18th October 1998
By Kishali Pinto Jayawardena
Amid a 'war of words' over the recent Kilinochchi military debacle, as one newspaper headline so poetically put it, some uncomfortable questions come creeping out of the woodwork.
Would, for example, a barrage of news on the ongoing military operations unrestricted by censorship change the situation and 'shock the conscience of the nation' as one could term it? Granted, the right of the public to know, has to be conceded. The melancholy question now has become whether this all-so-great 'public' would care, even if they knew?
Let us recite the basics first. What was incredible was the stoic silence with which the rest of the country reacted to the death toll. Coupled with this, the rhetoric was immediate and nauseatingly so. In Parliament, opposition MPs called for an immediate lifting of the censorship, asking that the exact figures of the casualties be made public. Predictably, their appeals were rejected by Government MPs who heard the 'voices of the LTTE' speaking in the House. Lobbyists spoke shudderingly of being transported back in time to a different era where it was only the colour of the party that was in power that was different, with the arguments being the same, so incredibly the same.
Media organisations, meanwhile, demanded a fuller right to freedom of expression and information, amidst angry allegations that the censorship was being misused for political reasons. The current censorship was imposed in early June, with "irresponsible" media coverage of the war being cited as the main reason. It was said that information relating to military operations and strategies was being leaked out, and the censorship was necessary to restrict reporting the figures of the dead and the injured so as to avoid agitation of the people.
Demonstrably, the real purpose was to deaden the reality of what was taking place in the country. The regulation prohibits journalists from communicating any news relating to operations carried out or about to be carried out by the forces or the police, the deployment of troops or personnel or of equipment including aircraft or naval vessels or any statement relating to the official conduct or the performance of the Head or any member of the Armed Forces or the Police Force.
There was, of course, some silver lining to the ominous cloud. The latest regulation purposely omits procurement of arms and supplies from the list of prohibited items. On the other hand, it continues to forbid any statement pertaining to the official conduct or the performance of the Head or any member of the Armed Forces, despite previous critical comment that this prohibition is too broad in that it covers even allegations of human rights violations.
What was more worrying was when it became immediately apparent that the regulation, in the honorable traditions of the past, was being arbitrarily implemented. Within a short time, tension began building up, supplemented by caustic exchanges of letters of protest between the Military Censor and the media.
Specific instances were cited where the same news that was red pencilled in some newspapers had been allowed in other newspapers, where previously published statements made by the President herself at a public function had been deleted, where changes in the military high command have been successively deleted, even though these same changes were previously reported in the press.
Alteration of information relating to casualties became common and copies relating to procurement were deleted by a Censor apparently not aware that the regulation expressly omits reportage on corruption in procurement of arms and supplies from its list of prohibited categories. In fact, it appeared that the gentlemen operating under the direction of the Military Censor were proceeding on very fundamental misapprehensions. Their urge to red-pencil all copy of the nature specified in the regulation ran contrary to a very basic safeguard. It was very plain that thought was not being given by them as to whether prohibition of such copy was actually necessary in the interests of public order, national security or the other specified reasons on which the Constitution allows restriction of freedom of speech and expression.
What is obvious is that a flagrant continuation of the present practices of censorship cannot be tolerated any longer. Information that must legitimately be placed in the public domain has to be so placed. By not doing so, we are violating fundamental principles of international law by which we are bound, even though our policy makers and nation leaders seem to take them so lightly. It is a first principle of Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR) to which we are a signatory, that restrictions on basic rights in times of emergency may be imposed only to the extent strictly required by the exigencies of the situation.
In this case, the regulation only broadly defines categories of issues to be subjected to censorship, with no requirement that these even relate to the protection of national security, let alone that they be necessary to achieve these ends.
Again, the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, which have now come to be accepted worldwide as laying down the standards that should operate with regard to censorship, make explicit what restrictions on freedom of expression based on national security interests would not be legitimate. This includes restrictions, the genuine purpose or demonstrable effect — which is to protect interests unrelated to national security.
