In the view of the R.K.W. Goonesekere Committee neither Parliament nor its members require any protection from defamation over and above that enjoyed by ordinary citizens.
Indeed the principle reflected in several decisions of the European Court of Human Rights is that "The limits of acceptable criticism.... wider as regards politicians as such than as regards a private individual.
The International Covenant on Civil and Political Rights does not recognise Parliamentary Privilege as one of the permitted restrictions on freedom of expression.
The Committee has further stated Section 479 in the Penal Code which deals with criminal defamation should be repealed as prosecution under the said law can discourage criticism of government ministers and policies or expression of political dissent in spite of several defences the law allows.
The Committee appointed by President Kumaratunga which sat for a year debating to advise on the reform of laws affecting media freedom and freedom of expression, submitted its final draft in May 1996.
The report referring to 'Offences Under the Penal Code', states provisions in the Penal Code that impinge on freedom of expression should be amended or repealed. Section 118, of the Code which makes it an offence to bring the Queen/President into contempt by contumacious insulting or disparaging words (spoken or written) should also be repealed, states the Committee headed by eminent lawyer R.K.W. Goonesekere.
The subject of media freedom has gained considerable publicity and importance in the past few years. The PA which promised to free the existing media from government and political control while in opposition is using criminal laws of the country today to penalise five newspaper editors.
One of them was on Tuesday convicted on two counts for defaming President Kumaratunga.
The new Media Minister Mangala Samaraweera is on record saying the government is committed to promote a new democratic and liberal media culture.
The former Media Minister Dharmasiri Senanayake in a letter to the Cabinet on 13.10.94 had said the PA government's media policy was determined to put an end to the abhorrent practice of intimidating and assaulting journalists directly or indirectly by state agencies or others, in response to carrying out their professional duties.
The statement attested by Minister Senanayake, said the PA government recognised the media's right to expose corruption and misuse of power.
Mr. Samaraweera told The Sunday Times last week the government would welcome criticism on policies and issues and would not object to the media highlighting what the menus of VVIP's and VIP's consisted of. "Let them have a separate column if they must on that," he said.
The PA's election manifesto promised to broadbase the ownership of the Associated Newspapers of Ceylon Ltd., (ANCL). A Committee to this effect later made recommendations which have not been accommodated by the government.
Minister Samaraweera reiterates to broadbase ANCL. But it appears that it will be yet another issue that will have to wait for the moment.
The PA further promised fiscal policies would not be used as an instrument of suppressing or controlling the media.
The requirement of the Attorney General's sanction for a prosecution has not proved an effective safeguard, states the Goonesekere Committee. If the provisions related to criminal defamation cannot be repealed, at least the section should be amended so to empower, the High Court Judge to decide whether or not to indict.
Namely, there should be a prima facie case, the libel must be so serious that it is proper for the criminal law to be invoked; and public interest requires the institution of criminal proceedings.
There should be provision for the accused to be heard against the application for permission to indict.
The Committee asserts the absence of protection in Sri Lanka for confidentiality of sources of information of newspapers and other media is a serious impediment to investigative journalism and the exposure of public scandals and wrongdoing. The right of journalists not to be compelled to disclose their sources of information should be guaranteed by law.
Any exceptions should be strictly confined to the requirements of criminal justice in cases of grave crime, and should be on a court order after a hearing at which the journalist concerned has the right to be represented.
Deputy Solicitor General Rienzie Arsecularatne, who appeared for the state in the defamation case against The Sunday Times chastised the media pointing out the influence newspapers have among the masses and stressing that they should exercise great restraint in what is published. The R.K.W. Goonesekere Committee report further articulates the need for a Media Council which would act as an independent body, compiling a composition of a majority of media personnel of proven competence and integrity. Such persons should be nominated by an independent body or bodies.
The provisions relating to contempt in the Press Council Law are unacceptable in that they vest excessive power in the Council and should not be retained in the Media Council Act. Contempt or any issue of contempt should be referred to the courts, states the report.
Rohan Edrisinha, Lecturer at the Colombo Law Faculty and a signatory to the report says, seeking political consensus on a Broadcasting Authority is okay, but the Minister for Media must not reinvent the wheel with regard to other areas of law reform.
