Groundviews

SECURING THE FREEDOM OF EXPRESSION IN THE NEW SRI LANKA: ESSENTIAL INSTITUTIONAL REFORMS

Cartoon by Awantha Artigala via Sri Lanka 16 days

Chapter 11 of the common opposition candidate’s presidential election manifesto is devoted to media freedom. Among other things, it includes simple commitments such as lifting the bans on news websites run from abroad. Such infantile measures were typical of the tin-pot – and ultimately self-defeating – despotism that emanated from the erstwhile Ministry of Defence. The emphasis on media freedom in a separate chapter of the manifesto was quite rightly placed, in view of the stupendous suppression to which the free media and independent journalists had been subjected under the Rajapaksa regime, and the disgusting depths to which the state media had sunk in service of it. If we are to rebuild not only a democratic society but also a decent society, then the institutional framework for the freedom of expression – the central and most crucial safeguard of the democratic way of life – must be reformed and strengthened as a matter of the highest urgency. There have been a number of ideas in this regard that had been developed and promoted by civil society and journalists’ organisations in the past, and which merit consideration by the new government. During the decade of the Rajapaksa regime when Sri Lanka was regressing in the quality and manner of enjoyment of the constitutional and human right to freedom of expression, the rest of the world had been making great strides forward, especially through developments in information and communications technology. Those more proficient in the technical dimensions of these developments would no doubt be able to add to and enhance the proposals for institutional reforms I make here.

The obvious starting point in considering the reinforcement of the freedom of expression in our country is to examine how the domestic constitutional provision for that fundamental right measures up to our international obligations in respect of it. Our international obligations in this regard are contained primarily in the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPR relates to the freedom of expression and opinion, and is formulated in wider terms than the corresponding right to speech in Article 14 (1) (a) of the Sri Lankan constitution, to include the right to hold opinions without interference, to receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, or in print, in the form of art, or through any other media of a person’s choice. Article 14 (1) (a) of the Sri Lankan constitution by contrast only establishes the freedom of speech and expression including publication, although the case law of the Supreme Court has taken a liberal approach to what constitutes ‘expression’. Accordingly, the right to vote (e.g., the Chief Minister’s Case) and non-speech forms of political protest have been held to be within the ambit of freedom of expression (the Jana Ghosha Case), as well as the right to dissent (the Yukthiya Case). The court has also held on occasion that freedom of expression includes the freedom to receive and disseminate some forms of information (e.g., Wimal Fernando’s Case), although a specific right to information is absent as a fundamental right in the Sri Lankan constitution – more on this later.

These pronouncements of the court, however, do not ameliorate the absence or vitiate the need for a more robust textual formulation of the freedom of expression in line with international standards, including the ICCPR. It must also be remembered, moreover, that the Supreme Court has not a uniformly liberal record in this respect. In many instances, its judgments have been regressive and out of step with international standards, including in a recent case in which it imposed its own views on culture and morality in a challenge involving the banning of a film meant for adult audiences (the Aksharaya Case). Similarly, the wholly arbitrary and retrograde use of the powers under the law of contempt of court has had a directly adverse impact on the freedom of expression and the media. Parliament has also used its power to punish for contempt oppressively against newspapers and journalists in the past, although not recently.

One of the major weaknesses in the way our constitution articulates the freedom of expression is that the requirement of ‘necessity’ in ICCPR Article 19 (3) for the restriction of this right is absent in the Sri Lankan framework for restrictions. Likewise, the provision in Article 15 (7) of the constitution of ‘meeting the just requirements of the general welfare of a democratic society’ is not allowed as a distinct ground of restriction in the ICCPR, although other grounds of restriction enumerated in this provision are allowed by the ICCPR. Article 15 (1) of the constitution imposes specific grounds of restriction on the freedom of expression such as the interests of racial and religious harmony, or in relation to parliamentary privilege, contempt of court, defamation, or incitement to an offence. Excepting defamation and incitement to an offence, covered by ICCPR Articles 19 (3) (a) and Article 20, respectively, none of these other grounds for restriction are recognised by the ICCPR. This underscores another issue that has recently had a chilling effect on freedom of expression: the statutorily unregulated nature of the law relating to contempt of court in Sri Lanka, which has occasioned the use of these powers in a manner inimical to the freedom of expression as envisaged by the ICCPR. The most prominent recent abuser of the common law contempt of court has been the former Chief Justice Sarath N. Silva, who summarily imprisoned Tony Fernando and S.B. Dissanayake for relatively minor transgressions. A Contempt of Court Act consistent with international standards of freedom of expression is also therefore a pressing necessity, and proposals in this regard have already been developed by lawyers and journalists’ groups.

