MPs declare intention to modernise press laws

UNP and Opposition Leader Ranil Wickremesinghe on Friday moved a multi-party motion in Parliament calling for the modernising of existing media laws.
Excerpts:

Hon. Speaker, as I mentioned to you earlier, I thought of explaining to the House the purpose of this motion. This motion is a bipartisan effort where members from both sides of the House define the media freedom in Sri Lanka in the light of the International Covenant on Civil and Political Rights and the Declaration of Human Rights, Article 19 in the Declaration as well as Article 19 in the Covenant lays down the freedom of expression and the extent.

What has happened in Sri Lanka, like in many other countries, is that some of the laws pertaining to the media and the restrictions have been passed earlier, and have now come into conflict with this covenant. I hope this will also lay to rest a 40 year controversy about media freedom in Sri Lanka, because if we use the international obligations as the bench-mark then these issues have to be resolved and it need not be a conflict between the press and the parliament, the government and the media or among political parties as to what should be the media freedom in this country.

The freedom of the press in Sri Lanka is one of the first rights we had under the British even before we had the right to elect a representative to the Legislative Council or even before the first Legislative Council with appointed members was established in 1833.

The Ceylon Observer carries in its mast head the fact that it was published first in 1834. So it precedes even the Legislative Council. There were also other newspapers which were started prior to that and in the 19th century the newspapers with limited circulation whether it be in English, Sinhala or Tamil helped the national revival, helped us to re-discover ourselves, our cultures, our religion and also to back the call for Sri Lankans to participate in the governing of the country. In the 20th century with the beginning of a mass media, the Sri Lankan press played a vital role in the independence movement itself. In the absence of well organized political parties with grassroot organizations able to mobilize members, the mass media, the mass circulation media filled that gap, and it was through the mass media that our ideas and views on constitutional reforms and the need for self government went to the people resulting in independence in 1948. But the freedom that was guaranteed was by convention, which was a British tradition and this went on in the first decade of independence but we found from the second decade onwards other ideas coming in which really were more in favour of the control of the press. These different ideas which were expressed from time to time found its official expression in the Press Commission Report of 1964 which advocated both the acquisition of newspaper publishing houses as well as the establishment of a Press Council. This Press Council was established in the 1970s and I also happened to be one of those who had to go to the Constitutional Court to petition against it together with the acquisition of the press.

In the 1980s we saw the start of a private print media again in Sri Lanka, the beginning of TV and the start of a private electronic media. We saw the growth of a private media, the beginning of media organizations and these laws lay dormant in the statute books. So while the private media expanded, the State media was also there playing a role and the laws which encroached on media freedom were in the statute books though the law itself was dormant. Whilst this was happening another development was taking place internationally. That is, throughout the world there began a reforming of laws relating to media both to adhere to the international guarantees on the freedom of expression as well as the recognition of the importance of speech. So countries started looking at the conflict within their own societies and found media organizations, I remember institutes like the International Press Institute started it and the others followed - which started expanding the scope of freedom of expression and made it a working part of a democratic society. It was not really a question of newspapers or the electronic media having the right to express views, but that it was a vital and a vibrant part of a democratic society.

With this new thinking freedom of expression became a right of the individual to express his views as well as to receive diverse views, and you found the establishment of the market place of ideas coming in and the right of an individual to follow different view points that were expressed, and that this had to be confirmed both by constitutional guarantees as well as by administrative action.

A further development was that the media itself realized the obligations that the media had towards society. It was not a one way street.

Recently, in September they had a Colloquium in Colombo on the freedom of expression and defamation and the declaration regarding the principles. The preamble itself shows that. For instance today it has always accepted the importance of both the freedom of expression and the right to one's reputation. Now the question is how do you balance it? They have also accepted at this Colloquium that the importance of open access to information, particularly of a right of access to records held by public authorities in promoting accurate reporting, and in limiting the publication of false and potentially defamatory statements.

