Sri Lanka politics, law and the media Kishali Pinto-Jayawardena

Nov 12, 2015

Ghosts of governments past
Kishali Pinto-Jayawardena reflects on the alarming trends of media
suppression in Sri Lanka, and the challenges that must be faced to bring
about change.
For much of post-independent Sri Lanka, State violence has shaped and
defined the parameters of human existence. Particularly in recent decades,
coercion was exercised on the media through the shadowy tentacles of a
deep security State.
A death chant for democracy
The impact therein has been crippling. Five years ago, in a column
appropriately titled A Death Chant for Democracy (Sunday Times,

September 12, 2010), I asked this question: When liberties are taken away
and when democratic institutions die, is it even worse than human beings
dying?
So many of us were forced to put up with the subordination of the human
spirit as civil liberties were violated and the law became irrelevant to
victims. Is there anything worse than a lawyer who faces a court to argue
constitutional rights, knowing from the outset that the effort is futile? And
how pitiable is the plight of a journalist forced to write half-truths or outright
lies in order simply to stay alive?
This is the reality that faced many Sri Lankans every day during the past
several years. And even as we apparently emerge from the abyss today,
with presidential and parliamentary polls stamping a rejection of the
decade-long Rajapaksa rule, these searing memories stay with us.
Acknowledging an institutional crisis
Sri Lanka is currently facing a profound institutional crisis, of which the
functioning of the media is but a part. This is not limited to a particular
political regime or a specific president. Instead, the problems are systemic.
For example, the media had been on the frontlines of government attack
much earlier than the past decade. The law itself played a deeply
subversive role in this process. Sri Lankas media had often been engaged
in abrasive legal tangles with the political establishment. Soon after the first
Republican Constitution was enacted in 1972 with the aim of casting away
colonial fetters, one of the exceedingly bitter disputes of that period arose
over the Press Council law.

POGROM: Black July was one of the bloody markers of UNP rule

This law was mischievous in its intent, appointing a government constituted

Council to supervise and, as some rightly said, to commandeer the press.
Section 16(1) and (2) of the Law prohibited the publication of Cabinet
decisions and Cabinet documents; the latter was permitted only under very
restrictive circumstances. These provisions were arbitrary and restrictive.
They offended the overriding principle that government decision-making
should be subject to the right to know, except where there is an immediate
and obvious danger to the security of the State. Even then, restrictions
imposed must be proportionate to the threat envisaged. Additionally,
Section 16(3) of the Press Council law made it an offence for any newspaper
to publish an official secret as defined in the Official Secrets Act of 1955.
The precise definition of what constitutes an official secret was, however.
archaic and vague.
Taming the judiciary over the Press Council law
Faced with the Bill, a spirited Constitutional Court clashed with the
legislature when time bound fetters were sought to be imposed by
politicians upon judges in deciding the matter. The Court pointed out that it
is the judges and judges alone who have the duty of interpreting the
Constitution. To fetter that duty would mean an abdication of the judicial
function, it was declared.
But the balance of power ultimately tilted towards the politicians. Angered
by what they saw as an affront to their powers, the legislature reacted
adversely. The entire Court resigned and more pliant judges were
appointed. Later, the Press Council law was ruled to be constitutional by the
new Court in submissively respectful thinking. Predictably, the Press Council
performed exceptionally badly in the years that followed, staffed by
loyalists of government and exercising a covertly threatening power over
the media

MURDER MYSTERY: The killing of journalist and playwright Richard

de Zoysa remains unsolved

That was in 1973. Regardless of lessons learnt, however, during the many
decades in-between, President Maithripala Sirisena reappointed members
to the Press Council a few months ago, raising unsettling ghosts of
governments past. This illustrates the unfortunate nexus between the past
and the present and the reluctance of politicianshowever much they
may spout on media freedoms during election campaignsto practically
realise their promises once in power.
Pivotal warnings from the past
And there are further warnings. When Chandrika Bandaranaike
Kumaratunga took over the reins of presidential office at the helm of the
Peoples Alliance party in 1994, an outpouring of joy, in similar if not greater
measure as in 2015, was evidenced. The media was among the forces
bringing Kumaratunga to power amidst the overthrowing of sixteen years of
authoritarian rule under Sri Lankas other main party, the United National
Party (UNP).
UNP rule had been characterised by bloody markers including the massacre
of Tamil civilians in the Black July riots of 1983. Counter-terror tactics
employed against both the northern-based Liberation Tigers of Tamil Eelam
(LTTE) and southern insurrectionists, the Janatha Vimukthi Peramuna (JVP),
included the infamous killing of journalist and playwright Richard de Zoysa,
which still remains unsolved.
Yet just a short period after Kumaratunga came into power, the state media
was transformed into a propaganda organ. Censorship and criminal
defamation were used to muzzle the private media. Editors had to face a
steady stream of criminal defamation indictments with the courts taking
contrary and sometimes confusing views to fundamental questions such as
the protection of sources. Compelled by increased pressure, the media
came together in a rare display of unity and achieved the abolition of
criminal defamation from the statute books. But this was just one isolated
success story.
Under Kumaratungas successor, Mahinda Rajapaksa the suppression of the
media was taken to unprecedented levels. But it must not be forgotten that
this was a continuation (in its worst possible form) of what had transpired
previously.
In 2015, we do not need to engage in death chants for democracy. But
reversing the systemic repression of the Sri Lankan media on the part of
both major political parties remains a formidable challenge. Similar to post1994, we see the new government reacting defensively to media criticism,
including using parliamentary privilege to stifle public discussion of alleged
government corruption. To some extent, however, there is political will to

ensure media reform. This October, the government has promised to table a
Right to Information Bill drafted by an experts committee in conformity with
international best practice. There is talk of an independent Broadcasting
Authority. Where the state media is concerned, there is notably more
balance in political coverage, through structured reform is still pending.
Inward reflection needed on part of the media
Meanwhile, the media itself needs to look inwards. The past decade has
seen the best and worst of Sri Lankan journalism. On the one hand,
journalists literally took their lives into their hands as they braved a deep
security State to expose violations of life and entrenched corruption. On the
other hand, this was also the era of embedded journalism, where vicious
attacks were carried out by state and private media journalists on their own
colleagues who had incurred the ire of the ruling regime
Others turned away when the countrys minorities were targeted. Constant
attacks on Tamil media in the northern peninsula were downplayed in some
national newspapers. Just last year, as militant Buddhist monks incited
communal tensions in the picturesque seaside town of Alutgama, houses of
both Muslims and Sinhalese were burnt in the ensuing violence. But some
national newspapers published only the burnt houses of the Sinhalese while
omitting to mention the damage caused to the Muslims. Certainly these are
unforgivable transgressions of journalistic ethics.
But when all is said and done, this is a country where journalists have laid
down their lives for speaking the truth. That sacrifice is unmatched. Even in
the midst of difficult struggles to rejuvenate the countrys media culture,
this fact must not be lost sight of. n
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