It is also to be noted that the rights under Article 14 (1) (a) are only available to Sri Lankan citizens, and not all persons within the territory and subject to the jurisdiction of the Sri Lankan state as required by Article 2 (1) of the ICCPR. The freedom of expression has been particularly vulnerable under circumstances of emergency, with prior censorship being imposed during times of acute crisis through emergency regulations. The Supreme Court has generally displayed a tendency to favour the state in fundamental rights challenges in this respect (e.g., Sunila Abeysekera’s Case). Likewise, the deleterious nature of the Prevention of Terrorism Act (PTA) in respect of freedom of expression was vividly demonstrated in the unconscionable detention, prosecution, conviction, and imprisonment of J.S. Tissainayagam. The disproportionality of his punishment was nicely captured by Amal de Chickera elsewhere in these pages: “85 words, 20 years, three months per word.”

It is very clear therefore that we can vastly improve the way we constitutionally protect and enforce the freedom of expression as a fundamental right in Sri Lanka. Since the common opposition manifesto limits itself to constitutional reforms that do not require a referendum, it is worthwhile noting that Article 14 (1) (a) is not an entrenched provision in the constitution, and therefore the changes to it demanded by the problems and in the ways identified above can in fact be part of the 100-day programme. This would seem to me to be a higher priority than, for example, the reform of the parliamentary committee system, which is included in the 100-day programme.

From foundations, then, to structures. The reform of the state-owned or controlled media institutions had been on the agenda for years, before the Rajapaksa regime not merely stalled reform, but recreated these institutions in ways that would put Stalin’s agitprop commissars to shame. The thoroughgoing abuse of these publicly-owned and tax-funded institutions, and the abysmal behaviour of the party hacks appointed to run them under the shield of impunity, have compounded the urgent necessity for introducing reforms in this sector. In approaching the reform of the state media, however, we must be clear about the principles by which we are guided.

One of the key principles in this respect is that reforming state media does not imply simply privatising them. Rather, the aim must be to remove political control over these institutions and to reconstruct them as genuinely public service media. This entails bringing Sri Lanka in line with best practices in modern democracies whereby public service media constitute a fundamental instrument for the realisation of the civil and political rights of citizenship. Put another way, while the privately-owned media must have the full freedom to compete as commercial entities in a capitalist market, the publicly-owned public service media institutions serve to fill the gaps that the market does not address. It educates and informs the public, it ensures a pluralism of views, it promotes the values of citizenship, it encourages the cultural expression of communal diversity that constitute the Sri Lankan society, and it supports the cultural and intellectual production of ideas that commercial media entities are usually not interested in. These are the Reithian values upon which public broadcasting had originally been founded in Sri Lanka, but which have got lost along the way.

The second major principle concerns the design of institutions: they must be efficient at the same time as they are transparent and accountable. Accountability follows public ownership, and transparency is essential to avoiding the abuse of these institutions we have seen since the 1970s. But we must also ensure that they are efficient, or in other words, cost effective and provide services that reflect best value for the tax-payer’s money.

The need therefore is to find an appropriate institutional form that gives expression to these principles, which in turn represents a move away from the anachronistic assumptions that govern the state media structures in Sri Lanka today. Civil society and journalists’ organisations have often suggested the following measures as being imperative if we are to move in a new direction in respect of state-owned media.

An independent Media Commission was part of the original proposals of what was eventually enacted as the Seventeenth Amendment to the Constitution. The need for such a Media Commission has only increased, and with the promise of the re-enactment of the Seventeenth Amendment or similar framework under the 100-day programme, we must ensure that an independent Media Commission is set up with the same constitutional standing as the other independent bodies that were listed in the Schedule to Article 41B of the constitution. The independent Media Commission should be appointed on the recommendation of the Constitutional Council and must feature the representation of, inter alios, working journalists, academics in relevant fields, proprietors, and now, also ‘new media’ practitioners. The Commission once constituted would have overall oversight of public service media and would be answerable to Parliament. Its primary role would be to oversee the public service media institutions, but may include other powers and functions, including the regulation of the (new and traditional) media marketplace, and to promote the freedom of expression in all its forms including through new technology.