It also accepts the fundamental necessity of an independent and impartial judiciary to safeguard the rule of law and to protect human rights including freedom of expression. It recognizes the role of self regulatory mechanisms in providing effective remedies which are easily accessible to ordinary citizens. It also accepts the need for accountability and transparency in public institutions and corporations and the right of the media to carry on their publishing activities. All these rights have to be balanced and for which a new framework had emerged in this world. All we seek to do is to bring Sri Lanka in line with this. It is one of the bi-partisan measures which we have thought of.

I have specially made reference to this because the political parties themselves - both the UNP and the PA in their manifestos of 1994 accepted for the first time the need for media reform.

Both major parties and also all the other parties signed for this and accepted this. They have all accepted the need for media freedom and this resolution then seeks to get bipartisan consensus. It is not a law. It is just the intention. Already the law relating to parliamentary privileges has been brought in by the Government. I must commend them for that. But now we have to go ahead on the other issues. When going through the issues that have been mentioned in this resolution, Sir, I would like to give the background of each of this. I do not want to go into any individual instance, that certainly is not my intention.

Firstly, the section on Criminal Defamation in Sri Lanka, Section 479 is based on the English law of criminal libel. There was a similar provision brought in in European countries in the last century. None of these continental countries had the freedom of press enshrined in their Constitutions. England has an unwritten Constitution and therefore this provision was brought in to safeguard the rulers, the kings, the governments and other public authorities, from what they thought were unnecessar attacks by the press. The press, I must say, thought otherwise in this instance. Nevertheless this was there in European countries and these sections have been copied into the laws in other parts of the world. Subsequent to this, specially after World War II, with the development of the international agreement, the declaration of human rights and the covenant as I told you, and the right of expression will be coming to forefront, then with the European community passing its own Human Rights Act which emphasized on the need for freedom of expression, the European countries have started to review this process because it was felt that sanctions in case of criminal libel sanctions themselves are in breach of the guarantee of freedom of expression.

The key problem with criminal libel is that a breach can lead to custodial sentence. Suspended sentences, common in some countries, also exert a significant chilling effect as subsequent breach within the prescribed period means that the sentence will be imposed.

Now this has been a question that we had in Section 479. I think it is the 2nd exception to 479 which requires public benefit. In England Lord Diplock had to deal with it and he has stated in Gleaves V. Deakin,

"This is to turn article 10 of the (European convention of Human Rights) on its head.... article 10 requires that freedom of expression shall be untrammeled (unless interference) is necessary for the protection of the public interest".

This has also now resulted both in Europe and in many international bodies having started to condemn the threat of custodial sanctions and asking for it to be removed.

In UK itself the new Human Rights Act negates the old offence of criminal libel. What we suggest is to fall in line with the practice that is taking place in other parts of the world. But Sir, we accept the need for an effective remedy still for the defamed. There still has to be an effective remedy. But all we say is that the effective remedy must be in line with the modern development and if I am asked I would say it should include intention as a vital part of the offence.

Secondly, truth must be sufficient defence and thirdly there should not be penal sanction, there should not be jail. You can always award damages to the party concerned.

Mr. Speaker, the next one is to ask that Section 14, 15 and 16 of the Press Council Law be repealed. Those sections though dormant, if we are to go ahead should now go out of the Legislative Enactment. Section 14 which I myself have to argue against is one which makes a large number of people subject to libel in case of offences committed through the means of a newspaper. Not only the journalist, the editor, the proprietor, the publisher, the printer, the photographer, everyone comes under this. Now this is a major problem, this is a big threat. It had not been used, I must say. But if we are committed to media freedom we might as well remove this. Just for the fault of one you are enforcing sanctions on everyone, involved in publishing and printing a newspaper. That certainly is against the democratic tradition. Then Mr. Speaker, we have Section 15 which makes it an offense to publish in any newspaper:"Any profane matter, any statement or matter concerning a person which will amount to defamation of such person within the meaning of Section 479." Here it is 479. In addition you are also punishing them under Section 15 which should not be done. Then any advertisement which is calculated to hinder public morality. If advertisement is bad that has to be dealt with public opinion, not by criminal sanction. Any indecent or obscene statement or matter that should be dealt with by the laws governing obscenity. These also should go out of it. Finally the question of 16 - "where publication of certain matters relating to proceedings or any part of the meeting of the Cabinet of Ministers" If you publish anything you can go to jail. This has also not been imposed because if you go to prosecute a newspaper and they have to divulge the source, then most probably a Cabinet Minister will end up (being involved). This had happened in every Cabinet. When Sir John Kotalawela was asked to take action against a newspaper for publishing Cabinet secrets, he said, Cabinet secrets go to newspapers because it is leaked out by someone and the only remedy that I have is to hold my Cabinet meetings at the Galle Face Green with loudspeakers so that the whole country can listen to it.

