6th July 1997

It’s a Pyrrhic victory that the govt. rejoices about

By Rajpal Abeynayake

“Outdated and repressive laws still clutter the statute books of many commonwealth countries; worse, they are regularly used to clamp down on the emerging independent press. The mere existence of the insult laws and criminal libel legislation stifles the free flow of information and the exchange of views which are the lifeblood of democracy” —— Michael Stent, Chief Executive Commonwealth Press Union (CPU News April 1997.)

When a person writes about the substance of a court verdict, that’s legal writing. But, when a person writes about the legislation under which the verdict was made , that’s political analysis.

Having got that out of the way, it is easier to understand that the recent criminal defamation conviction against The Sunday Times editor is a matter now committed to the political realm. The legal battle will undoubtedly be pursued in the appellate courts. But, in the meanwhile it will be sheer chicanery for anybody to pretend that the Editor’s guilty verdict was a normal run of the mill conviction.

That’s for the simple reason that the Editor has been convicted under patently archaic and obsolete laws . No less than the Editor of the “Observer”, (the state controlled newspaper) states in his Editorial of 3.7.97 that the question now is whether criminal libel legislation should not be in the statute books at all.

The issue is actually settled. A committee appointed by the government, and headed by R.K.W. Goonesekera has recommended that criminal libel legislation be removed from the legislative enactment’s of this country.

Hence, we here have a situation in which an Editor is indicted, and made a “convict” on a law which, on the recommendation of the state’s own appointee is so outdated that it should be struck out of the statute books.

What’s absurd in the reactions to the conviction of Sinha Ratnatunge, is that some of those who applaud the verdict have done so under the delusion that the obvious can be concealed. Nobody is challenging the “conviction’ on the merits of the verdict, because that’s a matter for the appellate courts to decide. But, when the “conviction’’ is made under a law that is archaic and outdated , that it is no longer used in any civilised polity, that then catapults the “conviction” made under such law into a different dimension.

In other words, the issue is immediately cast into the political realm. No, the judge or the state Attorney’s cannot be faulted, because they worked within the existing legal framework. But, the legislature has to take cognisance of the fact that the conviction was made by using a law that goes against all prevailing civilized norms.

The state can do two things about it. One is to change the law. But where does that place a conviction that was made under a law that ought to have been removed in the first place?

Cut the hypocrisy and the posturing. It means that the “convict” is not a convict in the conventional sense.. By the way, if he is cast as some kind of martyr, the state asked for it. That’s only incidental. But if people try to pretend that Sinha Ratnatunge is now a common and conventional criminal and attempt to paint his persona in this light, obviously the sentiments of such people have to be dismissed with the contempt they deserve .

The state asked for a maximum sentence, and the judge delivered a suspended sentence. That’s one good thing that comes out in favour of the fact that even the judiciary considered the circumstances venial and excusable, despite the belligerent stance of the state.

Often, in these amorphous instances when justice is done on the terms of outdated or inappropriate legislation, the convictions that are made tend to be seen , with time as systemic aberrations. For example, the current Prime Minister Sirimavo Bandaranaike was deprived of her civic rights, ostensibly by legitimate legal process. Customarily, there were those who applauded, citing her acts of “abuse of authority.” With time that damning indictment is seen for what it was — an act of political victimisation, now retroactively annulled.

With time, the Sinha Ratnatunge conviction, with all the element of sensation that attaches to it, will tend to be seen in the same way that people today view the banning of Lady Chatterly’s Lover, the work of D. H. Lawrence. The “obscene publication” of that era is now prescribed reading in English literature curricula in many of the world’s recognised universities. Its only an analogy, but it should suffice.

The state also cannot take away with one hand, what it gives with another. The state lays maximum emphasis on its “impeccable human rights record .” The state is signatory to a plethora of human rights covenants and conventions, and thus aspires to be a “civilised state.” As Justice Mark Fernando elaborated in a recent observation from the Supreme Court bench, matters such as the period of detention under Emergency Regulations , have to be decided with reference to the human rights conventions and covenants to which we have been signatories..

The same yardstick of consistency holds for the matter under issue in this article viz.: legislation on criminal defamation. There can be no argument that criminal defamation legislation is not used in civilised emancipated societies to indict journalists. ( Refer opening quote.) In which case, the government’s pledge to foster human rights and observe international covenants and global civilised norms becomes a mere pantomime, a cosmetic act.

The “ freedom of the press” however, is only part of the issue under consideration. The main issue is whether it is considered civilised and equitable ( just think about it) to have legislation to send an Editor to jail for four years ( maximum sentence for defamation and under press council laws ) for two paragraphs, written under deadline, about a public figure under prevalent human rights laws and human rights norms — even if those paragraphs were determined hypothetically to be maliciously motivated?

The obvious fact is that today civil remedies such as substantial award of damages are considered not only sufficient but appropriate (in a human rights context) as recourse against libel and defamation.

This is why criminal defamation laws are not used against any person, not just journalists, in many emancipated legal systems. Such laws are not used because they have long been removed from the law books . For instance, there is no criminal defamation now prevalent in British common law. That law has become obsolete by non use.

Britain is where our Penal code and the provisions under which Mr. Ratnatunge was indicted originated! Hence, it is a misinterpretation to typify the whole issue as merely being one of “freedom of the press” vs “individual rights.” If Criminal Defamation laws are not used against anyone in civilised polities, obviously the issue boils down to whether we have civilised legal systems or not.

So, since this is not merely a “press freedom thing’’, it should be clear other than to the purblind (or the purposefully purblind ) that the issue of the “conviction” of Mr. Ratnatunge transcends the usual parameters.

The usual run of the mill censure or condemnation that should attach to a convict will not attach to Mr. Ratnatunge, no matter who celebrates the conviction for what reasons.

For many reasons, actually, the conviction could be a massive Pyrrhic victory for the state. Countries do not give aid to defamed Presidents (so said a prosecuting counsel). Countries certainly are known to think carefully before extending aid to nations which contravene, if not the letter, definitely the spirit of human rights conventions by ensnaring its detractors by the use of archaic laws.

Since we profess not to be a banana republic, it will be best for the legislature to repeal the doddering criminal defamation legislation, and then pardon the Editor who was convicted under its provisions. Oppression by taking cover under the facade of legal legitimacy is worse than oppression of journalists by the threat of physical harm and death.

Going from the sublime to the ridiculous, Mr. Desmond Fernando, the President of the International Bar Association should not have, notwithstanding all, garlanded Mr. Ratnatunge immediately after the event of his “conviction.” It appears Mr. Fernando had his own agenda which he pursued in a loaded situation. A lawyer is supposed to be pro-systemic, at least by oath, even if the system had been abused i.e: archaic legislation used for political purposes. It would have been another matter, in the aforementioned context, if a human rights activist or a free media advocate garlanded Mr. Ratnatunge out of the precincts of court.

The President is a public personality, and a public personality, particularly, is not sacrosanct. She is subject to press scrutiny, and if any defamation or libel is directed towards her in the process (and all too possible occurrence under the circumstances of her highly public profile) she should seek recourse of civil remedies by way of substantial damages.

The press advocates responsibility and does not ask for the freedom of the wild ass; but the remedies of the Executive (now being referred to in many newspapers by misnomer as the “individual”) should be commensurate with the nature of the act of libel.

This government has no moral right to pretend to be upholders of human rights, much less champions of the freedom of the press (a platform they rode to power) until Criminal Libel and draconian press council laws are repealed, and the Editor convicted granted an unconditional pardon. Else, time will definitely tell that its a Pyrrhic victory that the government rejoices about.

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