SRI LANKA: Targeting Freedom of Expression

"It is clear that the freedom of expression and opinion is a fundamental right, the mother of all rights."
- Abid Hussain, UN Special Rapporteur on the Freedom of Information, Speech in Sri Lanka, 1999.

A notice has been issued by one D.M.S, Dissanayake as the director/registrar of the NGO Secretariat in a letterhead of the Ministry of Defence and Urban Development warning the NOGs that they are acting beyond their mandates by conducting press conferences and workshops, training journalists and disseminating press releases. It can be inferred without any doubt that this warning has been issued at the instance of the Defence Secretary himself and being fully aware that there are no such mandates issued on NGOs by any law. Mandates are directed against the State by the Constitution to protect the fundamental rights of the people in Sri Lanka and civil society organizations formed by them.

The NGOs or non-governmental organizations which are civil society bodies are bound by their constitutions, articles of association and agreements. They have been recognized as actors in international relations. The NGO Secretariat which is under the Ministry of Defence and Urban Development in its Legal Authority provisions, section 10 provides , 'Where in respect of a voluntary organization registered under this Act, any allegation of fraud or misappropriation is made by any person, the Minister may refer such matter to a board of inquiry by a panel appointed by him and when such board after an inquiry reports its findings to the Minister(section14) he can take appropriate action on the findings of the report. If the report reveals any misappropriation or fraud, criminal proceedings can be instituted against the culpable individuals holding office in such NGOs. Such a procedure could be taken even under the ordinary criminal procedure of Sri Lanka. Once, during the Chandrika Bandaranaike regime, an investigation was initiated against President Rajapaksa too in respect of activities of an NGO named 'Helping Hambantota' in which he was an office bearer. But the then Chief Justice Sarath Silva prevented the continuance of the investigation on an application made on behalf of MR.

Mandates of Sri Lankan NGOs vis-a-vis the freedom of expression and assembly are stipulated in Article 14 of the Constitution as a Fundamental Right and Article 15 provides how these mandates could be restricted. There are no other limitations on the activities of civil society organizations. There is no power, person or institution who or which can go against those mandates enshrined in the Supreme Law of the Land. If anyone is trying to issue orders like the warning issued by the Director/ Registrar MOD, whether it emanates from even the Defence Secretary, how powerful he may be, it is unconstitutional, illegal and is totally in violation of the Rule of Law on which our system of democratic government is based. No power could prevent civil society organizations from having press conferences, workshops and training programs for journalists. All these are activities guaranteed as basic rights in a democratic polity.

This is nothing but an attempt to Rule by Law which is found in countries having authoritarian systems of government. It is obvious that the message is a veiled attempt to silence the civil society organizations that are the last bastions of protecting democracy, rule of law and egalitarianism. This regime has achieved much required for such authoritarian rule. Like Adolf Hitler's fascist regime, it has unethically and unlawfully consolidated its absolute control of the legislature, negated the independence of the judiciary by impeaching the incumbent Chief Justice and replacing her with a friendly hand, devalued the office of the Attorney General by directly bringing him under the wing of the president, thereby making his office powerless, perpetuated the office of the executive President and done away with Independent Commissions by the infamous 18th Amendment to the Constitution.

The Sri Lankan Government is resorting to these actions whilst it has given undertakings to the UN Human Rights Monitoring Bodies that it will respect the freedom of civil society activities in Sri Lanka.

During the state of public emergency declared by the Sirima Bandaranaike government in 1971, the Civil Rights Movement (CRM), the first NGO founded in Sri Lanka to campaign against gross human rights violations and for their protection, held seminars, issued press releases and bulletins highly critical of the government, but the then government did not go to the extent of issuing illegal decrees like the instant order. First citizen Mahinda Rajapakse knows more than any other person in Sri Lanka that even the UNP regimes both under JRJ and R. Premadasa did not resort to such extreme dictatorial action. The Jana Ghosas, Human Chains and Pada Yatras were held during the Premadasa regime without such overt prohibitions under MR's leadership. Even attempts of the government to disrupt such campaigns using the police were declared by the Supreme Court as violation of fundamental rights guaranteed by articles14 read with 12 of the Constitution and even compensation was ordered to be paid by the State to the victims.

The Supreme Court even ordered the IGP to send directives to all police stations in the island stating 'that the duty of the police is not to obstruct and disrupt the expression of democratic dissent but to protect and encourage them'( vide cases, Joseph Perera v. A.G., Shantha Wijerathne v.A.G., and noted Jana Ghosa case, (Amaratunga v. Sirimal). In the landmark judgment Joseph Perera v. Attorney General, the Supreme Court pronounced in no uncertain terms, that any restriction to the fundamental right shall be allowed only if a clear nexus can be demonstrated between the expression and the risk of harm to a legitimate interest of the State. It has been the view of courts in democratic societies to hold that governments are not allowed to punish persons for criticizing officials or politicians or for calling even for a regime change by peaceful means. It also means that authorities should not use censorship to prevent people from expressing their views. Under the ICCPR, freedom of expression shall not be restricted without a concrete threat to national security. In Sri Lanka, it mandates a publicly announced state of emergency.