Substantial research and considerable deliberation have gone into the reports of the Broadbasing of Lake House and the R.K.W. Goonesekere Report on Media Law Reform. The bottom line is that Lake House is at present an illegal organisation, says Edrisinha. "This status quo cannot remain."
Minister Samaraweera, he asserts has responded positively to one recommendation of the report. However there are 20 other recommendations. Let these two recommendations be tabled in Parliament and a debate held, he said.
Appointing a Select Committee of Parliament to consider issues which have already been studied by Committees of media personnel, human rights activists, journalists and lawyers would otherwise justifiably be viewed as a mere "delaying tactic," Mr. Edrisinha said.
Sri Lanka's Constitutional guarantees of free expression but it need to be brought into line with international legal obligations. More specifically the International Covenant on Civil and Political Rights, the Goonesekere Report states. The UN Human Rights Committee when it examined Sri Lanka's Third Periodic Report in Geneva in July 1995 strongly recommended that the State party take urgent steps to ensure that its domestic laws are in full compliance with the Covenant.
In this regard the report recommends that within the context of the present efforts to reform the Constitution due consideration be given to the provisions of the Covenant. Article 19 of the Covenant begins with "Everyone shall have the right to hold opinions without interference." Article 19 further states everyone shall have the right to freedom of expression.
Regardless of all frontiers this right should include freedom to seek, receive and impart information, respecting however the rights or reputations of others and for the protection of national security or of public order, health or morals.
In a 328-page judgment peppered with acerbic comments on the duty of care imposed on journalists, Colombo High Court judge Upali de Z Gunewardena on Tuesday handed down a double conviction on Editor of The Sunday Times, Sinha Ratnatunge, for criminally defaming President Chandrika Kumaratunga. Recalling his Shakespeare somewhat belatedly but nonetheless blessedly, Gunewardena J. preferred however to impose a suspended sentence on The Sunday Times editor, reminding a hard-line state prosecutor that the "quality of mercy is not strained... it droppeth as the gentle rain from heaven..... It blesseth him that gives and him that takes"
The Sunday Times Editor was indicted under the Penal Code and the Press Council Law for a gossip column item in the Times of February 19, 1995 which spoke about the President attending Parliamentarian Asitha Perera's birthday party at a five star hotel. Holding the editor guilty on both counts, a 12 month term was imposed under the penal law while the second count warranted a lesser term of 6 months. Both sentences were suspended for 7 years and are to run concurrently.
The questions before the court were in the main threefold. Whether the gossip item in issue was defamatory of the President, whether it was the editor who published the relevant excerpt, or caused its publication, and whether the editor intended to defame the President, or had reason to believe that the gossip item would harm her reputation. During an oft stormy 18 month trial that preceded the judgment, Defence Counsel argued heatedly that the editor had believed that the President had attended the party, and in any case, that he had not seen anything in the news item which would make anyone think less of her for having done so. He had in fact honestly believed that the gossip item was not defamatory.
Evidence by him that he had himself attended dinner parties at which the President had been present till the wee hours of the morning was not challenged by the State.
It was pointed out that The Sunday Times catered to a strata of society in which the news that a lady had gone for a birthday party at 12.30 a.m. and left 90 minutes later would not raise any eyebrows.
"If this not be the case, it would follow that every lady judicial officer and attorney at law who attends the annual "Voetlights Dinner" is guilty of improper conduct or conduct unbecoming of a lady," remarked Defence lawyer President's Counsel Tilak Marapana.
Gunewardena J. did not agree. Quoting from his much maligned interim order, he pointed out that the President's conduct in arriving and leaving at such a late hour as reported in the gossip item had to be considered against the social mores of the country. This together with the fact that she was said to have entered through the back door of the hotel, use of phrases like "the heat of the silent night" and "epicurean" invites the reader to engage in some loose thinking. According to him, this is further heightened by the headline to the gossip column which states that "Anura: Sootin says that courtin' days are here." That the headline related to the President's brother rather than the President is conceded, but the court uses the fact that the first item under the headline is the gossip item in question, to say that the headline had also an impact "suggestive of romance." The entirety could therefore suggest a sexual receptiveness or responsiveness which reflects badly on the President, said the court.
