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Any nation’s media would be hard pressed keeping track of a landslide of political change, environmental crises, imminent constitutional reform and a general election, all while keeping safe from a generation of assassins used to impunity.
When the media itself needs reform too, the problems might seem overwhelming. This is why Sri Lanka needs a constitutionally recognised national commission to oversee that reform and ensure freedom of expression is properly defended.
Maithripala Sirisena’s unexpected and virtually peaceful election win over incumbent President Mahinda Rajapaksa was quickly painted as a game changer for the country’s media.
He and new Prime Minister Ranil Wickremesinghe began well by lifting blocks on independent news websites banned by the old regime. Exiled journalists were urged to return. Sirisena also promised to use his new authority to investigate the 2009 murder of combative political journalist Lasantha Wickrematunge, whose killers are still free.
But the early offers soon began to look token. There was no matching commitment to identify the killers of cartoonist Prageeth Eknelygoda, who went missing five years ago, or the men behind the notorious “white van” abductions of peaceful activists. In fact Sirisena’s commitment to media freedom looks somewhat qualified.
A series of special expert commissions will be established to oversee an independent review of the judiciary, police, public services, elections, human rights and anti-corruption measures, written into authority by a 19th amendment to the constitution. Pointedly perhaps, the list does not include a commission on the media.
Plans for an independent media commission are not new, and were excluded from what was eventually enacted as the 17th amendment to Sri Lanka’s Constitution in 2001. Media rights groups should steel themselves for a fight to ensure that the much-needed body is not excluded again.
Uvindu Kurukulasuriya, editor of the once banned Colombo Telegraph, thinks it unfortunate that the new government will not establish a media commission, but thinks it was deliberate. “They are not willing to transform state media into (independent) public service broadcasters, and they don’t want to broad-base (collectivise) the state owned Lake House newspaper group.”
The journalist and legal scholar Asanga Welikala calls for the founding of an independent media commission on the recommendation of the constitutional council and representing working journalists, academics, proprietors and new media.
“The commission once constituted would have overall oversight of public service media and would be answerable to parliament,” he argued for the online political journal Groundviews. “Its primary role would be to oversee the public service media institutions, but may include other powers and functions, including the regulation of the (new and traditional) media marketplace, and to promote the freedom of expression in all its forms including through new technology.”
Kurukulasuriya urges action to break the grip of the political appointees heading the country’s major public and private media companies. The co-option of the owners was the subtler side of the old regime’s system of media control, he says. “The previous Rajapaksa regime changed the ownerships of several media institutions through intimidation.”
Self-censorship drove the majority; more deadly means of censorship were reserved for the small cadres of independent journalists who could not be bought or fired, says Kurukulasuriya. Will the government go on reading “media freedom” as owners’ rights, not journalists’ rights?
Reforming the Sri Lankan media is a vast task. The counter-intuitively named Independent Television Network needs privatisation and the nominally public Sri Lanka Broadcasting Corporation (SLBC), and the Sri Lanka Rupavahini Corporation (SLRC), need a proper public service broadcast mandate and an end to political interference. A constitutionally mandated media commission could appoint and “audit” the works of a new independent broadcasting authority founded to oversee their works.
There is justice still to be found too. According to the Committee to Protect Journalists (CPJ), Sri Lanka has the fourth worst record on its 2014 Impunity Index, which spotlights countries where journalists are murdered and the killers remain free.
In an open letter to Rajapaksa on the eve of elections, Wickrematunge’s widow Sonali Samarasinghe wrote: “At no time in the history of our country has the freedom of expression so brutally been repressed as it is now. Such media as do operate in the country, have been transformed either into propaganda mouthpieces for you and your brothers, or bullied into submission.”
The state media’s job is to “reflect the line of whatever government is in power,” admitted Rajpal Abeynayake, the editor of the state-run Daily News in a memorable post-election quote to The Guardian’s Amantha Perera. “If the government changes, so does the newspaper. It’s as simple as that. If they want to change that practice they could, but so far no government has done it.”
That Sirisena is showing little inclination to substantively change matters. Bandula Padmakumara — the chairman of the Lake House newspaper group, morning news show anchor and well documented supporter of the Rajapakse family — went just a few hours after the election results came in. But few others have followed.
The new president may have to rely on established partners in self-censorship to help shore up his “fragile, sprawling and diverse” coalition, as the New York Times described it. With parliamentary elections set for late April under Sirisena’s 100 day schedule, the campaign may see old favours be called in and the media expected to help paper over the coalition’s cracks.
Without greater independence the Sri Lankan media will not be able to fairly and accurately report the campaign. International and regional media rights groups need to heap pressure of their own on Sirisena’s new media ministry secretary, Karunarathna Paranawithana, who describes himself on his Facebook page as a “diplomat, journalist (and) political activist”.
The appointment of a constitutionally recognised commission for the media next month would not do much to change the situation in time for the election, but it would send a clear message to embattled journalists that change was on the agenda and risks were worth taking.
