- Police action under scrutiny
by Ashanthi Warunasuriya.
A vibrant democracy needs independent and impartial media – especially in this day of digital age. An independent media can only thrive if the freedom of journalists and media personnel to investigate and report facts in compliance with professional standards without outside influence while protecting editorial independence is guaranteed.
However, at any level what matters for a newspaper at the end is to fulfill its readers’ desire for information and when reporting news the journalists must follow a proper framework to provide information according to professional ethics. This is implied in Article 14 (1) (a) of the 1978 Constitution of Sri Lanka where not only journalists and media personnel but all citizens are guaranteed the freedom of speech and expression including publication.
After bragging and deliberating on media freedom for a long time, we are now living in a time where we can clearly talk openly about the subject like never before. Ensuring unhindered media freedoms and the enactment of a Right to Information Act were two of the major promises made by the present government during the 2015 Presidential Election. However, even before the first year anniversary of the present government coming into office, several incidents that have taken place have started to shake the foundations of such pledges.
The latest such incident is the summoning of Vijayani Edirisinghe, a senior journalist working for Dinamina newspaper, to the Criminal Investigation Department (CID) to question about her sources regarding a news article published in the paper about the murder of veteran journalist Prageeth Ekneligoda.
Six years have passed since the suspicious disappearance of Ekneligoda and during that time period almost all media in Sri Lanka reported on the incident. Accordingly Ms. Edirisinghe, has been engaged in reporting facts to the public by making her own investigations. Here she had once reported that based on CID sources, she had been able to uncover that Prageeth had been taken out from the Girithale Army camp where he had been detained and had been taken away to Welikanda area. Followed by her report, Vijayani has been summoned over to the CID on December 30 to give a statement. Expressing her views regarding the matter, this is what Vijayani had to say.
“I honestly believed that the CID would ask me something about my reportage on the investigations into the disappearance of Ekneligoda. After informing my office about the call I went to the CID. In fourth floor I was questioned as to who had given me the information for my report. When I asked them what their intention was they said that they wanted find out how such sensitive information is being leaked since only a handful of officers are engaged in the investigation. When I refused to reveal my sources they asked me, why I quoted the CID. For that I told that the reason was because it was the CID that had been involved in the investigation since the beginning.”
However, Ms. Edirisinghe has been further questioned about how she had been able to acquire information out from the CID regarding the investigation. Objecting to such a measure, she says that it is unfair for a journalist to be questioned at the fourth floor. She has been held up at the CID for about three hours between 11.00 am to 2.00 pm.
Protecting the confidentiality of sources
Under the Code of Professional Practice (Code of Ethics) of The Editors Guild of Sri Lanka adopted by the Press Complaints Commission of Sri Lanka, journalists are bound to protect their sources.
Under Article 5.1: “Every journalist has a moral obligation to protect confidential sources of information, until that source authorises otherwise.”
By revealing such sources, not only tenets included the Code of Professional Practice are violated but also puts the lives of those who had given the information in danger. Thus a journalist has an utmost right and a near-inviolable duty not to reveal his or her sources.
In this incident the CID has faced a problem of in finding out how its information had been leaked out. If that is the case, the CID must primarily focus on its failure in protecting its information leakage. Towards that end the CID must question its own officers, instead of interrogating a journalist about her sources exhibiting its inability to protect secrecy.
Article 14 (1) (a) guarantees to every citizen the freedom of speech and expression and the right to information not only to journalist but to all citizens is implicit in the freedom of speech and expression.
On a previous occasion veteran journalist Subhash Jayawardana of Sath Handa newspaper was summoned to the CID to be questioned regarding an article he had written about the close relationships of certain Cabinet Ministers with the Avant Garde owners. He had been summoned to the CID under the charge of slandering government officials. However, the CID does not have authority to question journalists on such instances. Speaking about his experience, Jayawardana said that even though police officials are well aware of the law they are sometimes compelled to cater to the demands of politicians.
Democracy requires that dissent be encouraged – Justice Mark Fernando
In the landmark ruling of Amaratunga v. Sirimal (Janagosha case) reported in  Volume 1 of the Sri Lanka Law Reports Justice Fernando held as follows: “The right to support or to criticise governments is fundamental to the democratic way of life, and the freedom of speech and expression is one which cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions.”
In Deshapriya v. Municipal Council, Nuwara Eliya which is reported in  1 Sri L.R. 362, the Mayoress of Nuwara Eliya, acting under the power of her office, seized 450 copies of the petitioner’s newspaper, thereby preventing their sale to the public. Justice Fernando delivering judgment stated thus: “The infringement of Article 14(1) (a) can take many forms and may be direct or indirect; the exclusion of anti-government news and views in newspapers controlled by the Government, particularly when it amounts to a denial of equal treatment or discrimination because of political opinion would be as much an infringement as the suppression (by force or otherwise) of such news and views in newspapers independent of the Government.”
He then stressed that “democracy requires not merely that dissent be tolerated but that it be encouraged”.
In Wimal Fernando v. SLBC (1996) 1 Sri L.R.157 Justice Fernando held that “Article 14(1) (a) of the Constitution is not to be interpreted narrowly. Not only does it include every form of expression, but its protection may be invoked in combination with other express guarantees and extends to, and includes, implied guarantees necessary to make the express guarantees meaningful. Thus it may include the right to obtain and record information, may be by means of oral interviews, publications, tape-recordings, photographs and the like, and, arguably, it may even extend to a privilege not to be compelled to disclose sources of information if that privilege is necessary to make the right to information ‘fully meaningful’.”