Certainly if this provision had been enforced many members of my family would have been in jail quite often. I must confess Sir, even in the old days you found people like Mr. Armand de'Souza used to keep company with Governors like Hugh Clifford to find out from the Governor what was happening. It was done by the Lake House press when my grandfather was in charge. Cabinet Ministers of all Governments used to give information. The first Cabinet paper I saw Mr. Speaker, was not as a Minister, it was in the hands of my father when I was a student and he showed it to me. It is quite interesting to know how he got it. But every journalist, in whatever Cabinet, had friends and information is obtained.

Even today you just cannot keep a secret in Cabinet. The best example is what had happened to the Government of Harold Wilson which had Mr. Richard Crossman as one of its Ministers. Everyday after the Cabinet meetings he used to go home and dictate the proceedings and the events into a tape recorder that he had. Mr. Crossman was a good writer, a journalist and edited the 'New Statesman' and 'The Nation'. Everyday he dictated this with the intention of writing his memoirs once he retired. Unfortunately for everyone he died while in office and the executor of his estate sold these tapes to a publishing house and the publishing house brought out Mr. Richard Crossman's diaries.

When he used to come back from Cabinet meetings annoyed with Harold Wilson, all the comments about Harold Wilson, about Callaghan, who later became the Prime Minister were recorded. They went to courts to try and prevent him from publishing. The court said nothing can be done and the Crossman diary had all these. This is why it is not possible really to safeguard Cabinet secrets by prosecuting the newspaper. If you feel someone is leaking the news, then the Head of the Government will have to get rid of him or her from the Cabinet. That is why we wanted this out.

Then we are talking of the laws regarding the contempt of court including sub judices, now, being common law. It devolves from time to time. But this has a problem not merely for the Press but even for some of us when we speak and it is better that the law of contempt of court and sub judices is codified. You can change it from time to time, but the need is to codify such law.

Finally we come to the next Section. For the first time we are proposing a Freedom of Information Act or an Access to Information Act. Now, this is one of the major issues because today it is accepted, if democracy is to flourish. Citizens must be adequately informed about the operations and policies of their government. Openness and Accessibility of people to information about the government's functioning is today a vital component of democracy to become that much more necessary in order to fight corruption. Now this is also contained in both Article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Access to Information is a short way of stating the totality of seeking and receiving information. That is what we are bringing forward in this motion - the right of an individual to be informed about the activities of their state, past, and present.

Then the last one is the need for a Media Council to replace the Press Council. Sir, you need a prompt remedy where you are defamed or false statement is published. The Press Council has not been able to deliver the goods.

The Media Council in England has done so and the Press in Sri Lanka has already formulated a draft of a Voluntary Press Complaints Commission. But we feel here, while this should be non-governmental it must be established by Statutes and there must be the right to call for evidence and the right for the Council to ask newspapers and media to carry a correction even if they are not willing to do so.

That is essential in the Sri Lankan context. So this is all that we seek to bring about in this Motion. It is just a Motion which indicates the views of Parliament and it is left then for the Government or for the Select Committee that is sitting, to go into it. I am told the Select Committee report will also be available by November.

I must thank you Hon. Speaker for that. As I discussed with you, I want to suggest moving the House that we take this up thereafter, after being seconded, for debate on the 13th of December. All we are saying in this Resolution is what the US Supreme Court said in the case Garrison vs. Louisiana, that speech concerning public affairs is more than self-expression

It is the essence of self-government and we are looking at a new legal framework to entrench that right of self-government.

