No quorum, so no forum

By Dilrukshi Handunnetti

Parliament has not debated the Auditor General's reports for 12 consecutive years although they were ritualistically presented to the House, an authoritative source said.

With the disclosure, it has been alleged that the UNP in its final six years and the PA administration in its first term have not attempted to take up the vital reports for debate, which amounted to subverting the role of Parliament as the custodian of public finance.

It is learned that over 20 reports that should be essentially discussed by the committee on public finance have not been taken up for discussion at any level whereby Parliament has neglected its duty. Each report includes between 25-35 audit reports on government institutions.

It is alleged the committee has failed to meet regularly and evaluate the reports due to insufficient quorum. Despite the committee consisting of 14 members, the required quorum is four parliamentarians, and the legitimate question is why the committee could not get four legislators to meet.

Local polls system for review

The Government is to review the local government electoral system before the forthcoming local government polls to be held in March.

A committee comprising senior ministers was appointed by President Chandrika Kumaratunga last week to study the system and make recommendations for improving it.

The Committee which is headed by PA General Secretary D M Jayaratne is to submit a report by next month.

The committee is to look into the preferential voting system.

Silver medal for Minelle

MTV's news reporter Minelle Fernandez won the Silver medal at the prestigious United Nations Correspondents Association (UNCA) Millennium awards.

The Silver medal was awarded for a news story on "Landmines in Sri Lanka-the Human Cost." The report was compiled by the news gathering team comprising Minelle Fernandez, Cameraman Champika Wijesinghe and Assistant Cameraman W. Wimalasiri.

Minelle Fernandez accepted the award from UN's General Secretary Kofi Annan, at an award ceremony held in New York on October 23. The international acknowledgment of the award is for investigative risk taking journalism.

Phone-in: Whose responsibility is it?

By J.C. Weliamuna

"Phone-in-programmes" were introduced first in Sri Lanka by the Educational Service of the Sri Lanka Broadcasting Corporation in 1992 with Tilak Jayaratne, the electronic media veteran training a group of young journalists and introducing non-formal educational programmes with a phone in component for the benefit of the public.

These programmes were limited to the New Education Service, which service in fact introduced many far reaching formats in broadcasting. The idea was to facilitate the public to participate in discussions and debated on matters of public importance. These programmes became popular among the common people and were even tolerated by politicians though criticized.

In August 1994, the PA Government came to power and the New Education Service was stopped abruptly on 6th February 1995, soon after a Minister was criticized by a participatory listener.

Mr. Janadasa Peiris, the then Director General of the SLBC issued administrative circulars on 18-2-1995 bringing in all Education Service staff directly under him and directing that songs be played in the scheduled time for non-formal programmes which contained phone-in programmes. This was the first time a "phone-in-programme" was stopped in this country; of course without any valid reason but to please the politicians.

However, a participatory listener Wimal Fernando in a Fundamental Rights case successfully challenged this decision in the Supreme Court where in a classic decision on the subject, Justice Mark Fernando (1996) 1 Sri Lanka Law Report at pg. 157) decided that freedom of speech guaranteed to the participatory listener were violated by the decision of the SLBC to stop the non-formal educational programmes.

Similar programmes were later introduced in many private channels of both the radio and television. The Lakhanda programme on which the presently impugned conversation took place is one of these later programmes. The youth was arrested on 20-11-2000 apparently for abusing the President and allegedly defaming her through the Lakhanda channel. Whose responsibility was it to prevent such abuses?

In this instance, a clear parallel could be drawn from print media. If a participatory reader (e.g. a writer in a letters to the editor page) defames a person, both the media institution, the editor and the writer could be held responsible under our criminal and civil law.

As has been demonstrated in the many instances of criminal defamation suits filed against editors in this country in the recent past, editors are, in fact, held to be primarily responsible.

Why is it then only Gunathilake was taken to task in this instance, leaving the Lakhanda service of the SLBS and other officials free from blame? Should the electronic media be distinguished from print media on the question of responsibility? Should the law be selectively applied in this manner?

Judging from the comments made in both print and electronic media during the past few days, the public has been made to believe that the Lakhanda channel was facilitating the phone in programme effectively but this youth has taken the air time to abuse the President misusing the phone in methodology.

That this is a misconception is clearly evident as would be pointed out by those who work these programmes and who are aware that there are "delay equipment in telephones" specifically meant to be used in phone in programmes where the telephone reception for a period of approximately one minutes before the transmission in air could be delayed.

This is a filtering process that is often used to avoid persons using abusive language or filth over air.