Overseen by the constitutionally established and mandated Media Commission, the state broadcast and print media require further reforms, albeit in separate ways. The Independent Television Network (ITN) may be privatised, as originally envisaged. Political control over the Sri Lanka Broadcasting Corporation (SLBC), and the Sri Lanka Rupavahini Corporation (SLRC), which would remain under state – or rather public – ownership, must be immediately relinquished in favour of a new legal regime for public service broadcasting under the control and direction of an Independent Broadcasting Authority that is appointed by the Media Commission. Detailed proposals in this regard have been developed as early as 1996 by the Centre for Policy Alternatives (CPA) and the Free Media Movement (FMM), and during the last UNF administration, were even put into Bill form.

In addition to this, the recommendations of the Sidath Sri Nandalochana Committee on the ‘broad-basing’ of the ownership of the Associated Newspapers of Ceylon Ltd (ANCL) could be implemented, if there is no consensus on privatisation. The ‘broad-basing’ rather than outright sale was an elaborate sop to the Lake House unions in the 1990s, and I am not at all sure how this can be defended in principle or practice today. There is no functioning contemporary democracy in which there is any justification for collectivised newspaper companies. The privatisation of ANCL, however, must be done in a legal and transparent manner, together with accompanying framework rules – again perhaps a role for the Media Commission – that ensure proper pluralism and competition in the media marketplace. It does not, emphatically, mean an adoption of the Rajapaksa, or their predecessors’, method of hiving off undervalued public goods to favoured cronies, who then destroy editorial and journalistic independence. Although the analogy is not exact, the tragedy that has befallen The – once great – Sunday Leader should guide us here (but at least on 8th January, dear old Lasantha had the last laugh from beyond the grave!)

Beyond all this, the common opposition manifesto contains a specific commitment to the enactment of a right to information law. Various proposals in this regard have been circulating in the recent past. Although well-intentioned, some of these drafts have been of very poor quality, often representing cut-and-paste jobs from model laws like that of Article XIX (the London-based INGO working on freedom of expression), which bear little or no relation to the actual practical and policy challenges that such a law must deal with in Sri Lanka. By contrast, there was a Freedom of Information Bill (officially called the ‘Access to Official Information’ Bill) that was painstakingly negotiated and carefully drafted through a highly consultative and deliberative process involving the then UNF government (represented by the then Attorney-General, the then Secretary to the Ministry of Justice, and the then Assistant Legal Draughtsman), the Editors’ Guild, the FMM, and the CPA during 2003. International experts invited to comment on the draft observed that it not only met the highest international standards but in some respects exceeded them (e.g., the narrow scope of exceptions; the use of the public interest test; the facilities for access, including sua sponte clauses and cost-free access; the short time limits of archival protection; the severability of records for purposes of disclosure; the availability of even protected information provided the request was not for publication; the elaborate reporting obligations of officials from Information Officers up to the Minister; and the enforcement machinery, including a constitutionally established Information Commission under the Seventeenth Amendment framework). Put into Bill form by the Legal Draughtsman’s Department, it was given the approval of the Wickremesinghe Cabinet as well as President Kumaratunga in February 2004, but was unfortunately not passed following the dissolution of Parliament soon thereafter. This is the draft Bill that should constitute the basis for the legislation contemplated by the new government, and my view is that with very minor alterations (e.g., that information relating to the peace process was protected at the time, and has no relevance now), it would prove to be a very suitable freedom of information law for our country as it embarks upon a new democratic path.

In addition to a good Freedom of Information Act, there is another very significant way in which this right can be reinforced, and that is to embed the Act in a constitutional foundation. As I noted before, our bill of rights only reflects a right to speech, expression, and publication, and although the Supreme Court has recognised a limited right to receive certain kinds of information, this is very far from a constitutional right to information (in the way for e.g., South Africa has such a right). Again as I noted before, Article 14 is not entrenched and therefore may be amended without a referendum, and so I would strongly argue that if freedom of information is to be best protected, it must be given a constitutional underpinning by expressly including the right to information within the scope of the freedom of expression, or as a stand-alone right in the chapter on fundamental rights.

What I have proposed above constitute only some of the most basic institutional reforms that I believe are essential if the new administration is serious about addressing this most bruised and battered of rights under the previous dispensation. There is more that can, and should, be done to re-establish and reinforce the freedom of expression in Sri Lanka, so that our great tradition of open engagement with the world can recommence. But let us make a start with these, so that the democratic renewal for which Sri Lankans voted last week is made irreversible, and free expression in all its forms and manifestations can begin to thrive. Never must we allow the fear, the ignorance, the xenophobia, and indeed the superstition, that ruled our public life and discourse for so long be allowed to mar our spirit and promise again.