:pushing for 13th Amendment
The archaic criminal defamation law - sel dom if ever used in modern democratic societies - and the Press Council Law has come under widespread public criticism and scrutiny following last Tuesday's conviction of The Sunday Times Editor, Sinha Ratnatunga, on charges of criminally defaming President Kumaratunga in an article on February 19, 1995.
As the battle raged, in court and out - the latest being the hullabaloo over a garland - some legal observers also noted a subtle irony in the political twist and turn of this defamation case or controversy.
Hardline state prosecutor Rienzie Arsecularatne, portraying the image of President Kumaratunga, ironically quoted her arch rival R. Premadasa who days before his assassination had said, "Assassinate me, but don't assassinate my character."
The editor was found guilty on two counts - under the Penal Code and the Press Council Law.
The sentencing provision in the Penal Code states:
"Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years or with fine or both."
The Sri Lanka Press Council Law states:
"15. (1) Every person who publishes, or causes the publication of, in any newspaper -
(a) any profane matter; or
(b) any statement or matter concerning a person which will amount to defamation of such person within the meaning of Section 479 of the Penal Code; or
(c) any advertisement which is calculated to injur public morality; or
(d) any indecent or obscene statement or matter,
shall be guilty of an offence and shall, upon conviction, be liable to be punished with a fine not exceeding five thousand rupees, or with imprisonment of either description for a term not exceeding two years or with both such fine and imprisonment."
Delivering the judgment the High Court Judge Upali de Z. Gunawardena said:
"As stated in Gour the conduct of an accused person subsequent to the publication of the libel and even during the trial may be taken into consideration by the court in deciding on the sentence. The learned Deputy Solicitor General dwelt at length on this aspect. The learned DSG pressed for a custodial sentence. But I prefer to leave out of consideration such conduct in the accused's own interest and for his own benefit, for the moving words of Portia which has become justly celebrated, were not in age but for all time.
'The quality of mercy is not strain'd
It dropeth as the gentle rain from heaven....
It is twice blest.
It bleseth him that gives and him that takes
and earthly power doth him show
likest God's when mercy seasons justice'."
After the judgment, many top journalists and human rights' activists said criminal defamation laws should not be used to muzzle the media. Such laws were outdated and many countries have done away with them, they said.
It was about one year ago that a committee appointed by the People's Alliance government recommended the abolition of such outdated laws.
In the first response from abroad veteran Sri Lankan journalist and Brunei Newspaper Editor Rex de Silva faxed Mr. Ratnatunga saying he was shocked by the use of criminal defamation laws to muzzle journalists at a time when the winds of freedom were sweeping the world over.
"I don't think this will in anyway blunt your pen and dry up the ink or cause a 'hang' on the motherboard. There is always a positive streak. For on this day when Hong Kong is having a freedom hangover after the handover, you have found yourselves to be a newsworthy - 'lion' hitting the headlines competing with Tung and his dragons," said Mr. De Silva who was one time Editor of the 'Sun' and 'Weekend' where Mr. Ratnatunga had launched his career in journalism.
International Bar Association President Desmond Fernando said: "It is shocking. I believe it was wrong to try the Editor on criminal defamation laws. In the short term this will affect media freedom but I hope journalists will fight it."
This case of criminal defamation arose over a gossip column item in The Sunday Times of February 19, 1995 relating to the President's presence at a midnight party in a Colombo five-star hotel.
It seems the government is using obsolete criminal defamation laws as a weapon against freedom of expression. It probably feels this is an easy way to muzzle the media. But ultimately democracy will suffer and the people will be the losers. Perhaps government members will realize their folly when they someday sooner or later are relegated to the opposition benches.
At the same time the government is using the state media in a more blatant way than other regimes did to propagate its ideas.
The incident where Desmond Fernando garlanded the Editor was blown out of proportion in the state run Daily News, the SLBC and the Rupavahini. They sought comments from others but at least one such move has misfired. Senior Attorney R.K.W. Gunasekera could not believe his eyes when he saw what was attributed to him in the Daily News of Thursday.
It was true that the Daily News contacted him, but he says he never uttered what was attributed to him in the Daily News, Mr. Gunasekera told one of his juniors in court.
The Daily News quoted a lawyer from Homagama as saying that he wouldn't be surprised if in the future a convicted gangster or murderer or rapist was garlanded in the precincts of court. This unnamed lawyer needs to be made aware that the Editor did not fall into any of those categories.
On the contrary, the Editor was indicted on a technical point of law. He was indicted as he bears the overall responsibility as the Editor of the newspaper. The major question now is whether the PA government is really for a free media as it solemnly pledged in its election manifesto.
Therefore the garlanding of the Editor was a symbolic gesture to honour him as a champion of the free media, rather than to dishonour any other person or institution.
On the day of the judgment many government and opposition political figures were seen at the court compound. Among them were Deputy Ministers Reggie Ranatunga, Anura Yapa, Janaka Tennakoon and Parliamentarians Anura Bandaranaike, Ravi Karunanayake, Dr. Rajitha Senaratne, Dr. Jayalath Jayawardena and Pradeep Hapangama.
Soon after the Judge announced that the Editor was guilty on both counts, most of the government MPs and others, including the President's Coordinating Secretary Lasantha Alagiyawanna left.
By Thursday a new development took place at Hulftsdorp when Rupavahini cameramen carrying their equipment were seen going behind lawyers to get comments on the judgment and the subsequent garlanding of the Editor. The man behind the scene was a young lawyer who was a freelance penpusher some time ago. He was instrumental in getting a number of other lawyers to condemn Mr. Fernando's act though some lawyers said they felt the Editor deserved not one but two garlands.
