Independence and Freedom Of The Press: The Sri Lankan Experience

By Lakshman Indranath Keerthisinghe

If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had power, would be justified in silencing mankind.’ -John Stuart Mill in his essay ‘On Liberty’ (1859) Dheeraratne J in the case of Thilak Karunaratne v. Sirimavo Bandaranaike and others quoted this statement with approval and said: ‘passage of time has not staled the force of John Stuart Mill’s statement.’

‘The freedom to speak and the freedom to write are essential preconditions for the transition towards democracy and good governance,’ said Director General of UNESCO, Irina Bokova.
Early human rights documents incorporated the Freedom of Speech. In England, the Bill of Rights 1689 granted freedom of speech by Article 3. The Declaration of the Rights of Man and of the Citizen adopted during the French Revolution in 1789, asserted that the freedom of speech is an inalienable right. Article 11 of the said Declaration stated that, ‘The free communication of ideas and opinions is one of the most precious rights of man. Every citizen may accordingly speak, write and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.’ Article 19 of the Universal Declaration of Human Rights(UDHR) adopted in 1948 states that, ‘Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’ Today the right is recognised in international human rights law. The right is enshrined in Article 19 of the International Covenant on Civil and Political Rights(ICCPR), Article 10 of the European Convention on Human Rights(ECHR), Article 13 of the American Convention on Human Rights (ACHR) and Article 9 of the African Charter on Human and Peoples’ Rights(ACHPR). John Milton argued that in addition to the right to express and disseminate information and ideas, it also encompassed the right to seek, receive and impart information and ideas. History reveals that in Ancient Athens during the 5th and 6th Centuries BC, the democratic ideology of free speech evolved. Freedom of religion and speech were cherished ideals in the Roman Republic. In the 7th century AD, Caliph Umar in the Rashidun Period, first declared freedom of speech in Islamic ethics.

Freedom of speech

Article 14(1) (a) of the present (1978) Constitution of Sri Lanka provides that: ‘Every citizen is entitled to the freedom of speech including expression and publication.’ Article 3 asserts that ‘In the Republic of Sri Lanka sovereignty is in the People and is inalienable.’ Sovereignty includes the powers of government, fundamental rights and the franchise.’ Article 4(d) ensures that ‘the fundamental rights which are by the Constitution declared and recognised shall be respected secured and advanced by all the organs of government, and shall not be abridged, restricted or denied save in the manner hereinafter provided.’ Article 15 in 8 sub-articles sets out the restrictions on the aforementioned provisions in detail. Restrictions on fundamental rights, including those described above, may be placed in the interests of national security, public order, protection of public health or morality, racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation or incitement to an offence, national economy or for securing due recognition and respect for the rights and freedoms of others or meeting the general welfare of a democratic society. Thus it is seen that the fundamental rights of a citizen are not absolute but restricted.
In the case of Sinha Ratnatunga v.The State {2001}2Sri LR 172, The Court of Appeal held as follows: ‘What the Press must do is to make us wiser, fuller, surer and sweeter than we are. The Press should not think that they are free to invade the privacy of individuals in the exercise of the constitutional right to freedom of speech and expression merely because the right to privacy is not declared a fundamental right of the individual.’ It was further held that: ‘The law of defamation both civil and criminal is also geared to uphold the human beings’ rights to human dignity by placing controls on the freedom of speech and expression. The press should not seek under the cover of exercising its freedom of speech and expression, make unwarranted incursions into the private domain of individuals and thereby destroy his right to privacy. Public figures are not exceptions. Even a public figure is entitled to a reasonable measure of privacy.’ It is also important to note that the Court held: ‘The press is all about finding the truth and telling it to the people. In pursuit of that, it is necessary that the press should have the broadest possible freedom of the press. In other words there should be very limited control over the newspapers. Otherwise wrong doing would not be disclosed. Charlatans would not be exposed. Unfairness would go unremedied. Misdeeds in the corridors of power in government and private institutions will never be known. However, with that great gift of press freedom comes great responsibility. In other words the more powerful the press is, it should also be a responsible press which will not abuse the enormous power it has.’
Dr.Wickrema Weerasooriya in his speech titled ‘Self Regulation of the Media: Some Thoughts from Experience’ at the Sri Lanka Press Institute on September 6, 2011 published in The Sunday Leader of September 11, 2011, quoted Lord Buddha as follows: ‘You, yourselves should strive towards perfection. The Buddha can only show the way’. ‘Similarly’ he said ‘my humble request to Editors, Journalists and others associated with the media is, you, yourselves should strive towards ensuring a free and socially responsible media. The Code of Professional Conduct and the Press Complaints Commission and all what it is doing can only show the way.’ Dr.Weerasooriya makes out a case for the PCCSL to be renamed Media Ombudsman.
There has been a great deal of misgivings as to what the future would hold for the freedom of the press in Sri Lanka. When some conclude that the evening shadows have begun to fall on press freedom some say that a distant dawn is appearing, where it has been said that in the future the situation would ease and the press would not face the great difficulties it encountered in the past. The banning or closing down of newspapers, burning of presses, killings or murders of popular journalists, abduction and disappearances of journalists, death threats and intimidation of journalists, severe assault or beatings leading to the exile of many journalists have cast a shadow on the freedom of the press in the recent past in Sri Lanka.

