FREEDOM OF EXPRESSION SRI LANKA

For press freedom by Sunanda Deshapriya

Don’t cringe; stand up for what is right: Top judge tells journalists

Weeramantry J. says Freedom of Information Act urgently needed
Judge Christie Weeramantry was the Chief Guest at the recent Annual Journalism Awards for Excellence programme conducted by The Editors’ Guild of Sri Lanka and the Sri Lanka Press Institute. A former vice president of the International Court of Justice in The Hague, one-time Supreme Court judge in Sri Lanka and law professor at the Monash University, he has written extensively on media issues, especially in his book ‘Justice Without Frontiers’. Here he shares some thoughts on the law and the media with Chandani Kirinde winner of the B.A. Siriwardene Columnist of the year (English) Award

I want to draw attention to a media that would be an example, because once you have a journalistic profession which is of a high standard, it commands the respect of the general public. If the journalistic profession attracts respect, then its influence becomes so much more. Freedom of expression was won after a long historic struggle. So it needs to be protected. This is done by journalists themselves maintaining high standards.

I have had so many concerns about the media. One is the need to maintain standards. Secondly when you look at the legal history of the evolution of the freedom of expression, it was started by a desire to give the small voices a right to be heard. But now what has happened is that huge cartels have arisen and these are swallowing up the smaller media.
Judge Weeramantry: Freedom of information an essential element of a democracy. Pic by J. Weerasekera

As a result, the smaller media are getting more stifled and the bigger ones are getting the monopoly of expression. And they are growing on the right that was clearly evolved for small people to make their voices heard. They are so powerful that they have even governments in their control. They are the ones who are now relying on freedom of expression. What results is a distortion of news because they are on the side of capital. They give a view of events that propagates their business interests. That can happen in a small country even more so because the cartel can easily swallow up the smaller media.

One of my criticisms of the media is that they go in for sensationalism. You open a newspaper in the morning and you find the bloodiest crimes on the front page. In every community there are great self-sacrificing individuals who have done wonders for their community. These are things that should be highlighted. Sadly, what tends to be highlighted is bad news.

In the International Court of Justice, about 90 percent of the decisions we give are honored. In the ICJ we didn’t have one soldier or one policeman to enforce our orders but when we give an order, it is binding even on a powerful army. There was a case between Libya and Chad over the Aouzou Strip. The Libyan army and the Chad army cannot be compared.

Libya has a powerful army. It marched into Chad and was occupying the Aouzou Strip. Chad came to the court and as Libya had also agreed to the jurisdiction of the court we heard the case in great detail. We said that the strip that Libya had occupied belonged to Chad. Here, the ICJ, without a single soldier, told the powerful Libyan army that it must get out of Chad. The two countries agreed on the date and the Chad flag was ceremonially hoisted and the Libyan army withdrew.

Next day, there was not even one line in the international media. It should have been blazing headlines as international law had been obeyed. Hardly anything appeared but if Libya had violated the order of the court, it would have hit the headlines.

The same happens domestically and it needs to be corrected by some kind of journalistic code of ethics and instructions which the journalistic profession needs to formulate.

You have freedom of expression and the International Covenant on Civil and Political Rights (ICCPR) to which we are a party. It guarantees freedom of expression. So there is a national obligation to give freedom of expression. International law, contrary to what some people have expressed, my personal view is, it is a part of our law.

There is a monistic theory and the dualistic theory in law. The monistic theory says that there is one system of law which applies to the whole world. The dualistic system says international law is one system and domestic law is another. My view is we are moving rapidly towards a situation of one Planet Earth which is our common little home and we have to move towards being one human family. So it’s the monistic system and it should have one set of rules governing all.

This was beautifully put in Hindu literature .The Bagavad Gita says; The ultimate authority, sovereign of the world is not the chakraverty or a physical ruler but the kingless authority of the law. It’s a beautiful description of the international law reigning over the whole world. That is what we have to strive towards.
Judge Weeramantry also gave his views on the following specific issues;

* THE RIGHT TO INFORMATION LAW

I feel very strongly there should be laws giving right to information. That is essential in a democracy. Government is a trust and if you are a trustee you have been given power for the benefit of the beneficiary. The beneficiary is entitled to know what you are doing with his or her assets. So there should be full transparency and right to information in relation to public assets.

For example if there is some big amount of public money being spent, the people are entitled to know how much was spent and for what it was spent. Likewise if assets are coming in what are the sources of these assets and on what terms and conditions do they come.

I think freedom of information is an essential element of a democracy. The ultimate governors are the people and they are entitled to know everything about their assets.What comes into the public treasury and what goes out are their concern. Democracy depends on knowledge. If there is no knowledge of what is taking place, you can’t make a proper decision. We should take steps urgently to have a freedom of information act and that would be in accordance with democratic traditions.

* DEFAMATION LAWS THAT YOU SAY “INHIBIT” THE MEDIA

These laws, of course, are basically for the protection of the people. The media have to function within the legal framework. But it is a fine-tune thing. In instances like this the media groups and the Bar Association should get together and discuss that.

* MEDIA’S PARTICIPATION IN THE FRAMING OF LAWS RELATING TO THE MEDIA

Whenever a law is passed concerning any particular area of interest those within the area (the stakeholders) should be involved in the discussions. That is part of the law reform process. You can’t make laws in isolation of the constituency it is going to serve.

* THE STATE’S ROLE IN FREEDOM OF EXPRESSION

Freedom of expression should be protected by the legal system. If anyone tries to tamper with it, the legal system is there to protect it.

* IS THAT WHAT YOU SEE IN SRI LANKA?

One does not know. But in every country there will be different opinions on that. The legal system has a duty to protect the freedom of expression, whether it is the freedom of a poor villager or of the most powerful person. They all enjoy this freedom under the international human rights laws and international covenants. A legal system that is committed to a proper observance of international law has to protect that. We are a party to the ICCPR and that means that it is a State’s obligation to ensure that we comply with it. Unlike the Universal Declaration on Human Rights, which was only a statement of aspiration, a covenant is a pledge by the government; so it is a contract — a treaty. So the government has to obey that.

I have written on several national failings. We have some terrible national failings. They include cringing before authority, sweeping problems under the carpet, lack of transparency and lack of discipline, bribery and corruption and lack of respect for law and order.

* ONE SUPPOSES THIS CRINGING BEFORE AUTHORITY IS RELEVANT TO THE MEDIA AS WELL?

The media are independent and they ought to be able to express independent points of view. In a democracy that is always so. So the media should not be cringing.

* BUT IN GIVEN CIRCUMSTANCES?

They should be able not to do so, if they follow all the principles I have mentioned. There is no need to cringe. Stand up for what is right.

http://www.sundaytimes.lk/100815/News/nws_42.html

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