Photo courtesy of Sri Lanka Brief
Today is World Press Freedom Day with the theme “Information as a Public Good”
“Stifling the peaceful expression of legitimate dissent today can only result, inexorably, in the catastrophic explosion of violence some other day.” Supreme Court of Sri Lanka, SC 468/92
On April 30, when the Indian Supreme Court was hearing a case which it had initiated by itself (Suo Motto) to examine issues relating to the management of COVID-19, one of the judges is reported to have stated that, “We want to make it very clear that if citizens communicate their grievance on social media and internet then it cannot be said its wrong information. We don’t want any clampdown of information. We will treat it as a contempt of court if such grievances is considered for action”.
This statement reminds us that freedom of expression is critically important in emergencies and crisis situations, despite the tendency amongst many governments to clamp down on freedom of expression during times of difficulty. The statement affirms that freedom of expression can enable the most vulnerable to seek assistance and will help governments and others to become aware of and respond to the urgent needs of citizens, as well as ensure that policies, laws and practices meet the essential needs of the people.
When I read this statement, I immediately remembered an official public notice from the police during the height of the countrywide curfew imposed last year saying that strict action will be taken against those who criticize and point out minor shortcomings or failures of state officials. This led the former Chair of the Human Rights Commission of Sri Lanka to warn the police that any arrest for mere criticism of public officials or policies would be unconstitutional, and that the right to comment on and criticize the performance of public officials or of anyone else or any policy is a fundamental aspect of a democratic society, and further, that it is through criticism and commentary that governance can be improved and democracy strengthened.
Judicial protection of freedom of expression
On the same day I read about the Indian Supreme Court’s statement, I read media reports that a man had been arrested in Colombo for urging motorists to honk to express their displeasure about being held up due to an unannounced roadblock for a Very Very Important Person (VVIP) movement. I had seen a video on social media the previous day which showed the motorists held up due to the roadblock responding positively to the man’s spontaneous calls to honk in protest. The videos didn’t indicate any violent behavior or obstructions to the police or public. The man seemed to have voted for the present government, as he repeatedly said, “Is this what we voted for?”.
Honking as a form of protest is not new in Sri Lanka. As news spread of last week’s arrest, some media highlighted the fact that present Prime Minister and former President Mahinda Rajapaksa said in 2019 that honking loudly in response to the closure of roads for VIP vehicular movement is a natural reaction, which showed the public’s anger towards the government.
The incident also led me to recall an important ruling by the Sri Lankan Supreme Court in 1993, when the then opposition, including Mahinda Rajapaksa, had organized and participated in a Jana Ghosha (People’s Noise) to protest against various policies and practices of the government. The Supreme Court had recognized that the Jana Ghosha had consisted of a noisy cacophony of protests including the tooting of motor vehicle horns and gave a historic determination that speech and expression extend to forms other than oral or verbal and that criticism of the Government, and of political parties and policies, is a permissible exercise of freedom of speech under the constitution. The judge who wrote the judgment also reiterated that the expression of views which may be unpopular, obnoxious, distasteful or wrong, is nevertheless within the ambit of freedom of speech and expression, provided there is no advocacy of, or incitement to, violence or other illegal conduct.
There have been other important judicial decisions affirming the importance of freedom of expression. In February this year, the Sri Lankan Supreme Court handed down a verdict related to the 2008 censorship/early termination of Rupavahini, a television programme on state TV. One of the petitioners was a panelist on the TV programme. The ruling highlighted the fact that that critical comments about the government should not be a reason for censorship. The other petitioner was a viewer who claimed his right to receive information was violated. The court ruled that he was entitled to receive information purported to be disseminated by the programme as well as that which he may have received by posing questions to the panelists through the scheduled phone-in component of the programme which never occurred. The case also dealt with freedom of expression in relation to contempt of court and stated that sub judice is not meant to justify autocratic and stifling conduct relating to freedom of expression and should not be used as a cloak to stifle the citizen’s right to freedom of expression.
The constitution specifies that freedom of expression may only be restricted as prescribed by law and for limited purposes of racial and religious harmony, national security, public order and protection of public health or morality, to secure rights and freedoms of others, meeting just requirements of the general welfare of a democratic society, parliamentary privilege, contempt of court, defamation or incitement to an offence. But in practice, it appears that freedom of expression is often restricted in the interests of ruling governments including to repress dissent. In recent times, the International Covenant on Civil and Political Rights (ICCPR) Act no. 56 of 2007 and the Prevention of Terrorism Act (PTA) have been used to stifle free expression.
Realities and prospects for free expression in Sri Lanka
The arrest of the honking protest organizer indicates realities of freedom after expression that are far removed from the right to freedom of expression as articulated by the former Chair of the Human Rights Commission and Supreme Court Judges in Sri Lanka and India.