On these principles, it is clear that all cuts by the censor of copy critiquing the censorship itself, copy where factual information is altered, copy regarding civilian casualties, copy regarding conditions of the displaced, food shortages etc. and copy concerning the publication of information already well known to the general public are outside his authority. In the latter case, it could well be said that once information has been made public, any justification for trying to stop further publication will be overridden by the public's right to know, except where it is convincingly established that the circulation of information is very limited and further dissemination poses a serious threat to a legitimate security interest.
It is argued that the Government co-operate with the media in a national emergency by having a continuing dialogue and by providing useful information at the right time, rather than by imposing censorship which often gives rise to rumours and speculation, making crisis situations worse.
Todate, the media have been treated with a mixture of condescension and wariness, rather like one would regard a pack of half savage hounds. Perhaps, it is time for a different approach. Just to see whether that could work better. Maybe that would show, once and for all, the maturity of both this country and its leaders.
Victor Tennakoon was the first Kandyan to be appointed to the Supreme Court. He was appointed as an Acting Attorney-General when Dudley Senanayake became the Prime Minister in 1965. At this time there was an ongoing investigation on an allegation of bribery concerning Dr. Mackie Ratwatte, brother of Ms. Sirimavo R.D. Bandaranaike.
It was alleged that Dr. Mackie Ratwatte, the Private Secretary to the then Prime Minister, Ms. Bandaranaike, took a large bribe to grant a permanent resident visa to an Indian national called Papuraj.
The then Bribery Commissioner V.T Panditha Gunawardene sent the dossier containing the details to the Attorney-General's Department. Kenneth Seneviratne recommended indictment, but Ananda Pereira, the Supervising Officer of the Attorney General's Department raised some queries as to the propriety and the acceptability of the evidence that had been recorded and submitted the same to Douglas Janze, QC, the Attorney-General.
Mr. Janze made some observations and said that this matter must be gone into by his successor, Victor Tennakoon, Q.C. Mr. Tennakoon was the Acting Attorney-General. He refused to indict Dr. Ratwatte and made strong observations why the indictment should not be allowed.
The Bribery Commissioner V.T. Panditha Gunawardene, insisted that these matters are matters to be left to a Judge who would have the benefit of hearing the evidence. On the other hand Mr. Tennakoon rejected the notion that the evidence must be left to the Judge, when it was the duty of the Attorney-General to weigh the evidence, and unless he is satisfied in his mind that the evidence was sufficient for him to prosecute a party.
Dudley Senanayake's Government could not bring any pressure on Mr. Tennakoon, instead they elevated him to a Judge of the Court of Appeal, which replaced the Judicial Committee of the Privy Council as the final appellate Court of Sri Lanka.
The Government brought in A.C.M. Ameer Q.C. who had retired as the Acting Solicitor-General.
Mr. Ameer sent down the indictment and personally prosecuted Dr. Mackie Ratwatte with a team of Crown Counsel which included A.C. de Zoysa, Ranjith Abeysuriya and Kenneth Seneviratne. The trial was before S.S. Kulathilake, District Judge of Colombo. Dr. Mackie Ratwatte was represented by Mr. George Chitty, Q.C., Wanam Rajaratnam and Nihal Jayawickrama.
The Judges did not go in search for contradictions, omissions to acquit accused. The implausibility of the evidence and the position the accused held in society was considered sufficient to create a doubt.
Today, especially after the Commissions headed by Bandaranaike, the lies on oath replaced truth as long as it fitted to the theory of the Commissioners. Mr. Kulathilake's judgement is a clear indication how he evaluated the evidence, keeping in mind that the accused is the brother of the former Prime Minister of Sri Lanka.
Though George Chitty, Q.C. ap peared for the accused he was not successful in contradicting the evidence for the prosecution. The judgement of Mr. Kulathilake shows clearly how the minds of the Judges worked during those days.
