Evolving Media 'Freedom': The Case for an Indomitable Rights Culture in Sri Lanka

''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 wrongdoing would not be disclosed. Charlatans would not be exposed. Unfairness would go un-remedied. Misdeeds in the corridors of power in government and private institutions will never be known. However, with that great gift of freedom of the press, 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''. - Sinha Ranathunga v. The State {2001}2Sri LR 172

An Introduction

Whilst a balanced and vibrant media is a cornerstone of democracy and the freedom of expression recognised as a universal human right, it is also incumbent upon the journalist to disseminate accurate, timely and responsible information through reportage to the general public. However, throughout time and irrespective of jurisdictional barriers, the threats levelled against free media have been one too many. The writer proposes, through this article, to draw the readers’ attention to just a snapshot of a few select incidents, as experienced in Sri Lanka, among and amidst a painful plethora which exists, in a bid to decipher the future of free media. Whilst it is a paramount duty of the media to act as an educator, it also bears the role of acting as activist, watchdog and guardian of the people. A vibrant media does not stop at mere circulation of news, information and safe opinion. Rather, it extends beyond the safety realms into investigative journalism uncovering the untold truths that implicates, even those at apex power positions. Such journalism wields immense power. Therein lies the importance of ensuring an equilibrium in ‘responsible journalism’ and unfettered media freedom. The power wielded by the media is seen the world over. In the present context when news spreads like wildfire across continents at lightning speed with the advent of technology and social media, a platform is created which allows for a multitude of different opinions to be heard which transcend boundaries. The rights and wrongs of this addictive ‘instantaneous gratification’ culture for content and news beg a further discourse, but for now, the writer proposes to take a brief look at the way things are, in Sri Lanka.

Constitutional safeguards

In Sri Lanka, the second Republican Constitution, by virtue of Article 14, provides for and enshrines the freedom of speech and expression, including publication, subject to ‘such restrictions as may be prescribed by law in the interests of racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation or incitement to an offence’. This right was further cemented by way of the 19thAmendment to the Constitution, which set out the following: 14A. (1) Every citizen shall have the right of access to any information as provided for by law, being information that is required for the exercise or protection of a citizen’s right held by :-

1. The State, a Ministry or any Government Department or any statutory body established or created by or under any law; 2. Any Ministry of a Minister of the Board of Ministers of a Province or any Department or any statutory body established or created by a statute of a Provincial Council; 3. Any local authority; and 4. Any other person, who is in possession of such information relating to any institution referred to in sub-paragraphs (a), (b) or (c) of this paragraph.

This rights enhancement resulted in a fresh thirst for proactive information disclosure. The enactment and operationalisation of the Right to Information Act No. 12 of 2016 followed thereafter, with its preamble setting out: ‘Whereas the Constitution guarantees the right of access to information in Article 14A thereof and there exists a need to foster a culture of transparency and accountability in public authorities by giving effect to the right of access to information and thereby promote a society in which the people of Sri Lanka would be able to more fully participate in public life through combating corruption and promoting accountability and good governance.’ This necessitated then a paradigm shift in mindset, processes and information disclosure, which was undoubtedly a Herculean task, for a country that had, for decades, thrived on secrecy provisions in outdated pieces of legislation such as the Official Secrets Act which banned reporting on classified information, the Establishments Code, and the Press Council Act inter alia. The importance of amending the institutional and legislative framework through which the freedom of expression was guaranteed became then a positive indicator towards ensuring the enhancement of the quality of journalism and holistic media reportage. In Fernando vs. Sri Lanka Broadcasting Corporation [1996] 1 Sri LR 157 the Court held that the right to hold opinion is a corollary of the freedom of thought guaranteed by Article 10 of the Constitution and belong there rather than under Article 14(1)(a).

