The Fourth Estate and John Mills statement came true in the case of Thilak Karunaratne v. Sirima Bandaranaike

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.’

The Norochcholai Coal Power Plant

The Power Minister states that the average selling price of electricity per unit  is Rs. 13.50 and the average cost price is Rs. 17.50. As such with a 8% increase in  the average selling price, the price will increase to Rs. 14.58; this increase is only about Rs. 1.0 per unit. It can be seen that even with this increase there is a loss of Rs. 3.0 per unit, and since the CEB and the independent power producers would have generated a total of about 11 billion units for 2010 as such, in 2011 even with this 8 % increase there is a loss of over Rs. 33 billion and this would increase annually by  more than 8% as our GDP growth is 8% and thus electricity growth will be over 8%.
The annual additional growth of electricity will by 2012 be 1.8 billion units and this additional 1.8 billion should be from low cost coal or nuclear as the Power Minister himself states the price per unit from coal is about Rs. 7.50. If the Public Utilities Commission makes public the cost per unit from the much hyped electrical projects like Solar, Kerawalapitiya, Upper Kotmale, Wind Power, Mini Hydro, Dendro, it will be seen that all these are white elephants when compared to the price per unit from coal Rs. 7.50.
The prices are per unit respectively can be stated, starting with Solar, about, Rs. 70, with Plant Factor (PF) 25%,  Kerawalapitiya Rs. 30 per unit with PF 70%, Wind   Rs. 18 with  PF 30 %,  Mini Hydro Rs. 12 with PF 40%,  Dendro Rs. 12 with PF 30%. Also with particle pollution,  correct accurate values could be obtained from the Public Utilities Commission (PUC) but they with all their heavily paid consultants and engineers have consistently avoided giving answers to these  and  similar questions raised. They appear to be thinking that their statutory duties are to protect the Power Minister and the Power Ministry even to the extent of contravening our fundamental rights by permitting cross subsidies, for why should any consumer pay more than Rs.19 per unit when the cost to CEB is Rs. 17.50 per unit while the PUC’s main duty is to give licences for only economic power. As such their reference should be the cost per unit from coal and licences should not have been  given to all the above white elephants stated above.
It should also be noted that whenever the Plant Factor (PF) is below 50%, to firm it up the very high cost oil powered electricity is required.  As such the obvious remedy is to change the attitude to coal power by the Minister and go for accelerated coal power BOT projects which may bring super critical temperature and pressure boilers and turbines which are 30% more efficient and therefore there is a 30% reduction in Green House Gas Emissions, thus also replacing the electrical white elephants; the electricity produced by oil and others of which there are about 6.5 billion units per year.
The PUC, the Power Ministry and the CEB appear to have forgotten that the Mahinda Chintanaya promotes the very economical coal, and one of the first things Mahinda did after being elected as President in 2005  was to kick start the much delayed, cancelled and loan returned Norochcholai  Coal Power Project. If this policy was carried out by the PUC, the CEB, and the Power Ministry they should also have immediately negotiated for a BOT coal power project at Hambantota, where negotiations had almost been completed for a IPP Coal Project when that government was dissolved in 2004, then it would have enabled the CEB not to contravene their statutory duties which are  given by the CEB Act Section 11 (for economical power and stability), Section 38 (for loss free  operation and also having a margin for development); these two statutory duties can also be obtained by visiting www.ceb.lk.
If it is forecast that we will not reach saturation before we reach the allowable limits to us of green house gas emissions which may be after about 7000 Mw coal power stations or more, then we should well in advance plan for nuclear power and our plan should be that coal power and  nuclear power should be the base load and economical hydro with large reservoirs should be the peaking power which will give us one of the least costing electricity supplies in the world and then and only then can we the people be able to have a low cost of living, making use of low cost electricity for cooking.
All our transport costs will come down to about a sixth of the present cost by having electric trains, electric trolley buses, fully electric cars with battery changing stations and thus the necessity for the  worst polluter —  the oil refinery — will be no more and may  be closed down. In the meantime the PUC should remove the unfair cross subsidy which may not even be legal, as why should anybody be forced to pay for others which contravenes our fundamental rights?
If any type of consumer is to be subsidised the government should do so; then it will be found that our industries will have to pay only Rs. 14.50 per unit in spite of the 8%  increase which may be less than what our Industries are paying at present, and that they need not close down and relocate in another country. It will be of interest to the people if the PUC could publish the average cost per month of  each of the 100 ministers who are getting free electricity, so that we the people can judge how conservatively the ministers use one of the highest costing electricity supplies in the world. The people can then see how genuine our politicians are for they are lecturing to us to tighten our belts which have no further room to tighten for the sake of development while they have more than ample room to tighten.

