| by Lakshman I. Keerthisinghe

'If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had power, would be justified in silencing mankind.’ - John Stuart Mill- Essay ‘On Liberty’ (1859)

( January 19, 2015, Colombo, Sri Lanka Guardian) President Maithripala Sirisena’s 100 day program assures that both immediate and long term measures will be taken to safeguard the independence of media personnel and institutions and that the Right to Freedom of Thought and Expression will be strengthened. Gayantha Karunathilaka who assumed duties as the Minister of Mass Media and Information addressing the media personnel invited all journalists who fled the country in fear of reprisals to return to the country noting that a peaceful environment will be created where journalists would be able to express their opinions freely.

Mass Media & Information Minister Gayantha Karunathilake assumed duties.
The Minister also stated that the Right to Information Act will be implemented through the 100-day program of President Maithripala Sirisena which would allow the public to freely access information they require. The newly-appointed Secretary to the Ministry of Mass Media Karunaratne Paranavithana stated that the current administration stands for a media culture which does not send white vans after journalists and does not bribe the journalists into exercising self-censorship.

Freedom of the press or freedom of the media is the freedom of communication and expression through mediums including various electronic media and published materials. While such freedom mostly implies the absence of interference from an overreaching state, its preservation may be sought through constitutional or other legal protections.

National interest

With respect to governmental information, any government may distinguish which materials are public or protected from disclosure to the public based on classification of information as sensitive, classified or secret and being otherwise protected from disclosure due to relevance of the information to protecting the national interest.

Many governments are also subject to sunshine laws or freedom of information legislation that are used to define the ambit of national interest. This philosophy is usually accompanied by legislation ensuring various degrees of freedom of scientific research (known as scientific freedom), publishing, press and printing the depth to which these laws are entrenched in a country's legal system can go as far down as its constitution.

The concept of freedom of speech is often covered by the same laws as freedom of the press, thereby giving equal treatment to spoken and published expression.

z_p08-EXPANDING01.jpgReferring to media freedom, John Stuart Mill approached the problem of authority versus liberty from the viewpoint of a 19th-century utilitarian: “The individual has the right of expressing himself so long as he does not harm other individuals. The good society is one in which the greatest number of persons enjoy the greatest possible amount of happiness. Applying these general principles of liberty to freedom of expression, Mill stated that if we silence an opinion, we may silence the truth. The individual freedom of expression is therefore essential to the well-being of society. Mill’s application of the general principles of liberty is expressed in the quotation at the outset of this piece as stated in his book On Liberty”.

z_p08-EXPANDING02.jpgThe media which is a trustworthy and powerful tool in moulding people’s opinion and understanding is playing an important and powerful assignment similar to the Legislature, the executive and the judiciary. If the people get true information about things happening in the country at all times they will come to right conclusions. The trust of the people will not get slackened.

Democracy and good governance

The Director General of UNESCO, Irina Bokova, once said that ‘The freedom to speak and the freedom to write are essential preconditions for the transition towards democracy and good governance.’ Early human rights documents incorporated the Freedom of Speech. In England, the Bill of Rights 1689 granted freedom of speech by Article 3.

The Declaration of the Rights of Man and of the Citizen adopted during the French Revolution in 1789, asserted that the freedom of speech is an inalienable right. Article 11 of the said Declaration stated that, ‘The free communication of ideas and opinions is one of the most precious rights of man. Every citizen may accordingly speak, write and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.’

Article 19 of the Universal Declaration of Human Rights(UDHR) adopted in 1948 states that, ‘Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’

Today the right is recognized in international human rights law. The right is enshrined in Article 19 of the International Covenant on Civil and Political Rights (ICCPR), Article 10 of the European Convention on Human Rights (ECHR), Article 13 of the American Convention on Human Rights (ACHR) and Article 9 of the African Charter on Human and Peoples’ Rights (ACHPR).

John Milton argued that in addition to the right to express and disseminate information and ideas, it also encompassed the right to seek, receive and impart information and ideas.

History reveals that in Ancient Athens during the 5th and 6th Centuries BC, the democratic ideology of free speech evolved. Freedom of religion and speech were cherished ideals in the Roman Republic. In the 7th century AD, Caliph Umar in the Rashidun Period, first declared freedom of speech in Islamic ethics.

