By Kishali Pinto Jayawardene | The Sunday Times
This is a pertinent question in the wake of recent arrests by the police of opposition web journalists under Section 118 of Sri Lanka’s Penal Code. This Section was however repealed in June 2002 by Penal Code Amendment Act, No 12 of 2002. Section 118 of the Penal Code relates to attempts to bring the President into contempt by contumacious or insulting words or signs and was repealed under the hand of the United National Front government along with the sections relating to criminal defamation.
Cavalier attitude to the law
When this unbelievably problematic police action was brought to the attention of the public not long after the arrest this week, all that government ministers could splutter about in Parliament was that there were other relevant penal code sections and that such a big to-do was not warranted.
Perhaps police actions under repealed penal powers may not be that astounding to this government which delights in flouting the law at its own whim and fancy. When the police behave as if there is no law at all in the land, resort to a repealed law is, after all, only a natural consequence thereof.
However, this cavalier if not laconic attitude to the legality of actions taken by the police is a good illustration of the way that we treat the law. This incident is therefore of high symbolic interest; essentially the law is at naught and even a repealed statutory provision may have the chance to shine again in the public limelight. And it is the rider to the question with which this column commences, in other words, the term ‘civilized’ that becomes of central importance to this discussion.
Resort to archaic penal code provisions
This brings us to the equally amusing spectacle of Sri Lanka’s Foreign Minister who, while overseas, engages in a labored justification of the website arrests by making the point that “There has been flagrant violation of ..rights” and “in order to comply with the applicable laws… actions in that case are necessary in exceptional situations” (see AFP, July 4th 2012). Certainly when citing the ‘applicable laws’ the Foreign Minister could not be taken as referring to a repealed law under which the police acted.
So let us see what precise provision of the law is being sought ex post facto as it were, to justify these arrests. In Parliament, the Leader of the House has reportedly cited Sections 115 and 120 of the Penal Code in support of the police actions on the basis that these pertain to ‘activities against the state. Section 120 of the Penal Code relates to exciting or attempting to excite disaffection against the President and the government or invokes hatred/contempt for the administration of justice or promotes discontent/disaffection/ill will/hostility among the people. This is, of course, a particularly favourite catch-all provision of this government, covering each and every action, serious and frivolous.
But if this legal provision is applied uniformly across the board, the first culprits would be government websites and more specifically the website of the Ministry of Defence in terms of that part of the statutory provision which pertains to promoting discontent/disaffection/ill will/hostility among the people.
Use of government press dinosaurs
Citing outdated and colonial penal provisions to restrain media is bad enough. However, an equally dangerous proposal currently being floated by this administration is to amend the Press Council law in order to monitor and regulate the web media. The Press Council, itself a veritable dinosaur which is packed by government supporters and as the private media has been consistently arguing, is currently constituted in flagrant violation of the parent law, would be the worst possible body to undertake these tasks.
What is needed is an independent media council with a happy mix of self regulation and appropriate laws restraining abuse by media. The possibility however of such a body coming about in this highly volatile environment of government intimidation and repression is as unlikely as the dinosaur itself being resurrected from extinction.
Need to return to legitimate free expression rights
Meanwhile, the Foreign Affairs Minister is also reported (in the AFP news report cited above) to have elaborated on the freedoms of the media in Sri Lanka by calling on critics to read the Sunday newspapers to see how the government is being criticized – and even abused. This is contemptible talk of the worst kind. This government’s record of the killings and disappearances of journalists is worse than any of its far from angelic predecessors. It cannot sweep all of these unexplained murders and horrific human rights violations by blithely citing the Sunday newspapers in support thereof.
In this country, public opinion commentators may write if they wish but at their own peril, always conscious of the invisible line which, if crossed, would result in inevitable consequences. The Minister in question may therefore be justifiably reminded of the fundamentals of constitutional jurisprudence with which he should surely be familiar, where the phrase, ‘chilling’ of the rights of free expression occupies centre stage.
There is little doubt that free expression in Sri Lanka has been ‘chilled’ to the most terrible extent ever. And in the final result let us not forget that the proliferation of websites, some of which engage in the most scandalous character assassination no doubt, is due to the government crackdown on legitimate media institutions, operating under the law but compelled to suffer the long whip of politicians due to undemocratic agendas. If freedom of expression and media freedom is returned to its due place in Sri Lanka today, the prominence given to mud-slinging websites will lessen. This will be the only cure.