The rulers must remember that the whole concept of human rights including the freedom of expression and assembly and any right set out in international declarations, treaties, conventions, constitutions and laws is essentially a distillation of centuries of philosophical discussion and debate. Human Rights are not something bestowed reluctantly by a country's rulers to its subjects as those lacking any basic knowledge of history and other social sciences think. Those are inalienable rights that they inherit at birth. As Immanuel Kant argued, these rights, like freedom of expression, might need to be controlled and restricted when it comes to be used by those in authority.

It is pertinent to recall some recorded incidents in human history where freedom of expression and the right to dissent was suppressed by the rulers. At the end of the Peloponnesian Wars, the Athenian Assembly ordered the great thinker Socrates to drink poison as punishment for lecturing about unrecognized gods and corrupting youth by encouraging them to question authority. What the Rajapakse regime is trying to achieve presently is also the same-- preventing every Sri Lankan (not only the youth) from questioning its authority to govern in violation of the rule of law. The sentencing of Galileo Galilie for life in prison because he confirmed Copernicus's theories of planetary motions around the sun which directly challenged the Church's belief in a stationary earth is another case in point. His jail term was commuted to house arrest without visits by outsiders after he knelt before the Pope to recant.

Having consolidated power in Germany through parliament, Adolf Hitler appointed Joseph Goebbels as Director of Propaganda; MR regime has many of them albeit not as powerful as Goebbels. One of Goebbels's first acts in the new post was to incite anti-Semitism in the media. Isn't it what the BBS is doing today abetted by some agents of State? Goebbels also rallied support for a massive book burning campaign on May 1933 in Berlin to destroy non-German books which prompted the German poet Heine to argue, "When books are burnt human beings are destined to be burnt too." Goebbels's notion of the 'big lie' defines the essence of totalitarian propaganda when he states, "If you tell a big lie enough to keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from political, economic and military consequences of the lie. It thus becomes virtually important for the State to use all of its powers to repress dissent for the truth is the mortal enemy of the lie, and by extension the truth is the greatest enemy of the State." In Stalin's regime in the USSR censorship was institutionalized by establishing a State body called Glavit. These actions by Stalin were instrumental in directing every aspect of public expression and for establishing 'Stalin's socialism' as the only allowable ideology. During Stalin's rule thousands of writers, journalists and artists who refused those decrees found themselves in prison camps and even in graves.

China is a country which is not governed by the Rule of Law but Rule by Law where it is not the law but the State that is supreme; (our rulers are apparently taking courses about the Rule by Law from their Chinese counterparts). Any hope for change is dampened by the current regime's suppression of any attempt to express opinions outside of approved subjects and to report facts outside the government's level of tolerance. China's attitude over the internet has shown the limits of the hope that technology can easily transform a dictatorship; (Chinese experts are being employed to block web sites in Sri Lanka, too). Only authoritarian governments do not like the freedom of expression which empowers citizens through knowledge, opinion and the possibility of gaining their own voice. Within democracies free expression allows citizens and groups of people to challenge political leaders and uncover information for the public and the public to ensure the accountability of their governments. The Nobel Price wining Indian economist once stated that there had never been a famine in a democratic state where freedom of expression and right to dissent are guaranteed.

One may say that citing the above examples from history is blowing the Sri Lankan situation out of proportion but the trends so far point towards such a gradual metamorphosis. It will be purposeless closing the stable after the horse runs away. The Rajapaksa regime is gradually closing in on the right to dissent which is a clear indication that it is treading towards authoritarianism and is following a path of engulf and devour. It is time for the people of Sri Lanka who really wish and desire to protect democracy and egalitarian rule in Sri Lanka to rally to prevent this country of ours from descending to authoritarian rule. Repeating the government's slogan that 'NGOs are traitors'-- which is false, malicious and misleading -- will help this government achieve its authoritarian ambitions. [1]

I wish to conclude by citing an apt saying of George Orwell who was an ardent critic of authoritarianism in his essay titled 'Freedom of the Park': "The relative freedom which we enjoy depends on public opinion. The law is no protection. Governments make law, but whether they are carried out, and how the police behave, depends on the general temper in the country. If a large number of people are interested in freedom of speech, there will be freedom of speech, even if the law forbids it, if public opinion is sluggish, inconvenient minorities will be persecuted, even if laws exist to protect them." [2]

K.D.C.Kumarage, JPUM, Attorney at Law. He is the Convener of Lawyers for Democracy, a voluntary lawyers group.

[1] The writer wishes to state that he does belong to any NGO which needs registration under government regulations but was the honorary legal advisor of the Organisation of Parents and Family Members of theDisappeared.(OPFMD) the complaints and documents of which Mr. Mahinda Rajapakse submitted inter alia to the then Human Rights Commission in Geneva in the 1990s.

[2] Freedom of the Park, first published: Tribun-GB, London – December 1945.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

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