Sinha Ratnatunga saga & Watergate Scandal
The present government has boasted on numerous occasions of its commitment good governance and towards establishing media freedom. Democracy does not mean just holding elections and the ensuring that the voice of the majority is heard. Democracy is truly established when a government acts towards the betterment of the general public instead of the well-being of a selected few. Good governance can only be achieved by practically allowing the people to feel the sense of equality.
In relation to protection sources, the case of Sinha Ratnatunga which is considered as a controversial trial in the recent legal history can be cited as a good example about protecting sources. In this case the journalist was accused of criminal defamation under the Penal Code. However instead of revealing his sources he cited safeguarding confidentiality and identity of sources and was found guilty. However, as the then Ranil Wickremesinghe administration abolished criminal defamation before the end of the trial he was set free. This is an example about reporting false news. However there are many examples in the international arena where journalists have protected the identity of their sources in difficult moments.
In the seminal case of Goodwin Vs UK, the European Court of Human Rights (ECHR) ruled that an attempt made to force a journalist to reveal his sources in a news article had violated his right to receive information. Hence the right for the free flow of information for the detriment of democracy is justifiable only in exceptional circumstances.
A laudable instance where authorities respected the right of journalists to protect the identity of sources was the Watergate Scandal where series of articles by Washington Post reporters Bob Woodward and Carl Bernstein which ultimately lead to the resignation of then US President Richard Nixon. Woodward and Bernstein relied extensively on information provided by someone known to the world only under the nickname ‘Deep Throat’. Woodward and Bernstein were not forced to invoke the protection of sources, since the US authorities made no attempt to uncover the identity of “Deep Throat”. In 2005 W. Mark Felt, who at the time had been Associate Director of the US Federal Bureau of Investigation, revealed that he was ‘Deep Throat’.
Another example of the legal operation of the right is the case of Bart Mos and Joost de Haas, of the Dutch daily – De Telegraaf. In an article in January 2006, the two journalists alleged the existence of a leak in the Dutch secret services and quoted from what they claimed was an official dossier on Mink Kok, a notorious criminal. They further alleged that the dossier in question had fallen into the hands of Kok himself. A subsequent Police investigation led to the prosecution of Paul H., an agent accused of selling the file in question. Upon motions by the prosecution and the defence, the investigative judge in the case ordered the disclosure of the source for the news story, on the grounds that it was necessary to safeguard national security and ensure a fair trial for Paul H. The two journalists were subsequently detained for refusing to comply with the disclosure order, but were released on appeal after three days, on November 30. The Hague district court considered that the national security interest served by the order was minor and should not prevail over the protection of sources.
Serious erosion of media freedom
Although there are many examples about protecting media freedom in other countries, during the past decade Sri Lanka witnessed a serious erosion of rights of media personnel. During the infamous Rajapaksa regime journalists were threatened, harassed, abducted and even murdered on broad daylight.
Media institutions were set on fire and provisions of the archaic PTA (Prevention of Terrorism Act) were arbitrarily imposed upon journalists. Even for trivial matters some journalists were detained for longer periods. The media was heavily censored and even the telephone lines of journalists were tapped. Many media institutions and journalist increasingly practiced self-censorship. In some instances, the CID summoned journalists for questioning without any real reason. The present government that represented the opposition at that time openly criticised such undue intimidation. However, with its current conduct of CID it has become questionable to many as to whether the present government is also trying to follow the footsteps of its predecessor.
If any information regarding the Avant Garde or Ekneligoda cases have leaked out it is up to the CID to look in to it. But still the authorities are pre-occupied with journalists fulfilling the public need for information through publishing news articles about such controversial matters as if they were criminal offenses. Could the CID summon and question journalists just because he or she had published a news article?
Political establishment at fault
However, here the CID alone should not take the blame. The government too has hand in it. As a government that screamed its lungs out media freedom the present government cannot choose a path of media suppression. Thus the time has come for the government to put an end to this foul play.
Journalists Can’t Be Compelled To Divulge Sources – Deputy Media Minister Karunaratne ParanawitharanaDeputy Media Minister Karunaratne Paranawitharana said, “We intimated to the Police even last week that if they are questioning any journalist under any circumstances they can do so but they have no right to ask for his/her sources which is outright unethical. A journalist has his right to protect their sources and cannot be compelled to divulge his or her sources. If such incidents take place we have informed journalists that they should notify us. With regards to questioning of Ms Vijayani no one have so far notified us. Police officers, who question journalists about their sources, clearly have no understanding of media ethics and practices.
Our policy is to protect media freedom in its entirety. There is no difference between state media or private media. Journalists in general needs to be protected and they have all the right to refrain from divulging their sources at all costs. In this instance it is clearly evident that these law enforcement officers have no understanding of the media rights. If the police had an intention of questioning any journalist, the right thing to do would have been to inform the media institution of their desire to record a statement, go to the establishment and record their statement from the relevant journalist. However they have no right to question the journalist or force them to divulge their information sources.
Whether or not to divulge their sources is entirely at the discretion of the journalist but this does not mean journalists are exempted from being questioned on any criminal activity or investigation. If a journalist is involved in any unlawful or criminal activity, they should be dealt with according to the general law however when being questioned on a news article, then the journalist has the right to refrain from divulging their sources.
We ask all journalists to inform us if they are being harassed in any manner due to their profession. They can inform the Inspector general of the police (IGP) or the police media spokesmen regarding my harassment. We hope to convene a workshop regarding the laws concerning journalists and the relevance of criminal laws to journalists. Within the month we hope to convene this workshop together with the police and the media as some journalists and police officer alike are unaware of such laws