Dozens of journalists have been killed, abducted or have disappeared in the past two decades in Sri Lanka. According to Journalists for Democracy in Sri Lanka (JDS) 44 journalists and media workers were killed or disappeared during this period. Many have been arrested and detained, assaulted, threatened, intimidated and harassed. Furthermore, media institutions have been subjected to arson, with one Tamil newspaper in the war-ravaged north and one Colombo-based English weekend paper targeted repeatedly during and after the war. Such incidents have occurred under all recent administrations, with the J. R. Jayawardena/R. Premadasa-led United National Party governments in the late 1980s and Mahinda Rajapaksa (and family)-led government between 2006-2014 being particularly bloody years for media. To the best of my knowledge, no one has been convicted for any of these crimes and there is only one ongoing prosecution (the case of disappeared journalist Prageeth Ekneligoda – which started in late 2019). But not much progress has been made even in this case, with multiple hearings being postponed due to Covid-19-related lockdowns last year. The progress of the case is in serious doubt, with the Chief of the Criminal Investigations Department (CID) that led the probe being jailed and a lead investigator having fled the country. Serious concerns may arise from a Presidential Commission of Inquiry (PCoI) appointed to look into incidents of political victimisation, which heard from a key eyewitness in Ekneligoda’s case one day after the judges at the Trial at Bar ordered the witness not to appear before the Commission. The witness recanted his previous testimony at the Commission, which may seriously affect the prosecution. There are also reports that the Commission report and a Parliamentary resolution tabled by the Prime Minister may lead to the withdrawal of the case.
Impunity has served as a license to continuing crimes and violations against free expression. Today, freedom of expression is severely threatened through laws, policies, arrests, detentions, torture, threats, intimidation, harassments and restrictions on journalists, media institutions and those exercising freedom of expression. At the end of this article, I list 29 examples of such incidents in first four months of 2021. These include three detentions under the PTA ranging from 5-12 months and case from last year under the ICCPR Act that is continuing, though the suspect was released on bail after about five months in detention. All four of these cases have had a chilling effect on free expression. The actual number of incidents that endanger free expression is likely to be higher, with the examples cited being based on information provided by families of victims, lawyers, media freedom monitoring reports of the Free Media Movement and other media reports. Another major challenge is self-censorship, which I and many other individuals and institutions have subjected ourselves to, sometimes in response to friendly advise or pressure from colleagues, friends and family members. At least one journalist and a prolific social media commentator has left the country in the last twelve months, fearing reprisals.
Like Sri Lanka’s Black January, World Press Freedom Day must become a day to recall old and new challenges to freedom of expression, a day that demands a stop to ongoing crimes and a day that demands accountability for past violations of free expression. It must encourage and nurture peaceful and democratic dissent, resistance, and defiance that are still there in some traditional and new media, offline and online, amongst journalists and ordinary citizens. Judicial protection and international support is important, but the media, artists and all citizens asserting and fighting for their rights are what is most essential for the protection and promotion of free expression.
Governments must listen to the warning from our Supreme Court (SC468/92) that stifling the peaceful expression of legitimate dissent today can only result, inexorably, in the catastrophic explosion of violence some other day.
Policy and Legal trends that could negatively affect freedom of expression
In March, six media freedom organizations stated that President Gotabaya Rajapaksa had given a dangerous signal of an ominous threat to the freedom of media and expression that will intimidate those who make critical remarks against the government. The President had stated that, “I know how to teach a lesson if they (media) need to be taught. Those who worked against us during the war are in those media institutions”. Also in March, the Free Media Movement warned that the decision by the Cabinet of Ministers to enact a law to prevent false and misleading statements via the internet might compromise freedom of expression and that mere criticism of the government or key officials or policies can be defined as false news and used to suppress journalists and social activists. In another negative development, in April, a resolution was tabled in parliament, based on the Presidential Commission on Political Victimization to withdraw court cases involving government officials and members of armed forces. Several members of armed forces are suspects and accused in several high-profile cases involving murder, enforced disappearance and assaults on journalists, including in the only case that has led to a prosecution mentioned above. In January 2021, the Cabinet of Ministers decided that the Press Council Act “should be structurally reformed as a Tribunal for journalists and media institutions covering electronic, print and new media”. One of the reasons organizations such as the Sri Lanka Press Institute and the Free Media Movement has consistently opposed the Press Council Act is the punitive dimensions of the Act. In March, the government issued the The Prevention of Terrorism (De-radicalization from holding violent extremist religious ideology) Regulations No. 01 of 2021, expanding the draconian Prevention of Terrorism Act (PTA) that has been used against those exercising their right to freedom of expression. The new regulation covers “words either spoken or intended to be read or by signs or by visible representations”, which can lead to up to two years detention without trial.
Arrests, Detentions and Torture
The arrest of the honking protest organizer was the latest in an ongoing trend of arrests and detentions related to freedom of expression this year. It has been around a year since a young poet and an outspoken lawyer were placed in detention without charges, cases mired with serious problems related to due process, such as denial of free and meaningful access to lawyers and failure to be regularly produced before a judge. Batticaloa-based journalist Murugapillai Kokila Dasan has also been detained now for about 5 months without charges, and according to his lawyer, the police have not yet sent the files to the Attorney General’s department to make a decision about whether to release or file charges. All of these individuals have been detained under the Prevention of Terrorism Act, and can be granted bail if the Attorney General agrees. The case against social media commentator Ramzy Razeek under the ICCPR Act in relation to a Facebook post also continues. Razeek was only released on bail after about five months in detention, with the judge who ordered bail emphasizing freedom of expression and right to criticism.