Present status of Media in Sri Lanka

It is essential that the Media in the country acts as a ‘’fourth estate’’ in ensuring that public officials are accountable to the general public and that essential information impacting their lives is placed before them at all times, in a responsible manner. Just as the separation of powers exists for the three organs of government – the executive, legislature, and judiciary – a system of checks and balances is enabled through a discerning and insightful media. In Sri Lanka, media is self-regulated. It also houses the Sri Lanka Press Institute, registered under the Companies Act No. 07 of 2007, which has as its objectives, among others, to assist, encourage and facilitate the Press to exercise and uphold its freedom and be responsible to the public; to formulate a code of professional conduct for journalists and to facilitate the adherence thereto by journalists; to assist, encourage and facilitate the Press to observe the highest standards of professional conduct in journalism; to facilitate the resolution of disputes between the Public and the Press expeditiously, economically and effectively by conciliation, mediation, arbitration or by any other means of dispute resolution. There is the Sri Lanka Press Council Law, as amended, which is tasked with, inter alia, tendering advice on matters relating to the Press in Sri Lanka, for the investigation of offences relating to the printing and publication of certain matters in newspapers. This has been criticised by varying stakeholders in the media enterprise for having wide powers to penalise journalists for writing critically about government. However electronic media has thrived, unregulated. The writer proposes to delve briefly into a recent attempt made by the powers that be to bring in crippling legislation, which was shot down by strong opposition by mainstream media and civil society.

The most recent attempt to surreptitiously cripple free media through arbitrary legislation

Around mid-2017, a document titled ‘Independent Council for News Media Standards Act – first discussion draft’ was found circulating informally around social media –being spearheaded by the Government Information Department, and an International NGO, with no consultation of mainstream media organisations and other relevant stakeholders. In its preamble it spoke of the establishment of an independent council for News Media Standards with the object to preserve the freedom of news media and to maintain and improve the professional standards of news media in Sri Lanka. However, its content spoke of a different story. The purported draft was riddled with several disconcerting clauses which were arbitrary in nature and posed a genuine threat to media freedom and investigative journalism– among others, it proposed the setting up of an ‘independent’ council vested with far-reaching powers to adopt Codes of Practice at the discretion of this Council, the content of which was unknown, the Council was given the power to hold inquiries on defamation allegations – thus trivialising the citizen’s right to litigation by curtailing it, to warn, admonish a news media outlet, to examine a person under oath or affirmation and require such person to produce any information which is in that person’s possession, to call for any information held by a news media outlet. The council is given immunity from civil or criminal liability attaching to its members or employees which is set out in section 42. The purported draft Act also proposed that anyone who fails to appear before the Council when required commits an offence and shall be liable to a fine not exceeding 100,000 and 3 months’ imprisonment, and that any news media outlet which refused to comply with a decision of the Council commits an offence and shall on conviction be liable to a fine of Rs.1 million. The draft through one of its clauses impinged on a journalist’s right to not disclose a source – it is recognised, the world over, that a journalist cannot be compelled to disclose a source. Whilst this is a clear violation of media freedom and contravenes International Conventions, public interest also dictates that journalists’ rights should be protected when exposing corruption. This draconian clause was specifically in contravention of the Johannesburg Principles on National Security, Freedom of Expression and Access to Information which says in Principle 18: ‘Protection of National Security may not be used as a reason to compel a journalist to reveal a confidential source’. As a result of the massive opposition to this purported draft, and the arbitrary nature of the document, the attempt made to surreptitiously curb, and control free media, was once again defeated.

