Government. On the one hand, apart from defining official
secrets in a manner that is fundamentally unconstitutional, the Act contains
provisions so dangerous that it puts Emergency Regulations to shame. It
imposes horrendously chilling punishments on violations under it, providing
in addition that in cases of gross misconduct no attorney at law can represent
the accused. On the other hand, the very notion of strengthening existing
legal provisions banning publication of Cabinet secrets, whether by introducing
new provisions in the Official Secrets Act or by amending the Press Council
Law is self defeating. The existing provisions in the Press Council Law
are patently unconstitutional for they do not limit the prohibition of
news on grounds permitted by the Constitution such as national security,
public order and so on, but imposes a blanket prohibition of "any
matter" connected with Cabinet proceedings. The Act is existing law
and cannot be challenged. That prohibition would not apply however to amendments
that seek to tighten these provisions. Essentially, arguments justifying
the imposition of tough laws to prevent the publication of Cabinet secrets
fail on a most fundamental ground.
This was put very well in a case before the British Press Council in
the early seventies. Here, the question was whether the press should publish
information obtained unofficially about the proceedings at private meetings
of parliamentary parties on a complaint made by Mr Herbert Morrison (later
Lord Morrison). He maintained that confidential matters discussed at private
meetings should not be revealed in the newspapers. The newspapers argued
in reply that the business of the press was not to help politicians but
to let the public know what was happening on issues of vital importance
to the country. The Press Council approved this view, adding a most interesting
rider that it would be wrong for the "press to co-operate in a caucus
policy of jealous concealment of the truth for partisan gain" Thus
does the argument rest.
inside the glass house:
The myth of UN Secretary General's autonomy
By: thalif deen at the united nations
NEW YORK— The independence of the Secretary-General
is a longstanding myth perpetuated mostly outside the United Nations. 
As an international civil servant, he is expected to shed his political
loyalties when he takes office, and more importantly, never seek or receive
instructions from any government.
But virtually every single Secretary-General— seven at last count— has
played ball with the world's major powers in violation of Article 100 of
the UN charter.
Boutros Boutros-Ghali of Egypt, the only Secretary-General to be denied
a second term because of a negative US veto, has now bared the insidious
political manoeuvring that goes inside the glass house.
In a new book, scheduled for release next week, he provides an insider's
view of how the United Nations and its chief administrative officer were
manipulated by the organisation's most powerful member: the United States.
In his 345-page book titled "Unvanquished: A US-UN Saga" (Random
House), Boutros-Ghali points out that although he was accused by Washington
of being "too independent" of the US, he eventually did everything
in his power to please the Americans.
But still the US was the only country to say "no" to a second
five-year term for Boutros-Ghali although he had the overwhelming support
of the remaining 184 member states of the world body.
The former UN chief recalls a meeting in which he tells the then Secretary
of State Warren Chrisopther that many Americans had been appointed to UN
jobs "at Washington's request over the objections of other UN member
states."
"I had done so, I said, because I wanted American support to succeed
in my job (as Secretary-General"), Boutros-Ghalis says. But Christopher
refused to respond.
When he was elected Secretary-General in January 1992, Boutros-Ghali
noted that 50 percent of the staff assigned to the UN's administration
and management were Americans, although Washington paid only 25 percent
of the UN's regular budget.
When the Clinton administration took office in Washington in January
1993, Boutros-Ghali was signalled that two of the highest ranking UN staffers
appointed on the recommendation of the outgoing (President George) Bush's
administration— Under-Secretary-General Richard Thornburgh and Under-Secretary-General
Joseph Verner Reed — were to be dismissed despite the fact that they were
theoretically "international civil servants" answerable only
to the world body.
They were both replaced by two other Americans who had the blessings
of the Clinton Administration.
Just before his election in November 1991, Boutros-Ghali remembers someone
telling him that John Bolton, the US Assistant Secretary of State for International
Organisations, was "at odds" with the earlier Secretary-General
Javier Perez de Cuellar because he had "been insufficiently attentive
to American interests."
"I assured Bolton of my own serious regard for US policy."
"Without American support" Boutros-Ghali told Bolton, "the
United Nations would be paralysed."
Boutros-Ghali also relates how Secretary of State Warren Christopher
had tried to convince him to publicly declare that he will not run for
a second term as Secretary-General. But he refused.
"Surely, you cannot dismiss the Secretary-General of the United
Nations by a unilateral diktat of the United States. What about the rights
of the other (14) Security Council members"?, he asked Christopher.
But Christopher "mumbled something inaudible and hung up, deeply displeased".
Boutros-Ghali also says that in late 1996 Albright, on instructions
from the US State Department, was fixated on a single issue that had dominated
her life for months: the "elimination" of Boutros-Ghali.
Under-Secretary-General Joseph Verner Reed, an American, is quoted as
saying that he had heard Albright say: "I will make Boutros think
I am his friend; then I will break his legs."
After meticuously observing her, Boutros-Ghali concludes that Albright
had accomplished her diplomatic mission with skill.
"She had carried out her campaign with determination, letting pass
no opportunity to demolish my authority and tarnish my image, all the while
showing a serene face, wearing a friendly smile, and repeating expressions
of friendship and admiration," he writes.
"I recalled what a Hindu scholar once said to me: there is no difference
between diplomacy and deception."
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