Focus on Rights

These vaguely defined sections carry heavy penalties if found guilty. Their punitive usage has been somewhat restrained in the past. However, there is no guarantee that these prohibitions cannot be made immediately effective if the political and legal will is present.

The 2002 media law reforms package agreed to by the United National Front was in many ways, one of the most positive features evidenced during that short administration.

The drawbacks of that period are now well recorded: foremost among these were its failures to identify with the problems of the ordinary people, the repulsively eager subordination of some of its top rankers to the embassies of the West and its disinclination to address key questions of democratic governance. These ranged from failing to take punitive action against corrupt Ministers to bypassing outstanding allegations of abuse of office by some judicial officers that had been documented from 1999.

This convenient laissez faire attitude was, of course, to carry a heavy political price as the UNF found out to its cost later. The cost of such inaction to the country and its democratic institutions as a whole was inestimable. But that belongs to a different discussion.

What we are concerned with here is its enlightened approach towards media law reform as manifested by the abolition of the laws of criminal defamation in the Penal Code and in the Press Council law. Recognition that Sri Lanka needed specific laws on freedom of information and contempt of court was also an important development with draft laws emerging during this period.

On the other hand, the long maligned Sri Lanka Press Council lapsed into an inglorious non-existence during this time. Its functioning had, in any event, not been particularly distinguished throughout the past several decades. The Council had been greeted with severe criticism from the inception of Law No 5 of 1973 by which it was established. The narrow composition of the Council, the privileging of the government in terms of appointments to the Council and the semi-judicial powers of Council members, all of whom do not necessarily possess legal training, were undoubtedly serious concerns.

As the decades progressed, these initial concerns were fully justified as the Press Council evolved into an ineffective and highly politicised institution that did little to uplift the standards of the Sri Lankan press. Its abolition had been called for by the RKW Goonesekere Report on the Reform of Laws on Media Freedom and Freedom of Expression. Its deficiencies had been highlighted innumerable times on the floor of Sri Lanka's Parliament.

Its welcome lapsing from 2002 was accompanied by a strong push towards effective self regulation at the instance of the media industry. The implementation of the Code of Professional Practice and the establishing of the Press Complaints Commission (PCC) were part of these efforts.

The PCC, like all self-regulatory bodies, was not perfect. Indeed, it possessed many of the flaws that had plagued the British Press Complaints Commission so far, most particularly, the lack of effective sanctions against erring newspapers. This lacunae has been evidenced during its functioning since 2003.Yet, the argument that the PCC constitutes the infinitely preferable alternative to a government controlled Press Council is irrefutable in terms of its practical logic.

This is why the recent move by the current government to re-activate the Press Council must be viewed with justifiable alarm. Quite apart from the political nature of the appointments that must be inevitably made to a re-activated Council, there are other concerns. It is true that Press Council Amendment Act No 13 of 2002 repealed Section 15 (1)(b) of the Press Council Law, taking away the power to penalise individuals for criminal defamation.

This, as might be recalled, was an amendment act passed along with a parallel amendment act to the Penal Code on the unanimous will of Parliament in 2002 after criminal defamation provisions were used at the instance of government politicians to penalise journalists at their whim and fancy.

However, other provisions in the Press Council Law are still highly problematic. Section 16 of the Law prohibits the publication of Cabinet decisions, Cabinet documents and selected defence, fiscal and security matters. Section 16(3) prohibits the publication of an official secret as defined in the Official Secrets Act of 1955. This again is a very vague description and catches up any secret official code, word, countersign or pass word, any particulars or information relating to a prohibited place or anything therein.

An official secret has also been defined to mean any information of any description whatsover relating to any arm of the armed forces or to any implements of war maintained for use in the service of the Republic or to any equipment, organisation or establishment intended to be or capable of being used for the purposes of the defence of Sri Lanka. Also included is any information of any description whatsover relating directly or indirectly to the defences of Sri Lanka.

The draft Freedom of Information law that was finalised in 2003 proposed that these old pre-colonial terms should be done away with. Sri Lanka was urged to adopt the legislative balance now evidenced in the majority of Commonwealth countries between the need to protect national security and the rights of citizens. It is a pity that all these efforts are now so demonstrably in vain.

Then again, Section 15(1) d) of the Press Council Law prescribes it as an offence to publish any indecent or obscene statement or matter. Later, "indecent or obscene statement or matter" is "deemed to be any statement or matter which is likely to deprave and corrupt persons who may, having regard to all relevant circumstances, read or see that statement or matter".

Every person who publishes or causes the publication of such matter in any newspaper, shall be guilty of an offence and upon conviction, is liable to be punished with a fine not exceeding five thousand rupees and/or imprisonment of either description not exceeding two years. This punishment is even more severe than the punishments prescribed in the Obscene Publications Ordinance.

As a matter of historical interest, it was after strong representations were made before the Press Commission, appointed under the Commissions of Inquiry Act (Cap 393) in 1963 by then Governor General William Gopallawa, that provision relating to the prohibition of publication of obscene matter was included in the Press Council Law and obscenity defined thereto. Regardless, these were definitions appropriate for that period and vastly out of touch with current reality.

Presently, Sri Lanka's media needs to acknowledge the heightened need for self-analysis and self-regulation. This is essential for its establishing as a critical and credible force in shaping public opinion and securing the right to know.

However, this need cannot be met by the reinvention of government controlled proxy bodies.

There must be the proper balance struck between media rights and responsibilities and a return to an enlightened media law reform process evidenced in 2002. Notwithstanding, if the present Government persists in the re-activation of the Press Council with all the inherent flaws in the parent Law, this should be strongly resisted.