Away from the Hulftsdorp drama, the main topic in government circles was the political package and how it should be pushed through Parliament.
Tamil parties think that the government would present the package in Parliament within the next two months probably before the budget, but to get the required majority the government would have to talk to the UNP. At this juncture it is evident the UNP is trying to dodge the issue. The President has indicated she has an alternative plan but was not prepared to divulge it. It could be the non-binding referendum by which the government is apparently trying to corner the UNP.
It is obvious that the government could win a referendum since the UNP is not in a position to offer much opposition to this since it agrees on devolution as a matter of principle. On the other hand, the UNP is badly off as far as the finances are concerned to go on campaigning around the country. If the UNP uses all its resources to oppose the non-binding referendum, it would find it difficult to face another election.
In the circumstances, it is likely that the government could go through the referendum and put the UNP in an embarrassing position, if the people approve the devolution package by a majority.
So the UNP would now have to seriously consider the implications of such a referendum.
Some Tamil parties think that the package is like birds in the bush. They tend to compare the proposed political package and what is already granted by the UNP government under the 13th Amendment to the Constitution. Particularly, the EPDP is of the opinion that the 13th Amendment is the "bird in the hand" and its thinking is that the government is in a position to implement the provisions in the 13th Amendment more easily than going through the political package.
The Tamil point of view appears to be that even the Sri Lanka Muslim Congress has accepted the 13th Amendment and a temporary merged North and East where there is no special provision granted for the Muslims.
In their view, if the government talks about a package at this stage and wants to implement it, the Muslim factor will have to be taken into serious consideration, and a Muslim Council granted to strike a balance in the Eastern Province. But the recent SLMC statement that even not contiguous areas in the North and the East should come under the Muslim Council, has further confused matters.
However the EPDP's push for the 13th Amendment has disturbed the government. Some government leaders feel the UNP and also some elements in New Delhi are behind the EPDP's proposals.
This was evident when Minister G.L. Peiris criticised the 13th Amendment to the Constitution when he delivered the P. Navaratnarajah memorial lecture at the BMICH last week.
Dr. Peiris called the 13th Amendment and the Provincial Council mechanism it created a sham, an attempt at deception, an insincere exercise that had bred cynicism among the Tamil people and the one that had caused immense damage to ethnic relations.
"We will not be a party to that. We will not resurrect the Provincial Councils. We will not be a party to that deception," he said.
He said President Kumaratunga and he were risking their lives not to be something that is not genuine but to do something that would put an end to the sufferings of the people and place the country on the path of development.
The 13th Amendment was a response to foreign pressures. It was not a genuine attempt to share power with the people, said Dr. Peiris.
"What was given with one hand was taken away with impunity by the other," he said.
The concurrent list and the handing over of the power to do anything under national policy were designed to scuttle the devolution exercise.
He cited the Agrarian Services Act and Transport Commission Law as two clear instances where powers devolved to the Provincial Councils was arrogated by the central government.
After having come out with a scathing attack on the 13th Amendment, Minister Peiris did not forget to call EPDP leader Douglas Devananda and tell him not to get excited about what he said at the Navaratnarajah memorial oration.
But now it appears the EPDP has strained relations with the government, specially after the police questioned Douglas Devananda on a directive by the President. The President made this move after the two rebel MPs of the EPDP met her to discuss injustices caused to them.
After hearing their case, the President called Police Chief W.B. Rajaguru and told him to investigate the matter. Though little came of it, Mr. Devananda appears to be perturbed over the government's attitude towards the EPDP.
Now Mr. Devananda feels that UNP is a better party to deal with than the PA. He has told friends that it was much easier to work with the UNP than the PA. At the same time Mr. Devananda who is a member of an official committee coordinating work for the 50th Independence Day celebrations next year has written to the President saying the Tamils who have been victimised in the North East would have little to celebrate.
Some TULF leaders are also not happy that Neelan Thiruchelvam and TULF MP Thangathurai are serving on the Independence Day Committee because they feel that the government has failed to meet the aspirations made by the Tamils in a reasonable manner. However there is a move by the Tamil parties at this juncture to pressurise the government to hold Provincial Council elections in the North East. Elections are due by March next year.
The Tamil parties are likely to put forward certain conditions which would include the merger of the North and the East and proper devolution as stated in the 13th Amendment to the Constitution.
The government, though it acted differently when the EPDP called for the implementation of the 13th Amendment, is likely to succumb to the demand by the Tamil parties to hold elections for Provincial Councils next year.
In another interesting development, Minister Peiris hosted journalists from the national media to cocktails that had a tailpiece. The get-together, the day after The Sunday Times-CBK case judgment naturally produced comments for and against what happened. Some reactions were predictable. The surprising reaction was from Ravaya Editor who came out strongly against the government for indicting The Sunday Times Editor under criminal defamation laws after it gave a solemn pledge to do away with such obsolete laws which threaten the free media. The journalists were uncertain about why they had been invited for the cocktails. But they got the message at last when they received a well wrapped small packet at the end of the party. Some journalists wondered whether it was a bottle of whisky or a shirt while others thought that it could be a directory issued by the Ministry of Posts, Telecommunications and Media.
Some journalists were in a hurry to open the packet. When the packets were opened, the journalists found that it was a copy of the draft constitution and the proposed devolution package.
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