Eng. M.V.R. Perera
Bsc.Eng (Cey), Dip.EE (Lond), CEng FIET (Lond), FIE( Sri Lanka)

Rajapaksa — Less than satisfactory

By Jude Fernando

It may be the best of times, because the upcoming election offers us a “package of promises” from our presidential candidates, expanding at lightning speed as they compete to outperform each other, resulting in virtually identical campaigns.  It is also the worst time, because we are overwhelmed, and have little guarantee that either candidate will fulfill his promises.

The candidates also levy charges of corruption and human rights abuses against each other – the same abuses they collectively denied during the war.  For all their talk about uniting Sri Lankans behind a common purpose, Mahinda Rajapaksa and Sarath Fonseka are running a polarising general election campaign that cultivates fear, rather than debating the merits of their specific policies and their ability to enact them.

Since the beginning of the war, the pattern has been to hold an election immediately after every significant military victory over the LTTE, resulting in a distressingly militarised and undemocratic political culture that provides undue advantage to incumbents, while limiting opportunities for citizens to make informed and reflective choices. The fundamental issue we face is the institutionalisation of the rapid erosion of democratic institutions.  The best outcome we can expect from the current election is that it will increase democratic space, buy us some time to shift current political culture, and eventually effect specific changes in domestic and national policies.

The choice between the two candidates seems easy in some respects, and extremely difficult in others.  There does currently seem to be a certain clarity and consensus about a number of issues that have divided voters in the past.  The majority of the voters are not worried about devolution of power – even the 13th Amendment is a distant dream. Neither are they very concerned about terrorism. Voters are complacent, equating peace with the absence of war, rather than acknowledging that cessation of hostilities is only a precondition for a just solution to conflict.

The two candidates have little incentive to offer a political solution because the victory over the LTTE has strengthened forces opposed to devolution and set back forces who seek peace with justice. The LTTE’s defeat has weakened the bargaining power of Tamil political parties.

Both candidates are committed to capitalist economic policies. The demands of the unholy trinity (WB, IMF, and WTO), coupled with our bankrupt economy, will prevent the government from reducing our cost of living or increasing investments in the public sector, unless the arrangements are friendly towards global capitalism. This means that democratisation (good governance) will be limited by the imperatives of capitalism and tolerate the suppression of dissent.

In the area of foreign policy, the candidates are constrained by Indian, Chinese and Western negotiations over the “best” policies for Sri Lanka. Two years of aggressive anti-Western bias in our foreign policy has opened a greater space for non-Western actors to increase their influence over the internal affairs of Sri Lanka in an unprecedented fashion, though it is less extensive than the influence of Western countries.  Now that the war is over, anti-Western conspiracy theories will lose their power and become less useful for managing domestic and international affairs.
Transition to a stable political order will also be difficult because the respective coalitions have conflicting interests. Attempts to bolster the regime through patronage will increase the risk of destabilising the whole system, and will surely increase violence against so-called “soft targets.” We must not underestimate the enormous influence smaller political parties and interest groups have on government policy. The presence of the JVP in the UNF could stabilise the coalition if Fonseka is able to balance the demands  of redistribution with demands for market-based growth, minus corruption. The opposite could happen if Fonseka fails and if the JVP’s intention is to destabilise the government in order to capture state power.

One could argue that as an independent candidate, Fonseka would not be beholden to any political party or interest group.  Such autonomy, coupled with a lack of political legacy could be a blessing in disguise. At the same time, the lack of a broad political base and experience in civilian administration could make him more vulnerable to compromises. The extent to which the candidates will reduce the powers of the executive presidency depends on their vulnerability to the demands of their respective coalitions and neoliberal institutions.

