For press freedom by Sunanda Deshapriya
Friday, July 24, 2009
By Basil Fernando
(July 24, Colombo, Sri Lanka Guardian) A publication in the Defense Ministry website accusing several lawyers, who appeared for one of the parties in a civil lawsuit, as traitors, was condemned by the president of the Sri Lanka Bar Association, and the International Bar Association’s Human Rights Institute (IBAHRI), as a serious attack that undermines the legal profession in the country. For a short while the publication was removed from the Ministry’s website. Later, the same publication appeared again, this time accompanied also by a letter from the Secretary to the Ministry of Defence, Gotabaya Rajapaksha, which was a reply by him to the President of the Bar Association. The Secretary to the Ministry of Defence justifies the publication on the basis that the government is free to express its opinion and to call these people traitors.
The Prime Minister himself, in replying to an opposition spokesman, who condemned the publication, stated in Parliament that these lawyers are in fact traitors. All this would have been considered comic in Sri Lanka itself when there was a more rational form of political discourse. However, as the country gets itself more distanced from the rule of law, the discourses become comical and even downright crazy. Despite the ludicrousness of these interactions, no one will be amused, as these publications are not meant to be jokes. The possibility of physical attacks following such publications is not a far drawn conclusion. Thus, what gives the discourse some seriousness is the possibility of some serious physical consequence that may arise due to these publications.
Still, the comic side comes out clearly when we look into the origin of all these publications. There is a civil suit filed by Gotabaya Rajapaksha (G.R.) against the editor of The Sunday Leader (S.L.). The editor has been assassinated and nobody knows who did it. G.R. wants the court to condemn S.L. for contempt of court because of some publication made in it after the court had made an order that the newspaper should not publish anything further that is defamatory of G.R.
S.L. wants to answer the charges of contempt of court leveled against it and seeks the legal representation of these lawyers. They agree and make their representations. It is this professional representation that is being described as treachery – an act of betrayal of the nation.
Describing legal representation as a betrayal of the nation is of course as comic as comic can be. Further, describing legal representation on behalf of a legal person, namely S.L., against G.R., as betrayal of the nation is as out of proportion as it can be. After all, G.R. is no more the nation than any other citizen of Sri Lanka. Before the courts, G.R. and S.L. are equals. They are both entitled to legal representation.
G.R., as the Defence Secretary, has control over the Defence Ministry website. This website is not under a private person’s ownership. It is an organ of the government, as the Ministry of Defence is also an organ of the government. In short, it is an official website and, naturally, the government is officially responsible for the publication. Therefore a publication in this website easily falls under an administrative act.
To claim that an official organ of the state can be used just to express an opinion only demonstrates how low the meaning of what is official has become in Sri Lanka. For example, the government may officially have quite a lot of money under its control. Any department will also have money that could be used for official purposes. If the money can be used in any way by the officials, then the very meaning of the term “official” evaporates. If the state property can be used in any manner, as any officer wishes, then the distinction between officers’ private property and the property he holds in his official capacity disappears. G.R . or anyone on his behalf cannot use the Defence Ministry website to express private opinions about G.R.’s case before the District Court. However, G.R., writing under the title of Secretary to the Ministry of Defence, to the President of the Bar Association, holds that he is free to publish any opinion on the website. Either he suffers from an incapacity to make a judgment on the basis of official responsibilities and law, or, while possessing that capacity, he prefers to make no distinction between what is official and what is private.
Whatever that may be, in the top levels of government there is a serious degeneration of exercise of judgment on very serious matters that concern the nation. When the top officials fail to abide by the most basic norms relating to making judgments in their official capacity, the very functioning of the state is being undermined.
Whether the Defence Ministry website will one day publish comics we do not know. However, the fact that website is used in the most ludicrous fashion already is obvious.