Constructive criticism  appreciated and respected

While constructive criticism suggesting solutions to the problems that led to such criticism would be appreciated and respected by any right thinking person, destructive vindictive criticism would be harmful and should be rejected and despised at all times. Here the five ‘C’s in journalism become relevant. The reporting should be clear, correct, concise, complete and consistent. Of course correctness in reporting encompasses that the truth must be stated without fear or favour, as the motto of The Sunday Leader states: ‘unbowed and unafraid.’ There is no doubt whatsoever that although the truth can be suppressed for sometime, it will finally prevail as stated in the Bhagavad Gita ‘Sathyam mevathu Jayathu.”
Due to the efforts of the Free Media Movement and other concerned groups of journalists, Chapter XIX of the Penal Code containing Sections 479 and 480 dealing with defamation has been abolished by the Penal Code (Amendment) Act No.12 of 2002. In 1998, the Colombo Declaration on Press Freedom and Social Responsibility was made. A revision was made in 2002, the year in which the Penal Code was amended to exclude the offence of criminal defamation. Lord Black of Brentwood, Executive Director British Telegraph Media Group and Former Director of the UK Press Complaints Commission in his foreword to the recently published book titled ‘Other War – Sri Lanka’s recent struggle for media freedom.’ by Raja Weerasundera states, “It took many years, much sweat, toil and commitment, but in 2002, the government announced that criminal defamation would be abolished and the country’s media associations reciprocated by announcing that a self regulatory body, the Sri Lanka Press Complaints Commission would be formed. The Press Council set up by the Sri Lanka Press Council Act No. 5 of 1973 has been reactivated although there are two vacancies of members which remain to be filled. Referring to the reactivation of the said Act, Freedom House, a website dedicated to media freedom states: ‘The 1973 Press Council Act, which prohibits disclosure of certain fiscal, defense and security information, had not been enforced in more than a decade, in keeping with an unwritten agreement between the government and media groups. However, in July 2009, the government stated that it was bringing the law back into force. It allows for the imposition of punitive measures, including prison terms, for offenses including publication of internal government communications or cabinet decisions, matters affecting national security and economic issues that would influence price increases or food shortages.

Press Freedom Index

The Reporters Sans Frontiers (RSF) has prepared a Press Freedom Index in which in 2010, Sri Lanka ranked at number 158 just after Saudi Arabia which ranked at 157. Libya ranks at 160 while Eritrea ranks last at 178 and India is at 122. Freedom of the Press can also be affected by indirect means such as increasing the duty on newsprint, restriction of advertisements and censorship. Fear psychosis among journalists can create an atmosphere that may generate the reluctance to report the truth due to fear of reprisals leading to non-reporting of any wrongdoing by the State, which is detrimental to public interest. As Edmund Burke said in ‘On the Sublime and Beautiful: ‘No passion so effectually robs the mind of all its powers of acting and reasoning as fear’. Perhaps the rulers should follow what Chilon, one of the seven sages of Greece said in 6th century B.C: ‘When strong, be merciful, if you would have the respect, not the fear of your neighbours.’ It may also be said about some of the journalists who have been victims of attacks as Euripedes said, ‘A man who has been in danger, when he comes out of it forgets his fears and sometimes he forgets his promises.’ But it is also true as M. F. Tupper said, “A man too careful of danger liveth in continual torment.’ Thus the policy ‘unbowed and unafraid’ appears to be the best policy
In conclusion let me say with Thomas Carlyle in Heroes and Hero Worship, ‘Burke said there were Three Estates in Parliament; but in the Reporters’ Gallery yonder, there sat a Fourth Estate more important than all.’