In April this year, Malika Abeykook, a photojournalist covering a protest, was arrested, detained for several days, and tortured. Also in April, Asela Sampath, a consumer rights activist, was arrested based on a warrant issued in 2019 just a few days after he had publicly criticized a government relief initiative. In March, Sujeewa Gamage, a journalist who worked in several print and web media, was arrested after the police alleged that he had made false complaints about being abducted and tortured. He was later released on bail and denied allegations made by the police. His lawyer also said he was not allowed to represent his client in the custody of the police. Also in March, the office of the YouTube channel tubetamil and its website situated in Jaffna were raided, two persons arrested and several desktop computers, laptops and equipment confiscated. According to the police, the website had been publishing various news items promoting terrorism and the arrests and confiscation of equipment were carried out under the Prevention of Terrorism Act (PTA). In February, a 25-year-old youth was arrested for allegedly posting a video on social media containing photographs of Velupillai Prabhakaran, the late leader of the LTTE, a banned organization in Sri Lanka. In January, Fazl Muhammed Nizar, a regular writer for a website was arrested under the International Covenant of Civil and Political Rights Act (ICCPR Act). According to the Free Media Movement, the arrest was prompted by a video posted on Facebook by Nizar criticizing a controversial statement made by the President, and the latter part of the video contains a section where the monks are scolded in obscene language.
Threats, intimidation, harassment
As in the past decades, threats, intimidations and harrasments of those exercising freedom of expression has continued this year too and has become a major deterence to free expression in Sri Lanka. In April, two government officials were subjected to disciplinary hearings and transfers based on allegations that they had criticized President Gotabaya Rajapaksa on Facebook. In March, BBC Tamil correspondent Ranjan Arun Prasad lodged a complaint with the Police Headquarters alleging that a suspicious group was searching for his personal information in Colombo and that the group had followed him during a visit to the North for his official work. When the daughter of assassinated editor Lasantha Wickramatunge wrote an article to the Washington Post about lack of justice, the Secretary to the Ministry of Foreign Affairs and the Minister of Mass Media accused her of trying to destroy Sri Lanka and being controlled by a network of opposition politicians and diaspora groups. Also in March, Bhagya Abeyratne of Rakwana, a young female, faced intimidation and harassment after she had commented on the environmental destruction taking near her home to a popular TV station. This led to visits by the police and forest department and threatening comments being made against her on social media. A painting that was displayed at the Viharamahadevi Park in Colombo by group of youth to commemorate the Global Climate Change day was removed by the police and Colombo Municipal Council. The image, entitled “Stop Ecocide”, depicted environmental destruction and its effects. Some media reported that the removal was by order of the President’s Office and that on the next day, the President spoke critically about displaying the painting. In February, when a historic 5-day long march was organized by mostly Tamils, with support of Muslims, from Pottuvil in the East to Polikandy in the North (P2P), it faced intimidation before, during and after, including the serving of court orders and interrogation by the police, as well as targeting of some organizers, participants and journalists. In February, the Kataragama local correspondent M. K. Nandasena of the Lankadeepa newspaper is reported to have been threatened over the phone by a Police officer in the Kataragama Police. Nandasena had reported that the officer was infected with the coronavirus after having attended the Independence Day celebrations in Colombo. In January, the Secretary to the State Minister Sarath Weerasekara, who is responsible for the Police, is reported to have threatened journalist Shiran Ranasinghe and Mawbima Editorial Director Sisira Paranathanthri over the phone regarding a report published in the Mawbima newspaper stating that police had demolished shops in the Maharagama town development activities. Also in January, Lakmal Ranabahu, a freelance journalist and environmental activist, was reported to have been severely beaten by a group, leaving him with a broken arm, facial and body injuries. The attack is reported to have taken place when he was returning from the Kalawana Divisional Secretariat after making a complaint about environmental damage The suspects were reported to have been arrested and released on police bail.
Two months ago, two journalists and I were barred by the navy from visiting a remote island in the North to cover a peaceful protest by residents. The Government Agent /(District Secretary), the senior most civilian government official for the district, had confirmed there are no restrictions. Despite lodging a complaint to the Human Rights Commission, the Convener of the Free Media Movement contacting the Minister of Media and the then Director General of the Government Information Department on the same day, this matter has still not been resolved. In another move to restrict access to information, a circular dated February 12, 2021 had specified that there should be briefings for media only if there is a need, after district and divisional coordinating meetings. This appears to be an attempt to restrict media from attending these meetings, which has been the practice so far, based on a previous circular in 2017. Discussions and decisions at these meetings are often about critical matters that affect the local population, and this move is likely to seriously affect the work of provincial journalists and right to information of the public on matters that affect their lives, contradicting the spirit of the constitutional Right to Information. Last week, a popular news website lodged a complaint with the Human Rights Commission of Sri Lanka after being verbally informed by the Government Information Department that its 2019 application for registration with the Ministry of Mass Media had been rejected based on a “confidential report” from the Ministry of Defense.