Preserving the status quo is unacceptable and would be disastrous for the future. It would legitimise those responsible for current crises and absolve them from blame. The majority of current economic and political crises simply cannot be explained in the limited terminology of “terrorism” that dominates political discourse in this administration, and we voters have no obligation to reward the current regime by re-electing the President.  Re-electing the UPFA would allow institutionalized nepotism and patronage to continue unchallenged, at a level unprecedented in the political history of our country, further constraining the space for democracy and progress.

The widely publicised claim that Rajapaksa is a “tin-pot dictator” is based on his four-year legacy of governance. The counter claim that Fonseka is a “traitor” is based on his oft-quoted statement to The Sunday Leader. But the label of ‘traitor’ should apply to all those who betray the country through outrageous abuses of power and public resources, and the failure to live up to promises. The entire country has sacrificed for the war in manifold ways, and everyone should be rewarded for his or her sacrifice, not just a privileged few. Our collective reward should be a better future, not an extension of gratitude for past achievements; it most certainly should not be limited to defeating the LTTE. In this regard, the choice between Rajapaksa and Fonseka is difficult because we have no guarantees or confidence in the winner’s actions after he takes power.
The war was a result of political failures on all sides and there is no evidence that a re-elected Rajapaksa Government would pursue effective policies to correct them.

Former Chief Justice Sarath Silva, in a recent interview with Daily Mirror, noted that “although the war was concluded, no improvements were evident in the areas of human rights, governance, and any solution to the ethnic conflict. For the first time in the country’s history, this government has insulted the Court by defying its orders. The powers of the current President have ballooned to the extent that they cover virtually all areas of life. Holding him accountable to law and order is impossible, as there are no checks and balances. People remain alienated from the government and public services. This is not democracy.”

If the excesses of the LTTE justified the war against it, then the excesses of the current regime do not qualify it to continue. Our choice at the next election is difficult because it is a decision between penalising the candidates for the evil they have already done, and believing their respective promises to do better in the future.  Perhaps we should do a bit of both.

Some claim that a Fonseka presidency could lead to an “invitation for foreign interference, manipulation and influence in the internal affairs of Sri Lanka never experienced before.”  In their eyes Fonseka has “dual loyalties,” because he is a Green Card holder of the United States, but this is far too simplistic an understanding. There are many permanent residents and dual-citizens of the United States in the current ruling party, and the country’s vulnerability to international interference does not depend on a single individual possessing such a mild form of dual identity – the mere right to live and work on foreign soil.

There is fear that Fonseka’s candidacy has re-awakened international interest in investigating war crimes, but the international probe has been ongoing. Internationally, references to Fonseka’s statement are incidental and do not make a difference in UN and ICC proceedings.  Charges levied against Fonseka distract from the fact that the Rajapaksa government has so far failed to defuse the international community’s interests in war crime investigations and penalties for human rights abuses.

It is unlikely that the international community has an exclusive preference for one candidate in this race, and whoever is elected may have to address the concerns of the UN and the international courts. International wrath has descended on Sri Lanka due to the current administration’s injustices and inconsistencies in applying rule of law, and the failure of the government to conduct effective investigations into human rights abuses, leaving perpetrators unpunished. It is worth noting that the current government would benefit if the international community, irked by the continued rejection of UN allegations about the authenticity of the infamous tape, formed a tribunal against Sri Lanka and directly implicated Fonseka.

The fear of rapid militarisation of the society under Fonseka is unfounded.  Rajapaksa is as likely as Fonseka to continue to expand the role of the military in civilian affairs; remember that the militarisation of our society began with decisions made by our civilian leaders.  The reason for militarisation is the erosion of democracy under the ruling party.  World history provides examples of ex-military commanders elected to civilian office. Some of them expanded economic development without corruption and violence, insulated economic decision-making from unproductive political interference, guaranteed general social safety networks, and implemented law and order in civilian affairs. Can Fonseka do this better than Rajapaksa? The answer is: we do not know. What we do know is that Rajapaksa has been tried, and his performance has been less than satisfactory.

Whether or not Fonseka can win, if we work to increase the number of votes he receives, we can hope for a stronger opposition in the future, and we can successfully expand the space for democracy. We can make it more likely that one day we will be able to hold the ruling party accountable, and we can exert pressure to make the next general election more just and fair.