Prior to transmission, the technical or editorial personnel could view such telephone calls, if this equipment is used in any phone-in programme. These equipment are not expensive and are commonly used in other countries.

Whether Lakhanda channel is presently utilising this equipment is not known to the public but the radio channel undoubtedly has a duty and a responsibility in the present case which has been completely bypassed.

Warning ring for 'phone -in -shows'

The easy use of criminal defamation laws by the police against all and sundry, sane and apparently insane has reached new heights with the arrest of a computer student this week for allegedly insulting the President over a live programme broadcast over Lakhanda.

The arrest has raised many questions, the gravest of which relate to the impunity with which police appear to feel free to act in the issue of invoking the criminal law in all instances, regardless of whether recourse to the penal law is actually justified and without the need for any citizen, whether holding high office or not, to actually lodge a complaint with the police that he or she has been defamed.

The use of criminal defamation law only for persons holding high public office is, of course, a matter that has been subjected to much critical comment in recent times.

That criminal defamation could be available only where publication was likely to provoke a breach of the peace has now been effectively displaced in law but the condition that it should be sufficiently serious to justify, in the public interest, the institution of criminal proceedings remains.

While one can have no doubt that all citizens in this country, including the President have the right not to be abused in public, the question is whether immediate recourse to criminal provisions is warranted in all these cases.

In addition, the criminal procedure law lays down certain inflexible safeguards to be observed whenever criminal defamation provisions are invoked.

Thus, Section 135(1) of the said CPC states that ".any court shall not take cognizance of (f)..any offence falling under Chapter XIX of the Penal Code unless upon such complaint made with the previous sanction of the Attorney General." Section 135(4) of the CPC provides that such sanction shall not remain in force for more than six months" and Section 135(6) gives the Attorney General the power to file any indictment direct to the High Court under Section 393(7). These provisions have been specifically laid down by the CPC in order to prevent the frivolous use of the provisions of criminal defamation in the Penal Code.

Additionally Section 393 (5) (b) mandates that the superintendant or the ASP in charge of any division shall report to the Attorney General any offence committed within the area where.the consent of the Attorney General is required for the institution of proceedings. Section 07 and schedule 11 of the Mediation Board Act No 72 of 1988 which prescribes that defamation under Section 480 of the Penal Code is an offence where the certificate of the Mediation Board is necessary for a Magistrate to inquire into the offence.

It is respectfully submitted that the prescribed procedure above cannot be departed from in any circumstance, whatever external pressure is brought to bear on a particular case. The question here is whether all these safeguards have been observed in the instant case.

This analysis will not deal directly with the factual content of what was allegedly said, which is presently before the Magistrate's Court except to say that public attention has been focussed on the incident only in a negative manner amidst a general perception that he was insane while the frightening precedent that the arrest set was bypassed.

Given the present popularity of these live phone in shows on radio and television, this whole sequence of events poses definite warnings for the future.

With this most recent instance of arrest for criminal defamation, we undoubtedly join the ranks of other countries where the use of personal abuse provisions under the ordinary law or Emergency have been varied and severe and for a variety of totally frivolous reasons besides being directed at both the media and citizens.

Thus, in Romania, an editor and reporter from the daily Telegraf were found guilty of insult under Section 205 for having published an article alleging that local politicians were guilty of corruption in July 1996.

They were both sentenced to seven months imprisonment, ordered to pay fines and were banned as working from journalists for one year. Journalists have been convicted for a variety of offences including making allegations that President Iliescu was morally responsible for deaths during the 1989 uprising, for placing a dog behind the nameplate of a police chief on a television programme the police chief had declined to appear on and for the publication of an article claiming that some judges and prosecutors were fulfilling their duties improperly.

Then again, in Poland, the Penal Code includes a number of defamation related offences, including defamation of state symbols, legal persons, public functionaries and their assistants as well as defamation of "groups" and carries a penalty of deprivation of liberty for up to two years. Article 237 from the old Penal Code of the country which proscribes insults to a "state organ or a political organisation, a trade union, an association of higher public utility or social organisation of nation wide importance" has resulted in conviction of 34 individuals in 1993, 22 in 1994 and 19 in 1995.

International NGO's monitoring the use of libel laws around the world have pointed out that cases are brought against citizens or the media on trivialities when less harsh forms of discipline would suffice. Their warnings of the manner in which frequent and easy use of these laws erodes the capacity of the people in a particular country to exercise their freedom of speech and expression stand as being very relevant for Sri Lanka right now.

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