Media freedom, and WILD ASS FREEDOM

Lakshman I.Keerthisinghe LLB, LLM.MPhil, Attorney-at-Law

‘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)

It was recently reported in the media that at a workshop for media in Sri Lanka which was held by the government to mark World Press Freedom Day, under the title “Patriotism and the role of media”, Minister of Mass Media and Information Keheliya Rambukwella said that Sri Lanka’s media has to act responsibly and with self-constraint.

Mass Media and Information Minister Keheliya Rambukwella

The Minister said that “The media which is a trustworthy and powerful tool in moulding people’s opinion and understanding is playing an important and powerful assignment similar to the Legislature, the executive and the judiciary. If the people get true information about things happening in the country at all times they will come to right conclusions. The trust of the people will not get slackened. But distorting of information, misleading the people’s opinion, and destabilizing the society by using the media are also taking place. In this regard that it is important that the professional journalists should act with the right understanding.”

International human rights law

The Minister’s statement reminds one of the statement made by the Director General of UNESCO, Irina Bokova, where it was said that ‘The freedom to speak and the freedom to write are essential preconditions for the transition towards democracy and good governance,’. 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 recognized 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.

Privacy of individuals

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 recognized 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 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.’

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 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.’

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 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.

It has been seen in recent times with the relentless anti government propaganda spread in both local and foreign print and electronic media, at the behest of the TGTE, its allied front organizations and the diaspora, hell bent to establish a State of Eelaam in the North and East of Sri Lanka, to name any journalist or writer who appreciates the service rendered to our motherland by the Sri Lankan Security Forces under the able leadership of the President in freeing our motherland from the maniacal butchering of Sri Lankans by the barbaric LTTE for three decades, as a racist or a lackey of the present regime. Such journalists are also insulted as those washing the dirty linen of the government.

Social and moral ethics

The journalists engaged by the TGTE and its allies washing the dirtiest blood soaked linen of Prabhakaran and the LTTE are heroes or freedom fighters in the eyes of these persons.

As Minister Rambukwella very correctly stated at the workshop “As it has been emphasized in the Mahinda Chinthana it is my belief that instead of using the media for mere political animosity, it should be used with self restraints for achieving country’s social, cultural economic development objectives and to raise the glorious name of the country without damaging social and moral ethics”.

The journalists or the writers with separatist agendas seek to destabilize the present regime and replace it with a puppet regime in order to achieve their sinister objectives.

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. 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'

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.’