14th May 2000
Resolving social conflicts that affect the law and order situation are easier, like in any problem, if we first determine the cause of the problem. Once the cause is known, the solution simply lies in eliminating the cause. In the case of social conflicts, public approval is essential to bring about lasting solutions. To arrive at solutions with public approval we have to tap public opinion formed after public discussion of all available information relevant to the conflict.
If we become blind to the truth or fail to harness well considered public opinion, we will only deprive ourselves of an opportunity to resolve the conflict. A seeming success driven by expediency, whether it be political or communal, will not stand the test of time.
Solutions to social conflicts may not easily manifest at the start. Deliberations have to be made, often in retrospect as well, and on additional information gathered as we go along. As for the Police, debriefings are held from time to time during, and even after completion, of major undertakings, and ideas for better performance with the advantage of hindsight, are placed on record for future progress. Steps taken with the best of intentions and with due care and precaution can turn disadvantageous due to unforeseen circumstances when plans have to be changed in the light of new revelations. All that is part of the game
A major problem that confronts us at times is when 'know-all' types in top positions try to knavishly hold on to their own plans, discouraging frank discussions, and become stumbling blocks in endeavours to resolve social conflicts. Such subjective attitudes are born of a complex developing from fear of criticism.
In fact unfair and destructive criticism is rampant in this country especially in the political scene. It is through public discussion that the chaff can be sifted from the corn. It is important that the inflow of information, discussion and constructive criticism, essential for objective evaluation and progress in the right direction, are not blocked. It goes without saying that secret matters concerning the strategy of a current war, should not be divulged in public.
But if for subjective reasons we take cover under the Public Security Act, and prevent discussions even with specialists, which discussions can be useful to successful achievements in specialised fields, it will not only be unreasonable but unlawful as well, and will seriously endanger national security.
Unlawful attempts to subvert the will of the people, as well as attempts to mislead the people, whatever source they emanate from, should not be allowed to go unchallenged. We should take an example from South Africa. There, it was not that the leaders by themselves who found a solution. It was public opinion built on public discussion that paved the way to a peaceful solution.
In the present context in this country, it is hoped that the Competent Authority will act wisely without letting the 'complex virus' infect him, and that he will not censor matters that can be useful to arrive at a just and fair solution with public participation, so that law and order will prevail once again and pave the way for reconciliation soon.
A profound sense of outrage
By: Kishali Pinto Jayawardene
Granted, the Competent Authority appointed to examine all news percolating to unfortunates living in this land, is an amiable man. Quite possibly, he may even be an honourable man. Nonetheless, one is regrettably compelled to put into issue certain fundamental misapprehensions that this amiable and possibly honourable man together with subordinates operating under him, appear to be labouring under. Let us examine some of these misapprehensions for purposes of discussion.
The first principle in a country facing a situation of extraordinary emergency is that some restraints on the freedom of information are justified. I say this with the justifiable fear that all sentences prior to and succeeding the later sentence may be blacked out so as to provide the public with the questionable wisdom of this latter sentence alone but I say this regardless because it is a truth that needs to be acknowledged. Proceeding from this first principle however, there are important qualifications.
As was pointed out last week in this largely blacked out column, the Emergency Regulations imposed on the people this month, have impacted most dramatically on the media.
They operate in addition to restrictions imposed by an earlier regulation dealing specifically with the press and prohibiting any statement pertaining to the official conduct, "moral" or the performance of the Head or of any member of the armed forces or the police forces etc or of "any person authorised by the Commander in Chief of the armed forces for the purposes of rendering assistance in the preservation of national security.
This earlier regulation however left room for the media to report on procurement of supplies and was primarily war related, though framed in unwarrantedly broad terms.
In the present case, "broad" would be a definite misnomer for the sweeping terms of the material categorised as prohibited under this month's Regulations. All material prejudicial to the interests of national security, preservation of public order, maintenance of supplies and services essential to the life of the community, inciting or encouraging people to riot, mutiny or civil commotion or to commit breach of the peace have been prohibited.
