Focus on Rights

Censorship: for whose benefit?

By: Kishali Pinto Jayawardene

The exchange of letters between the Sunday Leader and the Competent Authority late last month over reporting of the purchase of jamming equipment and alleged violating of financial regulations therein by Army Commander Lionel Balagalle, is a classic example of censorship at its most crude. It is indeed, instances like these that expose best the desperate nudity of government protestations in court and elsewhere that emergency regulations imposing censorship have been imposed for the good of the country. Equally, its argument that it is, in fact, the media which is at fault for attempting to overstep the boundaries of reporting news in a conflict situation.

Competent Authority Ariya Rubesinghe's ire had been aroused by the publication in the Leader of letters written by former Chief of Staff Janaka Perera charging the Army Commander Lionel Balagalle of violating financial regulations on procurement in addition to payments made to a middleman.

The allegations were in relation to the purchase of jamming equipment for the military. The story was first reported in The Sunday Times, appropriately enough under the heading of "money for jam" and then expanded upon a week later.

Interestingly, the following week, the Sunday Observer also devoted no less than front page space for the same story. But it was the publication of captivatingly hard hitting letters by former Chief of Staff Janaka Perera on this dispute in The Sunday Leader just the week after that led to the Competent Authority writing to the newspaper. According to his letter, the article in question " is considered to be an attempt to ridicule senior military officials thereby creating dissension in the security forces", thus contravening the emergency regulations relating to censorship. Mr Rubesinghe's somewhat convoluted accusation deserves further examination for specific and very interesting reasons.

In the first instance, his letter to the Sunday Leader is not under the Emergency Regulations of July 1st 2000, which regulations replaced the disastrous May 2000 regulations under which two newspapers were banned and a censorship gone mad was imposed on the media last year. Instead and quite inexplicably, Mr Rubesinghe states that he is invoking the provisions of Emergency Regulation No 1 of 1998 as amended by Gazette Extraordinary of 6th November, 1999. Two questions then immediately become relevant. Is Mr Rubesinghe invoking an expired Emergency regulation in pursuit of his attempts to censor the media? Or has the July 2000 Regulation been revoked and have we reverted to 1998/1999?

To the best of the knowledge of this writer, the July 2000 regulation has not been withdrawn as of date. Perhaps, the collective media and the public whose right to know is fundamentally affected by this kind of chaotic censorship should be told exactly what the correct position is in this regard.

Indeed, the mistake, if indeed a mistake has been made by Mr Ariya Rubesinghe and his legal advisors is particularly colourful in another respect. The 1998/1999 regulations under which he chooses to act, does not specifically forbid the media to report on "procurement of supplies."

This was indeed a victory won by the media in 1998 reversing previous prohibitions in respect of this in 1996 after strong lobbying that the prohibition prevented the media from effectively reporting on corruption in procurement of arms and supplies. The 1998/1999 regulations therefore did not contain this prohibition.

But faced as it was by an adamant media last year, an angered government thought it fit to reintroduce this prohibition in the July Regulations of 2000. Mr Rubesinghe, as pointed out earlier has, however chastised the Sunday Leader under the 1998/1999 regulations and not the July 2000 regulations, thus making his objection even more obnoxious and clearly contrary to the intended object of that particular regulation.

The 1998/1999 regulations, in fact, were exhaustively examined by the Supreme Court in early 2000 when human rights activist Sunila Abeysekera petitioned the Court on the basis that the regulation violated her constitutionally protected right to freedom of speech and expression, her right to equality before the law and her right to freedom of thought. One specific line of attack was that the regulation in question aimed not to protect national security but rather to prohibit the publication of information embarrassing to the government.

She contended that as a result of the said Regulation, she was prevented from forming and communicating information on matters of public debate which are of vital concern to the nation.

The court, historically reluctant as it has been to strike down an entire regulation on its substance unless it is arbitrary to the point of being perverse, did not uphold her argument. Nevertheless, the judgement by A.R.B. Amerasinghe J. (with Wadugodapitiya J. and Weerasekera J.) went on to state importantly that while the preservation of the morale of the armed forces is an important matter, yet, in a democracy, freedom of speech performs a vital role in keeping in check persons holding public office. Accordingly, restrictions imposed on publications which refer to the activities of public authorities should be applied particularly strictly.

It was indeed, in this context that the Court restricted the ambit of the application of the 1998/1999 regulation to the conduct of the persons named therein such as the Head, any member of the Armed Forces, Police and so on with regard strictly to "their activities in the North and the East" and not in other parts of the country even though the Regulation itself did not say so in so many words. In any event, it is quite clear that reporting on alleged corruption in the procurement of supplies would not have been considered even by a most cautious court to be covered by this regulation.

The question however is fundamentally wider. Could this kind of investigative reporting be shut out even under the July 2000 Regulations which includes procurement of supplies in the prohibited categories?

In the cases that were filed by editors of ten national newspapers before the Supreme Court last year challenging the May 2000 censorship regulations, the Bench consisting of Chief Justice Sarath N. Silva with Justices Wadugodapitiya and Weerasekera appeared to think not, though a considered judgment on the matters in issue was not delivered as the cases were overtaken by events following the banning of The Sunday Leader.

It is relevant also in this respect that the Human Rights Commission, issuing comments on the July regulations point out specifically that the restrictions on material pertaining to top procurement of weapons and statements on the performance of the armed forces should be formulated in a manner that does not preclude the media from raising issues of public accountability that are in the national interest.

The Commission stressed the need for professionalism and meticulous detail in drafting emergency regulations that supersede normal laws.

Meanwhile, it is now manifest that the Competent Authority is in grave breach of his guarantees to Court in the cases filed by the editors, that guidelines would be drafted in consultation with the editors for a smooth working of the censorship regulation.

It was precisely to prevent disputes of the nature, which have now arisen over the publication of the exchange of letters between former Chief of Staff Janaka Perera and Army Commander Lionel Balagalle that such guidelines were directed to be drafted.

What is now on record are some feeble observations of the Competent Authority formulated without discussions with the newspapers. These observations state that "the media may follow the official statements, releases issued by the relevant organisations" and go on only to beg the question by commanding in grandiloquent terms that "the media should also refrain from reporting any matter that would affect the morale of the Security Forces." This is then how the status quo is maintained and this is how court processes continue to be blatantly violated by media censors for the greater political good of their masters.

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