According to Sirisena’s own strict timetable, his administration will establish the independent commissions on Wednesday 18 February. There’s still time to add one on media to the list.
You can find support for the public’s right to access official information in the strangest places. Like a private EU policy paper draft. As leaked to and published by the whistle-blowers’ website Wikileaks.
The European Union’s Guidelines on Freedom of Expression Online & Offline started with NGO consultations, but the EU’s top working group on human rights (COHOM) wanted the final drafting work done behind closed doors. Wikileaks thought different and released a leaked draft last month.
Designed to set Europe’s agenda for freedom of expression and media rights, the original draft as leaked promised an EU commitment to the right of access to official information of all kinds. But you won’t find the pledge in the final version, as released by the EU in Brussels last week. It’s been cut.
Not one of the nine new priority areas for EU legislation listed in the final version guidelines supports the adoption of right to information legislation. The document also excludes promotion of access to information rights from its list of “Priority Areas of Action”.
The key deleted reference, Paragraph 14 in the version published by Wikileaks, summarised the principle as the “general right of the public to have access to information of public interest, the right of the media to access information and the right of individuals to request and receive information concerning themselves that may affect their individual rights”. These lines were cut in their entirety.
The original text was in line with an emerging European political and legal consensus that the right to receive official information implies that a state has a positive obligation to make that information available to them. The guidelines have been firmly steered in the opposite direction.
In London, experts blame their own government for setting a bad example. The UK government argues that citizens have the freedom, but not the right, to seek and receive information. On that basis it rejects the idea that there is a positive obligation on its officials to make information available to citizens, only that they should have a good reason for not doing so.
“I’d say that the UK government continues to deny that there is a right to information in any form,” says David Banisar of the free expression rights advocacy group Article 19. What’s changed, he says, is that UK courts are beginning to interpret UK common law in the same way as the European Court in favour of the general principle of a right to request and receive official information.
This threatens the legality of the UK’s habit of giving certain officials immunity from Freedom of Information Act requests under UK common law, even where this is incompatible with European law, as the UK Court of Appeal concluded last month, finding that Attorney General Dominic Grieve acted unlawfully by denying public access to Prince Charles’ official letters to government ministers.
In a similar but separate case Times journalist Dominic Kennedy appealed to the courts when the Charity Commission, the agency that monitors charities in the UK, refused his request under the country’s Freedom of Information Act to see paperwork from its inquiry into the management of maverick politician George Galloway’s Mariam Appeal for Iraq. Last month, after seven years’ deliberations, the courts cleared the way for the Commission to hand over the papers – though they have yet to do so, and it may still take a judicial review to make them.
The ruling in favour of the Times in March came with a similar string of citations from European Court (ECHR) cases that are comfortably in line with this new direction for UK common law. “You can ask for information from a public authority just because it is a public authority and it should act in the public benefit.” Kennedy told the UK Press Gazette after his win.
Kennedy’s lawyer Rupert Earle of Bates Wells Braithwaite says that while the ECHR rulings clearly favour openness, the court’s principal chamber has yet to definitively state that public bodies have a default obligation to provide information, subject to the usual provisos on privacy and security. It was, he thought, only a matter of time before it did though.
But even if the ECHR isn’t yet definitive on the issue and the UK courts take their own line, it isn’t a reason to block efforts to mainstream access to information rights in EU free expression policy.
A number of free expression rights groups have expressed dismay. Most were initially consulted on the paper before the EU took drafting behind closed doors. They say the guidelines as they stand not only fail to recognise the right to access to official information, but also that this right is a key element of freedom of expression rights – seriously undermining the guidelines’ effectiveness.
They are calling on the EU to reconsider the guidelines and address these concerns. “We do not believe the (Guidelines on Freedom of Expression Online & Offline) are complete without a clear reference to the right to information and a commitment to priority action in this area,” said the groups in a letter signed May 21, 2014 by nine groups, including Index on Censorship.
The only reason why we know the EU has cut support for reducing official secrecy is thanks to Wikileaks. That irony alone suggests that there should be a few more gates in the wall surrounding the EU’s secret garden of information.
Citizens who wanted more information from their government, the courts and the scores of quangos that influence our lives, would have benefited had the EU guidelines been allowed to recognise the principle that the right to information should be the default start point, limited only when prescribed by law and “necessary and proportionate” to a legitimate aim. The EU needs to put things right.
“Tunisians are clearly aware of the heavy responsibility they hold with regard to the future of democracy in the region. They do know that the entire world is watching carefully, that their success, or failure, will have a significant impact in the Arab world. It is here, indeed, that the democratic renewal of the Arab world is unfolding.”
— Journalist and human rights activist Sihem Bensedrine From the anthology, Fleeting Words, edited by Naziha Rjiba, published in cooperation with PEN Tunisia and Atlas Publications, with the support of Index on Censorship and IFEX.