A continuing illogicality appears to be however that though the new regulations ban the publishing of any information relating to a proscribed organisation, the LTTE does not come within this definition, as it has yet not been proscribed. Reports relating to the LTTE are however red-penciled on the broader grounds of national security.
This then, is the law. What of its implementation during the past two weeks since the Regulation was promulgated? Thus it is that we are now witnessing the censoring of news copy with not even the remotest connection to national security but with a definite purpose of legitimately questioning the action of the Government in imposing such an omnibus censorship in this present context. The implementation of the Regulations have also been made even more stringent this Friday by the banning of all live broadcasts of television and radio programmes. The BBC Sandeshaya programme and its Tamil version have been banned as well. Warning letters have been sent to newspapers who have disobeyed the injunction to send all copy to the Competent Authority.
Which brings us to the point raised at the outset of this column. Can indeed, such a drastic blacking out of news, that must be surely without parallel even when contrasted with the '88-'89 era when similar regulations were imposed in a context qualitatively different to the present, be justified in truth?
This, of course, is only a rhetorical question. It is clear that on the Constitution itself, such a flagrant censoring of information cannot and should not be tolerated.
While the Constitution does give the executive the power to make emergency regulations restricting the right to free speech in the interests of national security or public order, this authority is not unlimited.
Neither can it be used in an unlimited manner. In the first instance, as a necessary consequence of Article 155 (2) of the Constitution, which places a limitation on the President to make regulations inconsistent with fundamental rights, all regulations made by virtue of emergency powers bestowed on the President must be intra vires regulations.
In the second instance and most importantly in the present context, action taken under such regulations must show a proximate or reasonable connection between the nature of the speech prohibited and the ground on which it is prohibited.
Any indirect or farfetched connection between the two would make such action under the regulation invalid, as has been held on numerous occasions by the Supreme Court of this country.
Thus, it is very evident that information that must legitimately be placed in the public domain has to be so placed. By not doing so, we are violating not only our Constitution but fundamental principles of international law by which we are bound, even though our policy makers and nation leaders seem to take them so very lightly.
These principles mandate that restrictions on basic rights in times of emergency may be imposed only to the extent strictly required by the exigencies of the situation. These principles state also that copy cannot be censored to protect interests unrelated to national security, including for example, to protect a government from embarrassment or exposure of wrongdoing or to conceal information or to entrench a particular ideology. Going by this reasoning, cuts by the censor of copy critiquing the censorship itself, copy where factual information is altered, copy regarding civilian casualties, copy regarding conditions of the displaced, food shortages etc. and copy concerning the publication of information already well known to the general public would be illegitimate.
In the latter case, it could well be said that once information has been made public, any justification for trying to stop further publication will be overridden by the public's right to know, except where it is convincingly established that the circulation of information is very limited and further dissemination poses a serious threat to a legitimate security interest.
And time defeating procedures such as the appointing of an Advisory Board to which the media is given a right of appeal after their copy is blacked out, does not lessen this sense of outrage.
Meanwhile, it has been reported that the Competent Authority has appointed ten sub- censors under him to "help him" in this work. The question then immediately becomes as to who are these sub-censors, under which provision of the law have they been appointed and what substantive part does the Competent Authority play in supervision of such delegated work? The question is vital for this purpose.
The press and the people have a right to question the identity, persona and experience of these sub-censors. The press have a right to question whether the news that they disseminate is censored fairly and correctly under the Regulations while the people have the right to ask whether restrictions on their right to know are being imposed with deliberation and with due thought.
Ultimately, what is apparent is very simply this.
If the current practices of censorship in Sri Lanka continue in this manner, then all those living in this country and submitting to this horrendous steam-rolling of our Constitutional guarantees without protest, must realise that we have forfeited our basic democratic right to know. We have indeed forfeited this right to an extent that is compatible with restrictions imposed by martial law. And in so accepting, we will also have to resign ourselves to the consequent implications visited upon Sri Lanka as a pariah state in the eyes of the world.
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