The reactivation, of the Press Council Law and the government-proposed Code of Ethics for journalists have to be viewed with great suspicion for many reasons. Ethics is beyond the realm of legal codification. Ethics is about moral principles that govern a person or a group’s behaviour. While some philosophers suggested that it should exemplify justice and charity, and benefit the person and society, others later introduced the idea that ethics entrains one’s duty towards others and respect for others. The attempt to encourage better ethics or behaviour amongst journalists, while being laudable cannot become coercive. Attempts to legalise ethical systems have been made by religious orders from time to time the world over empowering clergy to become the ethical police. Such systems have universally failed. A Code of Ethics for the media imposed by a government will of necessity make the relevant government ministry the ethical police. The recent Island newspaper editorial made the point “There is no difference in our book, between politicians extolling the virtues of ethics and prostitutes pontificating on chastity.”
No more need be said about politicians trying to enforce ethical conduct on journalists, while not being able to impose an ethical code on its own ilk.
Freedom of expression and the freedom to information are universally accepted values. The individual’s right to freedom of expression has had to be defended from time immemorial whether the threat was from the king or the ruling coterie in a republic. That struggle continues today. The media provides both information and expression of opinions for public consumption. The Judiciary and the media are the two keystones of our democracy. The subjugation of the Judiciary to the Executive as in the recent irregular and immoral impeachment of the Chief Justice is a part of our recent dark history.
Global comparison: The issue dominating media freedom today is not the problem of too much freedom. The country ranks near the bottom of the Press Freedom Indexes compiled the world over. The World Press Freedom Index 2013 – Reporters Without Borders ranks Sri Lanka 162nd out of 179 countries. The Committee to Protect Journalists (CPJ) ranks Sri Lanka fourth from the bottom, only better than Iraq, Somalia and the Philippines. The report states “But four years after the end of the nations long civil war, President Mahinda Rajapaksa’s administration has shown no interest in pursuing the perpetrators of nine journalist murders over the past decade. All of the victims had reported on politically sensitive issues in ways that were critical of the Rajapaksa Government”. The CPJ lists 13 journalists killed since 2005. The report states that the country has one of the worst impunity records, where impunity is measured by unresolved journalist murders as a percentage of the population. Freedom of the Press 2013 – Freedom House ranks Sri Lanka 164th out of 196 countries with the status “Not free”.
The murder of the Sunday Leader Editor Lasantha Wickrematunge in broad daylight by armed men near a security establishment on the outskirts of Colombo was the ultimate punishment to a journalist who dared challenge the regime. The numerous attacks on MTV/MBC who have reported fearlessly on the misdemeanour of Ministers, have caused the broadcasting station large financial losses. Even as recently as a couple of months ago there were more threats against MTV/MBC. The burning of the Uthayan newspaper as well as the attack on its Editor and sub-editor occurred during the post war period. Rather than the vilification of the media because of the errant conduct of a few of its members, there must be a remembrance and celebration of the achievements of journalists and media institutions that have suffered in the interests of keeping democracy alive.
Code of Ethics or censorship: An imposition of a Code of Ethics is in some respects worse than press censorship. When a government-appointed censor blocks out the words of a writer and kills the spirit of expression, the public are aware as to who is responsible for curbing the human spirit while the writer is protected from lawsuit and its consequences. But a Code in the guise of an ethical code is like the sword of Damocles which will hang over the journalist who will have to answer not to his conscience or the collective conscience of his profession but to the objectives of a government as described in the Code. Curbing the journalist’s right of expression and his responsibility to report to the public through the threat of punishment is more damaging to the public cause than state imposed censorship. The journalist is a professional as is the accountant, the banker, the doctor and the lawyer. Most professions have self-regulating Codes of Ethics. They are important. The professionals need to be constantly indoctrinated regarding their own professional Codes so that they and society become collective beneficiaries. When legal luminaries succumb to the pressures of the Executive, they are in violation of their own ethics; when auditing firms are not exacting on the financial and accounting practices of State owned Enterprises, they are in violation of their own ethics, when doctors participating in the procurement of goods and services for the Health Ministry are financially corrupt – they are in violation of their own ethics. Then a government-sponsored Code of Ethics is legislated for such professions? Undoubtedly the media is the fourth estate of our democracy. Therefore media ethics is of paramount importance. But self-regulation of the media as in other professions is the way forward. As in other professions where injury and hurt to others in society occur, civil remedies can be sought. A self-regulating media could also expel its own members as other professions do when their respective Codes of Conduct are violated.