Vasudeva Nanayakkara (LSSP Ratnapura) seconded the Motion.

Speaker gives Mangala six weeks

The following is the text of the letter Speaker K. B. Ratnayake sent to Media Minister Mangala Samaraweera on September 30, 1999

The Committee on the Legislative & Regulatory Framework Relating to the Media

The above Committee was established on August 20, 1997 and the report is yet to be finalised by the Committee.

As you are aware in the meantime certain members of the Opposition had given notice of a motion which has been now fixed for debate on October 8, 1999.

I observe that the subject matter to be taken up in the motion is the same as those referred to the Select Committee for its consideration.

Since there had been a considerable delay in finalising the report of the Select Committee and also in the light of the fact that the notice of the above motion has been given and is fixed for debate, it is desirable to expedite the proceedings of the Committee.

I would very much appreciate if the report of the Committee is tabled in the House within the next six weeks.

Yours sincerely,

K.B.Ratnayake
Speaker

Systematic colonisation in sporadic attacks

By Kumbakarana

On September 17, the birth anniversary of Anagarika Dharmapala, school children were demonstrating on behalf of the government. They demanded that the armed forces stop the 'war' against the Tigers. One day after this demonstration, 57 people including 14 children were massacred in Gonagala by the Tigers. The same week seven children were injured in bomb blasts in Negombo and Dankotuwa.

They could very well have been the children who were demonstrating the previous day.

Various views about these killings have been expressed. One of them called the Gonagala massacre revenge killing for the bombing in Mullaitivu. Others took the view that such deaths and killing were inevitable in a war.

We have to ask the philosophers of the 'revenge' school of thought, against what or who were the Tigers seeking revenge by the Negombo bomb and the bomb found in Pettah, which fortunately didn't go off.

After 1983 this was the 130th massacre in Ampara. The Sinhalese have not retaliated after these killings; nor did they sought revenge when they were driven out of the north/east. These arguments offer the Tigers no support.

In Ampara about 600 people have been killed, 1337 injured, and around 10,000 have been displaced. We should also remember that 540 Muslims were massacred on eleven occasions.

After 1983, 34 bhikkus, including the Ven Hegoda Indusara were massacred at Aranthalawa. Two hundred and seventeen unarmed civilians were killed in these attacks. Thus in Ampara alone after 1983, 1374 people were killed by the Tigers, for the simple reason that they were Sinhalese and Muslims.

Innocent people do get killed during a war. But the killing of innocent citizens cannot be condoned as the consequences of war.

When one looks at the Tamil population in 1981 and its expansion significant features emerge.

After 1983 Tamil expansionists launched the most number of attacks in areas around Kekulawa, Welioya, Trincomalee, Batticaloa and Mannar. After 1987 Ampara was also attacked. After 17 years of ethnic cleansing and Tamil racism, Tamil colonisation has spread throughout the island.

One region extends from Anamaduwa / Archchikattuwa to Mannar, the other from Panama to Mullaitivu along the western and eastern sea coast. There is also Tamil expansionism around Deraniyagala, Palabeddala, Hatton, Nuwara Eliya and Welimada and across to Passara.

The third region extends from Negombo and Kochchikade to Galkissa and across the High Level Road to Nugegoda. While the aim of the Mallavi Tiger base is to capture areas north of Negombo by intimidation, killings and systematic colonisation, the Tiger bases at Mullaitivu and Toppiagala are poised to link up the East with Passara, Nuwara Eliya by crossing the Kadukan Oya.

Thus the events of Negombo and Ampara are operations designed to link up the Wanni front with the Malayandu front. The intention is to isolate the Sinhalese in the south from the north central regions and encircle them with Tamil settlements. Finally the whole of Sri Lanka will be captured by the Tamil terrorists.

Thus what has been seen as sporadic and dispersed attacks during the past 17 years are in fact being carried out according to a systematic plan. If Ampara cannot be protected, along with Negombo and Wennappuwa the union of such Tamil dominated regions cannot be prevented. If that happens it would be the first step in Tamil colonisation of the whole island.