Mr. Kulathilake in his judgement made the following observations " All this is on the basis that the Court can accept the evidence by Papuraj, supported as it is by Kalam, but in my view no reasonable Court can accept the oral testimony of Papuraj that this gratification was given to the 1st accused who is a person holding a responsible post under Government.
One day in the afternoon on the 16th March 1964 an unknown car drove up the compound. The car contained some people unknown to him, one of the persons, possibly known to him, - there is proof even of that fact – walks up to him who has by now come up to the parties and hands him quite openly Rs. 1,000/- which he accepts without any hesitation and puts it into his shirt pocket. Similarly on the night of 18.4.64 unknown car drives up to his house, in this case the ancestral walawwa of the 1st accused, that the same person who on the previous occasion is said to have given him Rs1000/-walks up to him and the 1st accused who has now come to the entrance of his house openly accepts this Rs. 4000/- and puts it in his shirt pocket to be seen by the unknown person in the car.
On this occasion the 1st accused does not appear to have been in any way hesitant about accepting the money. He does not appear to have been anxious to conceal the acceptance from any person who may have seen it. He does not take the precaution even of accepting the money without being seen by the unknown person.
It cannot be said that he is unaware of the seriousness of the offence he is committing. He does not seem to care as to whether he is led into a trap or not. I do not think any ordinary person would accept a bribe in such a manner, least of all a person in the position of the 1st accused who holds such a responsible post under government.
Counsel for the defence has asked the Court to hold that Papuraj is not a person whose testimony can be acted upon. Papuraj then soon after he obtain the letter P29 prepared a petition to the Bribery Commissioner with the legal advice of Proctor Namasivayam accusing the Private Secretary to, and the brother of the, Prime Minister and son-in-law of the Governor-General of bribery, hanging on one slender thread, viz the fact that the 1st accused had endorsed on the petition of Cader Sultan's wife (P10) the word ' forwarded' .
At the conclusion of the trial S.S. Kulathilake, the District Judge acquitted the accused, Dr. Mackie Ratwatte and made a caustic remark "I do not think this prosecution has been launched with any hope of success either of the facts or on the law".
Mr. Ameer the Attorney-General was furious, but he did not launch an investigation against the District Judge. There was no surveillance of the movements of the District Judge by the CID. Instead he appealed against the order.
The Dudley Senanayake Government retained Mr. Noel Gratien, Q.C. who was in England and flew him down to argue the case on behalf of the Government. The case was to begin on a Monday and everyone at the Law Library thought it would take a whole week with Mr. Gratien, Q.C. appearing for the State and Mr. Chitty, Q.C. appearing for Dr. Mackie Ratwatte.
The case came before two of the most eminent Judges of the Supreme Court, Chief Justice T.S. Fernando, Q.C. and Justice H.N.G. Fernando, but Mr. Gratien, Q.C could not last the morning. The sharp and intellectual prowess of the two Judges saw through the infirmities of the case it was too much even for one of the greatest lawyers the country has produced. When everything was failing and falling down around him Mr. Noel Gratien, Q.C. pleaded and mitigated for the expunging of the strictures passed by S.S. Kulathilake.
Unlike today as the indictment had to be signed by the Attorney-General himself, this was a virtual aspersion on Mr. Ameer himself. Chief Justice H.N.G. Fernando refused even to change a comma in the judgement. Mr. Tennakoon was later appointed as the Chief Justice of this country. When he became the Chief Justice under Felix R. Dias Bandaranaike he displayed the same independence. Whereas Mr. Ameer will be remembered for having prosecuted Dr. Mackie Ratwatte his views having accorded with those of his political masters.
When Ms. Sirimavo Bandaranaike came to power in 1970 Mr. S.S. Kulathilake was nominated to the Senate and appointed as the Minister of Cultural Affairs. Mr. Rajaratnam and Nihal Jayawickrama , Junior Counsel to Mr. Chitty were appointed to the Supreme Court and the Secretary to the Ministry of Justice respectively.
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