Corruption finder and watchdog

Although State media has usually been known to cater to the needs of the ruling party in power at the time, it has also been a provider of qualitative programming and documentary content, due to the resources it is privy to. A resurgent private media has helped to bring in the equilibrium to an almost lacklustre style of reportage, through consistent investigative journalism stories, and through regularly keeping a check on state institutions. In recent times, the largest white-collar fraud to be uncovered as a result of consistent media scrutiny was the case of the Central Bank treasury bond scam, which saw the appointment of a Presidential Commission of Inquiry to investigate and inquire into the treasury bond issue, which saw 117 days of hearing, with 71 witnesses examined, including the present and former governors of the Central Bank, the Prime Minister, several key ministers in the existing regime – several revelations coming to light, and key recommendations made by the Presidential Commission necessitating civil and criminal action to be taken. This is this only one instance of media’s prowess in exposing large-scale fraud and corruption implicating and the first step in holding accountable persons at highest levels of office. In years gone by, incidents of media suppression have been one too many. Killings, abductions, disappearances, assaults on journalists, and attacks on media organisations were at one time, commonplace. The last 10 years saw the assassination of senior journalist Lasantha Wickrematunge, a staunch critic of the then government – a claymore attack on the media network of the Capital Maharaja Organisation, the Uthayan newspaper office being set fire to, journalist Prageeth Ekneligoda going missing, assault on journalist Keith Noyahr, assault on Poddala Jayantha, arbitrary arrest of J.S. Tissainayagam among a large number of other incidents which went under the radar. It is disconcerting to note that Sri Lanka was ranked 165 out of 180 countries in the Reporters Without Borders’ Press Freedom Index for 2014. In 2017, Sri Lanka was placed at 141st position. However, the resilience of media and journalists, has remained.

Legal framework and Conventions

District Courts are vested with the jurisdiction of the hearing and determination of cases pertaining to libel and slander – defamation – through media organisations, including print and electronic media outlets – thus ensuring that responsible journalism prevails. The abolition of criminal defamation provisions in the Penal Code and the Press Council Law took place in 2002. In the past, one of the most prominent initiatives with regard to media rights was seen through the report of the RKW Goonasekera Committee on reform of the legislative framework related to the media in Sri Lanka which sat as far back as 1997, which was mandated to: ‘study all existing legislation and regulations affecting media freedom, freedom of expression and the public’s right to information, with a view to identifying the areas which need to be rescinded, amended or reformed in order to ensure media freedom, freedom of expression and the public’s right to information; and to make recommendations as to the amendments and/or repeal of existing legislation as well as new legislation required to strengthen media freedom in general and to ensure freedom of expression and the public’s right to information’. The Committee made several positive recommendations including the bringing in of a freedom of information law, the need for protection in respect of confidentiality of sources, the need for a comprehensive law on contempt of court, the need to exclude parliamentary privilege as a ground for restricting media freedom, inter alia. It is important to be mindful of the International Conventions which bolster the universality of media freedoms. Article 19 of the Universal Declaration of Human Rights enshrines ‘the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference, and impart information and ideas through any media regardless of frontiers’. Article 19 of the International Covenant on Civil and Political Rights (ICCPR) that was ratified by Sri Lanka in 1980 sets out the following:

1. Every one shall have the right to hold opinions without interference. 2. Every one shall have the right to freedom of expression; this shall include freedom to seek, 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 his choice.

This is subjected to certain restrictions, but these shall only be such as are provided by law and are necessary: for respect of the rights or reputation of others; and for the protection of national security or the public order or public health or morals. However, it has been widely held that these restrictions cannot be used to suppress the media. Media’s role in campaigning for timely legal reform This is an area which requires championing by media – by both mainstream traditional media as well as social media outlets through their ‘digital activism’. For instance, the need to repeal the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 which is draconian in nature, and engaging in activism to bring in corresponding anti-terrorism and national security legislation which is in line with international best practices - cannot be stressed enough. So is the creating of awareness on Constitutional Reform which is also of paramount importance. These are decisions that impact and impinge upon the lives of an entire country’s citizenry. Similarly, bringing in legislation regarding abortion rights, the need for reforming legislation on decriminalisation of homosexuality, the need to revisit the status of the Animal Welfare Bill which has seen multiple delays in its passage, evaluating the status on the amendments proposed to the Muslim Marriage and Divorce Act (MMDA) which is of a very sensitive nature, are but a handful of areas which require the media to champion these causes – in the failure of honest politicians and law makers with no political will to work towards the betterment of the country.