"It cannot be said that where an expression is capable of being understood both in a defamatory sense and non-defamatory sense, the latter ought always to be accepted....... the test is whether reasonable men to whom the publication is made would understand it in a libellous sense,"
The court observed, adding that even if a small group of persons thought that the item was defamatory, it would be sufficient to impose liability.
The intention of the Editor is meanwhile irrelevant. In thinking that the article was not defamatory, the editor had committed a mistake of law for which there is no excuse.
"You commit the offence when the publication is made in the columns of the newspaper of which you are the editor, irrespective of whether or not you knew that the publication was defamatory in the eyes of the law," states Gunewardena J.
Neither does it matter whether the defamatory statement was in fact believed.
"A tendency to harm the reputation is all that matters.....,"
Concluding that the gossip item was "as defamatory as defamatory can be" of the President, the court discusses the manner in which the editor could be held responsible for its publication. The Sunday Times Editor is found guilty not only on the ground that as editor, he was responsible for the publication, but also on the basis that he himself wrote the article in question. The fact that throughout the trial, editor Sinha Ratnatunge refused to disclose who actually wrote the article is used strongly against him.
The editor's refusal was based on the time honoured journalistic principle that to reveal a source of information would signal the death knell for press freedom.
Taking this as a deliberate refusal, the court points out that the rule newspapers ought not be compelled to disclose the sources of information is not an absolute principle. It is a privilege granted only if the newspaper acts responsibly. In this case, the refusal of the accused editor to disclose the name of the writer is castigated in the most severe terms by court.
"......He has thereby excluded or suppressed evidence......and thus made it more difficult for the court to do what it is expected to do," Says Gunewardena J.
This refusal by the editor is also taken to infer something else.
"The impression is almost irresistible that if he knows who had written the relevant item yet refuses to say who it was, it may well be himself.....," he points out.
Meanwhile, other reasons are put forward in support of the view that in fact the accused himself was the writer of the offending article. The Sunday Times Editor had informed court during trial that he had also contributed three paragraphs to the column without having the remotest idea about the defamatory item which was in the rest of the column.
"I accept responsibility as editor not as the writer," he asserted. This explanation is not believed by the judge, who uses statements made by the editor that the column is written by one person with news items being collected from different sources to infer that he had written not three paragraphs but the entire column. Gunewardena J. also refers to a Sunday Times editorial the previous year where the phrase "in the heat of the night" had been used to remark on the manner in which the President had left the country without telling anybody where she was going. Here, the phrase "in the heat of the silent night " was again used.
"Just as much as a tree can be identified by the kind of fruit produced, so can a writer be identified by his diction and choice of words," said the court, holding the view that only editors write editorials and therefore the editor would have also written the defamatory item in question.
"Editors who do not as a rule, write the editorials would be few and far inbetween, if not something of a rarity," Gunewardena J. commented in obvious ignorance of the fact that in editorial offices it is actually leader writers who write editorials rather than editors.
It is interesting to note that recommendations made by the R. K. W. Goonesekere Law Reform Committee to abolish the criminal defamation provision in the Penal Code come for particularly scathing criticism by Colombo High Court judge U.de Z. Gunewardena.
The committee comprising eminent personnel in the fields of law, media and human rights had been appointed to look into areas of media law reform by the then Minister of Media, Dharmasiri Senanayake, last year, and had since submitted its report, urging wide reforms in order to bring Sri Lanka into line with international law.
Arguing for the retention of the law of criminal defamation, Gunewardena J. says that otherwise it would amount to withholding the protection of the law to someone whose name has been blackened and reputation tarnished.
"Section 479 of the Penal Code creating the offence of defamation is as flawlessly and exquisitely a balanced section as one can hope the law to be......... and there is neither the need nor the room to improve what is already perfect and faultless," he comments.
Last week's decision in The Sunday Times case is noteworthy in that it is the first time that the Sri Lankan law relating to criminal defamation has been dealt with in such exhaustive detail. Whether by virtually imposing strict liability on journalists, it has struck the correct balance between the freedom of the press and the privacy of the individual is of course another matter.
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