The public interest: The public interest is not necessarily synonymous with the Government’s interest. The development of a media Code of Ethics should be in the public interest and to protect those who are vulnerable. The public interest is defined in the Code of Professional Practice (Code of Ethics) of the Editors Guild of Sri Lanka adopted by the Press Complaints Commission of Sri Lanka as “Protecting democracy, good governance, freedom of expression and the fundamental rights of people and of keeping them informed about events that would have a direct or indirect bearing on them, and that of their elected Government, and detecting or exposing crime, corruption, maladministration or a serious misdemeanour; protecting public health and security and social, cultural and educational standards; protecting the public from being misled by some statement or action of an individual or organisation”. The protection of children, the abuse of the dignity of women in advertising, consumer protection and the exclusion of incisory hate-speech on race, caste, nationality and creed may be included in a Code of Ethics.
However, clauses to prohibit the questioning of the Executive, the Legislature or the Judiciary will weaken the check on the most powerful branches of government. Contempt of the judiciary or defamation of individuals can be dealt with within the legal framework with costs to the media. The government-proposed Code of Ethics goes as far as to restrict criticism affecting foreign relations and encouraging superstitious and blind faith. Who is to judge whether Sri Lanka’s external relations have been affected by the writings of a journalist or by the intemperate utterances of Parliamentarians. It is widely believed that Sri Lanka’s foreign relations have been in disarray for quite some time. On most significant issues different Ministers and institutions have expressed a range of views. Professional diplomats have been wondering which particular stance is the official foreign policy stance of the Government. In such a chaotic foreign policy environment the journalist will become the whipping boy of the regime. The country is engulfed with superstition and blind faith. There is no major decision that is taken without consulting an astrologer – from the auspicious time to hold an election to the moment the budget speech should be delivered in Parliament. The rationale to restrict journalists from reporting superstitious and blind belief in a country like ours is beyond comprehension.
Right to information: The freedom of expression is empty without the freedom of a citizen to obtain information pertaining to matters concerning one’s life and government. The principles of transparency and open government require the right to information. India, Pakistan, Bangladesh, Nepal, the Maldives and Bhutan have either a Freedom of Information or a Right to Information Act empowering their citizens. That makes Sri Lanka the only country in South Asia to deny its citizens this right – a right incidentally that the citizens of Scandinavia have enjoyed for over a century. A move by Karu Jayasuriya to introduce a Right to Information Act as a private members’ motion was defeated by the government on the basis that the Government intends to bring in a Right to Information bill. This promise is unlikely to see the light of day judging by the Government’s attempt to suppress even partial information that is now available.
Restrictions imposed on the media should be confined to the exceptions permitted under article 19 (3) of the International Convention on Civil and Political Rights (ICCPR). The restrictions are for respecting the rights or reputations of others: for the protection of national security or public order or public health or public morals. In times of an emergency which threatens the life of the Nation, the existence of which is officially proclaimed, such measures must not be inconsistent with our obligations under international laws.
A guided democracy: How does the Government intend to enforce such a code on the private media when the behaviour of the state-controlled media at present abounds in defamation, slander and baseless reporting? Will the same guidelines and standards apply to the state press? Who will be the watcher of the state media while the Government monitors the private media’s adherence to the proposed guidelines? What will be the consequence of non-adherence to the Government guidelines?
On what moral basis is the Government contemplating further state regulation when the true need is for the state to get out of the way of the free press, stop leaning on submissive editors and publishers, and stop buying newspapers and channels that it cannot intimidate into submission?
The Press Complaints Commission of Sri Lanka (PCCSL) together with the Editors Guild and the Sri Lanka Press Institute undertake to ensure that newspapers operating in the country abide by certain basic ethical standards. Nearly all newspapers in the country are signatories to the PCCSL guidelines. It was an initiative of the media fraternity to raise reporting standards and prevent litigation against newspapers. The PCCSL acts as arbiter between newspapers and victims of erroneous reporting. It has successfully mediated to prevent confrontation and litigation in many cases. So why have a state-controlled Press Council?
The UNF Government of Ranil Wickremesinghe repealed criminal defamation and attempted to enact freedom of information laws. The Press Council Act revival is the first step towards re-enactment of these oppressive laws. The Government has mooted the return of criminal defamation laws to further muzzle the free press. A subservient Judiciary will now ensure state media is insulated from the danger of the laws while the independent media will hesitate to report. A free press and independent Judiciary are the enemies of totalitarianism. The attempts at subjugation of these two vital democratic organs offer the best clues to the direction the incumbent regime is taking. During President Suharto’s regime, Indonesian democracy was known as a ‘guided democracy’, a euphemism for a totalitarian state!