Before the Conclusion – enabling media to achieve national unity

As Sri Lanka emerges from a bitter and bloody conflict which saw the hearts and minds of the citizenry battered, the need of the hour is to transcend petty political maneuvring and commercialisation in order to collectively and with genuine intention, formulate and implement a holistic framework on true national unity and reconciliation - not one that is palatable to the international community’s checklist or one that is conceptualised over expensive wines in air conditioned halls amongst the English speaking elite - nor should this framework be one that caters to the strategic or divisive political yearnings of the hour. Rather, this real reconciliation must be understood and felt by those that live in the once war-battered deep north, whilst including the people of the deep south as well. Taking this message across to all countrymen is bound to be an arduous one. Therein lies the role of an inclusive and responsible free media – with islandwide reach. A comprehensive transitional justice mechanism which includes establishing an accountability framework, truth seeking, reparation and institutional reforms is an area which mandatorily requires the unstinted support of state and private media due to its coverage and capacity to touch hundreds of thousands of people situated across the country. It is important to overcome as a country, the skepticism which remains in the minds of a people previously bruised, and indeed a responsibility of successive governments to have come up with a sufficiently convincing and comprehensive transitional justice strategy and confidence building measures. It is then important to acknowledge the need to move away from an unreflective thinking culture to one that facilitates critical thinking. A country’s development then should be seen beyond multi-mega development projects. We require a citizenry that questions its elected public representatives, a citizenry that questions a lack of policy making and a citizenry that demands disclosure. This culture can only be facilitated through a robust and empowered free media. We require engagement of the citizenry in addressing gaps which exist in the law making process. We need to encourage the public to challenge bills by using the media to outline the legal procedure of doing so and highlighting the importance of so. This is only a snapshot of the manner in which media then needs to be engaged in enhancing the quality of life.

Corresponding obligations

The writer suggests that in a bid to strengthen a robust and responsible media in Sri Lanka, it is important to have systems in place to ensure regular curated training programmes on freedom of expression and corresponding responsibilities, racially sensitive reporting, ethical reporting and public interest journalism. These processes must involve and engage consultatively experts and varying stakeholders in the free media enterprise including and not limited to those actively engaged in the media, state officials, decision makers, civil society, regulatory bodies, lawyers and judges who are conversant in developments in media law – this is necessary to sustain a qualitative and meaningful self-regulatory mechanism for media. Correspondingly, moving away from a culture of state sanctioned impunity, media suppression and ‘white vans’ requires then a paradigm shift in mindset and structure. Therein lies the responsibility of the state to ensure protection mechanisms which include ensuring accountability, freedom from harassment, attacks and abductions of journalists. This also includes supporting national reforms in broadcasting, documenting cases of media rights violations and providing unstinted support to state and private media organisations. While in theory, this makes for a desirable objective, the reality begs to differ. Bribery and corruption are inextricably linked to the structure and fabric of the Sri Lankan political framework, so much so that any attempts to divulge or expose these incidents warrant problems for the media. Whilst there are adequate law enforcement agencies that are mandated and tasked with combating bribery and corruption and general wrongdoing, corruption at the highest echelons of government sometimes goes unchecked.

A Conclusion

The case for an indomitable and responsible media rights culture in Sri Lanka, requires, other prerequisites - a vibrant democracy which encompasses an unbowed political leadership which does not seek to stifle free media, a strong political opposition, an independent judiciary, and an aware, rights-conscious citizenry inter alia. Accurate dissemination of information to the general public is a right, with a responsibility cast on States to enable. Just as separation of powers exists to provide a system of checks and balances to the three organs of government, so is there a need to have in place the fourth pillar – that of media, to act as the proverbial watchdog. As to whether the road ahead seems closer towards achieving this in Sri Lanka, remains to be experienced. Yet, it is imperative that we remain optimistic yet cautious, equipped with a knowledge of our rights, and with resilient fighting spirit to gain it back if challenged or attacked. “To struggle against censorship, whatever its nature, and whatever the power under which it exists, is my duty as a writer, as are calls for freedom of the press. I am a passionate supporter of that freedom, and I consider that if any writer were to imagine that he could prove he didn't need that freedom, then he would be like a fish affirming in public that it didn't need water.”  Mikhail Bulgakov, Manuscripts Don't Burn: Mikhail Bulgakov A Life in Letters and Diaries   [This article was originally published in the Bar Association Law Journal - 2017]*