Insurance Ombudsman Dr. Wickrema Weerasooria, a celebrated lawyer, legal academic and author of some twenty legal texts, who served in several senior public-sector positions and was also Sri Lanka’s High Commissioner to Australia and New Zealand, states that regardless of who wins next Thursday’s presidential election, race relations and media freedom must be given priority in the next government’s agenda.
I have followed Sri Lankan politics closely for the past 45 years and also held public office during much of that time. As you know, I have also had a very close association with the law and with legal issues. In these contexts, looking back, I feel that two vital issues we need to address through law and political reform are the issues of racial harmony and media freedom.
Article 12 of the Constitution says that ‘No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds’. But the problem is that such constitutional guarantees, the ones we refer to collectively as ‘fundamental rights’, are very difficult to enforce. Only the Supreme Court can adjudicate on cases in which these rights are claimed to have been infringed. But it is difficult for an ordinary citizen to go before the Supreme Court. In many cases the discrimination, though painful to the victim, may seem too trivial to take all the way to the highest Court in the land.
Say a Tamil-speaking and Sinhala-speaking person have a civil dispute, for example about a shared property boundary. They wish to take the matter to the police and make statements. If the local police station has no Tamil-speaking officer, it is impossible for one of them to do so. Even if a translation is recorded, he has no means of knowing what the contents of his statement is. The Tamil-speaking complainant thus clearly suffers discrimination. But surely this is not a case for the Supreme Court?
The Supreme Court should be a Court of last resort, not a Court that hears routine cases. The Supreme Court is also circumscribed by not having the same procedures as lower Courts, for example, the ability to summon witnesses and open them to cross-examination by counsel. Also, many cases in which racial or other discrimination occurs could be resolved through mediation or conciliation, or the revision of administrative procedures. A softer, more constructive approach is likely to be more effective. It was the late Appapillai Amirthalingam who pointed out that the problems faced by Sri Lanka’s minorities fall into two categories: grievances and aspirations. Grievances are issues faced by ordinary people on a day-to-day basis and must have faster means of resolution than a Supreme Court case. Aspirations, on the other hand, are matters for the political process to deal with. What he meant was that politicians are interested primarily in aspirations, whereas what ordinary people have to deal with are grievances.
Our Human Rights Commission has no teeth. I would suggest the establishment of a more powerful body such as Britain’s Equality and Human Rights Commission. This is a powerful, independent body that is empowered to give orders to individuals and institutions that infringe basic rights, and to prosecute those who do not comply or commit serious offences. It is a very successful institution with which I am familiar and know of its proceedings first-hand. It is able to deal promptly with most grievances before they go to Court, and even to issue legally-binding injunctions. The Commission can even conduct its own investigations. It is a good model for Sri Lanka, but we can also take inspiration from similar institutions created in countries such as the United States, Australia and Canada.
There is no question that media freedom in Sri Lanka has been seriously eroded during the past few decades. In part this was because of the emergency precipitated by the LTTE’s terrorist activities. But even before that, governments used pretexts such as the JVP insurrections of 1971 and 1987 to curb the media, through censorship and on occasion even sealing presses. And in many cases, governments were doing these things to prevent the people from knowing the true facts about governmental mismanagement, abuse or corruption. But in recent years the degree of suppression has become altogether intolerable, with journalists such as Lasantha Wickrematunge and Prageeth Ekneligoda being assassinated or simply being made to disappear.
Article 14 guarantees freedom of expression. But this guarantee also has no teeth. And these teeth need to come from two sides. One is the legal safeguards. But more important should be the unwillingness of the people to accept anything but the freest media in the world. A free press is something a free society has to continually fight for: no government allows it willingly. In the wake of the phone-tapping scandal in the UK in 2011 the News of the World had to be closed down by Rupert Murdoch, not because of government action or a Court order, but because of public pressure. And even in that case, despite members of the media having committed the most serious offences against ordinary people, the British people and their government were loath to introduce laws to curb the media. They thought about it, but eventually decided against it.
When Subramaniyam Sugirdharajan was murdered in Trincomalee, many Sinhalese shrugged it off on the grounds that he was a Tiger sympathizer. When Sampath de Silva was brutally shot dead, they said he was critical of the military. The issue is not what journalists might have said: it is their right, I would say their duty, to say it. Even today, I often hear people say they have little sympathy for Lasantha because he was a mud-slinger, which he certainly was not. But they do not realize that with every journalist who is killed, assaulted or intimidated we all of us lose a part of our freedom. The issue is not that we should like or even agree with everything a journalist writes or says: our duty as a free and independent people is to protect him or her even if we don’t agree. A lot of the corruption and abuse we see in Sri Lanka today is a direct consequence of the media being intimidated. Editors impose self-censorship because they fear consequences, be it a loss of advertising revenue or a knock on the door at night.
What is the point of legal safeguards in an atmosphere where when a journalist hears a knock on his door at night he is afraid to open it? We need to remember that between 2002 and now Sri Lanka has sunk from number 51 in the World Press Freedom Index to number 165, and that is out of 180 countries. Even Zimbabwe, well- known as a failed state and brutal dictatorship, is ranked above us, at 135. All 15 countries worse than us in this respect are dictatorships. At the end of the day people get only as much media freedom as they are willing to fight for. Laws can do very little to help.
Reform must come from the very top. The President himself – whoever that might be – must lead and open his life and his actions to the scrutiny of the media. Every public official must recognize that he is accountable to the people: when he seeks elected office he relinquishes the right to privacy. Otherwise don’t go into politics. If the media oversteps the mark, the libel and slander laws are available to all. I feel the law as it stands is sufficient: What is needed is some humility from politicians, who must come to terms with the fact that they are ordinary people like you and me, not Gods.
Sri Lanka’s next President, no matter who wins, must first bring his ministers down to earth. Make them accountable, as he himself should be. And a good place to start is to prevent politicians bullying the public on the highways, breaking the road rules with sirens, lights and convoys. This is a good indication of things being wrong with a government. There is no security threat to ministers now, and they should go about their business like ordinary people. However, I have yet to hear either of the presidential candidates voice such a view.
The recent campaign raised many issues. The cost of living, care of the poor and differently abled sections of our society, corruption, wastage, nepotism, rule of law, judicial independence and so on. However, since the campaign has closed, it is not correct for me to discuss these issues. But I think the two issues I raised here, that is the strengthening of communal and racial harmony and the freedom of the media, are not controversial. I doubt if any politician would dispute me on this. Further, as a teacher of law, I want to add that Sri Lanka’s common law recognizes the multi-religious, multi-racial and multi-ethnic nature of our society. For example, Kandyan law is available for the Kandyan people, Thesavalamai for the people of Jaffna and elements of Sharia for the Muslim community. In other words, our legal system already reflects our inherent diversity, so there is nothing new in this. Without racial harmony and media freedom there is no hope of Sri Lanka ever progressing to the level of socio-economic pre-eminence it seeks.