Although media freedom is considered to be an essential ingredient of a democratic political system, Sri Lanka today is amongst the group of countries with the least amount of media freedom according to accepted standards. However, what the media Minister Dharmasiri Senanayake said at the press conference summoned by him soon after the PA came to power was that government could be considered to be one brought to power mainly by the media. The PA’s election manifesto contained a large number of very alternative proposals about reforms which the PA would bring in for the purpose of ensuring media freedom. Of those promises the only one which the PA government has so far fulfilled is the one about reforming the law about parliamentary privileges. However, instead of abolishing the law of criminal defamation, the present government will go into history as the one which has instituted the largest number of court cases against media personnel.
The number of court cases so far filed under the PA government against newspaper editors is twelve. One of these was against Sinha Ratnatunga, Editor of The Sunday Times. Another was against the Island Editor, Gamini Weerakoon. Two cases each are instituted against the Sunday Leader Editor Lasantha Wickremathunge and against Bandula Padmakumara former Editor of the Lakbima. Six cases were filed against Ravaya.
Cases have been filed against these editors on the allegation that they had defamed the president. In two of them the high court found Mr. Ratnatunga and Mr. Wickramathunge guilty. Although Mr. Padmakumara was acquitted by the high court in the case instituted against him, the government appealed against that judgment. That indicates the extent of hatred the government had for editors who publish anything bad about the government.
In a case of criminal defamation the evidence given by the person so defamed is considered to be vital. However, the president did not give evidence in any of these cases. On the other hand, although the president has made controversial public statements about editors who were not to her liking, those editors had no way of going to courts against her. This shows that the principle that all are equal before the law does not apply always.
Although the Editor of The Sunday Times appealed to the Court of Appeal against the judgment of the high court it was to no avail. The judgment of the appeal court was condemned by Article 19 which functions as an advisory institution of the UN on freedom of expression.
A fundamental tenet of the civilized world is that only the civil law and not the law of criminal defamation should be employed against media persons who have committed defamation. That is why many countries in the world have abolished the law of criminal defamation. The theorists who want to defend the law of criminal defamation often say that what is good for England cannot be bad for Sri Lanka. Here we may say that on the one hand, the provisions employed in England in enforcing the law of criminal defamation are different from those employed in Sri Lanka, and that, although the law of criminal defamation has not been formally abolished, England has abandoned for more than two decades the employment of that ancient, out-of-date law against Media persons.
However, in 1990 the Attorney General’s Department in England attempted to employ it to protect Salman Rushdie who was respected by the English people. That was against the video film ‘International guerrillas’ produced in Pakistan in a manner that defamed Salman Rushdie. The Attorney General’s Department in England had to give up the idea when Salman Rushdie declared in public that he could go before the courts and give evidence in support of the reference if the law of criminal defamation was used to protect him. The Attorney General in England, unlike Sri Lanka’s, cannot use the law of criminal defamation to serve the narrow interests of the government. In Sri Lanka the final decision as to whether a person should be prosecuted under the law of criminal defamation is taken by the Attorney General. However, in England the Attorney General alone cannot take that decision at his own discretion. He has to go before the high court and seek its approval for prosecution after proving, that there had been a defamation serious enough to deserve prosecution.
The contemporary world considers that criticisms of persons associated with the administration of the state by the media more and more is an essential condition for the health of democracy. In the civilized world there is no judicial tradition which punishes media persons simply because an exposure of a state administrator or a politician connected with state administration contains material which is not true and therefore is defamatory of the said state administrator or the politician.
Today the civilized world also considers that when a report published is wrong, it is an essential condition to prove that the media person concerned wrote it knowing that the material contained in the report was untrue. This principle for the protection of media persons was first established in 1964 in the case New York Times Vs. Sullivan.
Shortly after the PA government was formed in January 1995 a committee consisting of R.K.W. Goonasekera (Chairman), Shirani Bandaranayake, Rohan Edrisinha, Jayampathi Wickremaratne, K. Javid Yusuf, Victor Gunwardena and Lucien Rajakarunanayake were appointed to find out what legal reforms were necessary to ensure media freedom, and to make necessary recommendations. The report containing the recommendations of that committee was handed over to the media minister on May 27th 1996.
The recommendation of the committee was that the law of criminal defamation should be abolished or the procedures must be brought to the level of those existing in England so that there would not be any room for arbitrary prosecution. However, instead of implementing the recommendation of that committee, the government appears to enjoy hunting media persons by means of outdated laws. According to the principles set out in international agreements that Sri Lanka has entered into, in this sphere, there is no legality in the cases filed against newspaper editors.
Although it may be possible to find all these editors guilty under the law of criminal defamation, the government will have to be ashamed if any of these editors go before an international court some day.