Article 14(1) (a) of the present (1978) Constitution of Sri Lanka provides that: ‘Every citizen is entitled to the freedom of speech including expression and publication.’ Article 3 asserts that ‘In the Republic of Sri Lanka sovereignty is in the People and is inalienable.’ Sovereignty includes the powers of government, fundamental rights and the franchise.’

Article 4(d) ensures that ‘the fundamental rights which are by the Constitution declared and recognized shall be respected secured and advanced by all the organs of government, and shall not be abridged, restricted or denied save in the manner hereinafter provided.’

Article 15 in 8 sub-articles sets out the restrictions on the aforementioned provisions in detail. Restrictions on fundamental rights, including those described above, may be placed in the interests of national security, public order, protection of public health or morality, racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation or incitement to an offence, national economy or for securing due recognition and respect for the rights and freedoms of others or meeting the general welfare of a democratic society. Thus it is seen that the fundamental rights of a citizen are not absolute but restricted.

Freedom of speech and expression

In the case of Sinha Ranathunga v. The State {2001}2Sri LR 172, The Court of Appeal held as follows: ‘What the Press must do is to make us wiser, fuller, surer and sweeter than we are. The Press should not think that they are free to invade the privacy of individuals in the exercise of the constitutional right to freedom of speech and expression merely because the right to privacy is not declared a fundamental right of the individual.’

It was further held that: ‘The law of defamation both civil and criminal is also geared to uphold the human beings’ rights to human dignity by placing controls on the freedom of speech and expression. The press should not seek under the cover of exercising its freedom of speech and expression, make unwarranted incursions into the private domain of individuals and thereby destroy his right to privacy. Public figures are not exceptions. Even a public figure is entitled to a reasonable measure of privacy.’

It is also important to note that the Court held: ‘The press is all about finding the truth and telling it to the people. In pursuit of that, it is necessary that the press should have the broadest possible freedom of the press. In other words there should be very limited control over the newspapers. Otherwise wrong doing would not be disclosed. Charlatans would not be exposed. Unfairness would go un-remedied. Misdeeds in the corridors of power in government and private institutions will never be known. However, with that great gift of freedom of the press, comes great responsibility. In other words the more powerful the press is, it should also be a responsible press which will not abuse the enormous power it has.’

Constructive criticism

Dr. Wickrema Weerasooriya in his speech titled ‘Self Regulation of the Media: Some Thoughts from Experience’ at the Sri Lanka Press Institute on September 6, 2011 quoted the Buddha as follows: ‘You, yourselves should strive towards perfection. The Buddha can only show the way’. ‘Similarly’ he said ‘my humble request to editors, journalists and others associated with the media is, you, yourselves should strive towards ensuring a free and socially responsible media. The Code of Professional Conduct and the Press Complaints Commission and all what it is doing can only show the way.’

Due to the efforts of the Free Media Movement and other concerned groups of journalists, Chapter XIX of the Penal Code containing Sections 479 and 480 dealing with defamation has been abolished by the Penal Code (Amendment) Act No.12 of 2002.

In 1998, the Colombo Declaration on Press Freedom and Social Responsibility was made. A revision was made in 2002, the year in which the Penal Code was amended to exclude the offence of criminal defamation. Lord Black of Brentwood, Executive Director British Telegraph Media Group and Former Director of the UK Press Complaints Commission in his foreword to the book titled ‘Other War – Sri Lanka’s recent struggle for media freedom.’ by Raja Weerasundera states, “It took many years, much sweat, toil and commitment, but in 2002, the government announced that criminal defamation would be abolished and the country’s media associations reciprocated by announcing that a self regulatory body, the Sri Lanka Press Complaints Commission would be formed.

While constructive criticism suggesting solutions to the problems that led to such criticism would be appreciated and respected by any right thinking person, destructive vindictive criticism would be harmful and should be rejected and despised at all times.

Here the five ‘C’s in journalism become relevant. The reporting should be clear, correct, concise, complete and consistent. Of course correctness in reporting encompasses that the truth must be stated without fear or favour. There is no doubt whatsoever that although the truth can be suppressed for sometime, it will finally prevail as stated in the Bhagavad Gita ‘Sathyam mevathu Jayathu’.

In conclusion, let it be said with Thomas Carlyle in Heroes and Hero Worship, ‘Burke said there were Three Estates in Parliament; but in the Reporters’ Gallery yonder, there sat a Fourth Estate more important than all.’ With the policies of the present President as indicated in the 100 day program, it is evident that the vistas of media freedom in Sri Lanka are expanding and would reach new horizons in the near future.