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| Savitri Goonesekere |
Following are excerpts of the keynote address made by Emeritus Professor of Law, Savitri Goonesekere on Monday at the inaugural session of the conference organized by the Sri Lanka Press Complaints Commission (SLPCC) on Self-Regulation and Ethical Reporting, to mark their 10th anniversary:
“The celebration of the 10th anniversary of the SLPCC and the inaugural session of this international conference is a location to declare victories and also to take stock in regard to the realities that confront the professionals of journalism both in our country and others represented at this meeting.
Sri Lanka has made international headlines both positive and negative in the last few years, particularly on issues concerning violence against journalists. It is a tribute to the profession and its leadership that it has demonstrated unity in building institutions, procedures and practices that attempt to withstand the onslaught of forces, which seek to enforce the press and print media in particular, by focusing on the social responsibility of the media to regulate themselves.
The Colombo declaration on media freedom and social responsibility of 1998 and the very setting up of the SLPCC and the code of practice of the Editors’ Guild in Sri Lanka introduced in 2008 – though a decade apart, represent a professional tradition in difficult times and need to be recognised today, on the 10th anniversary, as positive professional initiatives in an environment where journalists confront a sea of troubles.
The annual report of the PCCSL however demonstrates another reality. In a country that has witnessed an erosion of confidence in many key institutions, the profession and its dispute resolution council appears to have been used to fulfill the purpose of conflict resolution and dispute settlements among the press, the state and the public in an environment devoid of acrimony. This is something we need to celebrate.
However this event is also an occasion for focusing on the scope of self-regulation and news reporting and to reflect on the context in which this need arises as well as the environmental context in which it can and should function.
Self-regulation: is it purely a Western concept?
The concept of self-regulation is rooted in the idea of social responsibility of the media and yet, in many countries the criticism of the press is that they cannot regulate themselves and they misuse the powers entitled to them. However particularly in developing countries, the concept of development itself is often the ideology that is used to undermine and attack the concept of the free-flow of information.
And in that context, the government and other actors argue that the freedom of information/press undermines the capacity of economic growth and that therefore the social responsibility of the media is the right of the state to control media.
The challenge therefore, is also to understand the dynamic that calls for the role for social responsibility and nevertheless reinstate the fundamental freedom and the basis of the right to freedom of information. This is often forgotten, because in the process of asking for a responsible press there is also the manipulation of the idea to create/regulate an undemocratic environment which can also lead to self-censorship. So it is important to remind ourselves on how the idea of self-regulation surfaced.
I think we need to go back to the fact that the freedom of expression is clearly located in western historical tradition – the abuse of power and ideology that undermined the prides and dignity of the individual, the right to think independently and hold different views as well as to articulate and express them, were confronted. It was as late as the 17th century, with the school of natural law, that the concept of the dignity of the individual and these rights were crystallised in terms of a legal and quantitative framework. It was a result of great suffering and struggle, of blood and death; whether we think of Galileo or Joan of Arc – that the restraint and courage to stand against it was born.
And so in 1948, it is important to recall that those ideas fertilised the Universal Declaration of Human Rights (UDHR). It set down a universal norm that all human beings are free and equal with dignity and rights, and recognised that the foundation of freedom, justice and peace in the world was indeed connected to freedom of expression. Therefore, the preamble of the UDHR was to state that the freedom of speech was the highest aspiration of the common people.
Article 19 therefore incorporates this concept and in specific treaties – the International Covenant on Civil and Political Rights. Freedom of the press – born out of extraordinary experiences in the West therefore involves the freedom of speech, expression, communication, legitimacy of criticism and the importance of articulating opinions that are relevant for public interest. Hence, it is crucial for democratic governance and the concept of accountable, good governance. Freedom of information, speech and press is described in Human Rights language as a public good and it needs to be understood as such whenever there are any erosions or interventions that seek to control.
This universality however is often challenged on the grounds that they are Western values and that they do not resonate with issues prevalent in Asian/African countries. As far as many of these countries are concerned, we have to recognise that the universality and relevance of these concepts have already been incorporated in our own constitutions and legal frameworks, which despite colonialism are included in the structures of governance based on the respect for human rights and democracy and enshrined in the very institutions in countries such as Sri Lanka, India and many of the countries in the African continent.
Universal experiences resonating with local traditions
In post-independence constitutions, this ideology was made our own and the universality and relevance of that ideology was recognised. In doing so, we have to remember that the incorporation occurred due to the values resonating in a cultural and historical tradition particularly within South Asian countries that valued dissent, discourse and different opinions.
One has only to read the exchange of words between Bhikku Nagasena and the King in the ancient texts depicting the ‘Milinda Prashna’ (Questions of Milinda) to observe how he defines kingship and the difference between authoritarianism and freedom of thought and speech.
When the King visited Bhikku Nagasena for a discussion, he inquired form the King – “Will you come to me as a scholar, a citizen or as a king?” Thereafter he describes the difference by saying, “We will communicate as equals, share ideas and form opinions and part in peace.”
The King understands that authoritarian kingship is somewhat different and that it has a tendency to say ‘Off with the head!’ So subsequently he replies that his wish is to approach Bhikku Nagasena to speak and engage in a discourse.
So we have a lot of scholars who show that this diversity and respect for difference was part of the culture and traditions. Therefore, when these universal rights were incorporated in our countries, they were on the basis that they resonated with the universal experience as well as the local traditions.
Therefore we must resist the concept that they are they are Western values which are alien from the context of development in the country. These universal values address and help to address the right to freedom of speech particularly in a developmental context. Key issues like the accountability of governance, corruption, misuse of natural resources are those which are intrinsic to development and therefore, we know that freedom of information is crucial to development.
The states in many of our countries also argue that the community focus on people’s individual rights must be contained. So freedom of speech at best may have to be curtailed because it runs in conflict with the best interests of the community.
We have to understand that we cannot separate the community or the individual. The dignity and the rights of the individual are core to the rights and the wellbeing of the community – a fact which is amply demonstrated in political movements be it the LTTE or the Al-Qaeda which argue for the community but violate the dignity and rights of the people. We have to also understand that the relevance of this ideology of free speech, is both for the protection of the individual and the community.
Press freedom is not unrestricted
On that basis therefore we have to ask ourselves, how does the issue of social responsibility of the media play out in a context where you have this type of freedom of the press, which in some ways are uncontrolled? At that point, we have to remind ourselves that human rights do not postulate unrestricted freedom of the press. There are very specific areas in which the state is entitled to control such as public welfare, morals, health as well as respect for the rights and liberties of other people. Therefore the basis of restrictions is ingrained in the rights of the people in universal values.
These ideas of people have also been incorporated in our constitutions at times, less narrow than they should be. But nevertheless they do exist. The basis of those restrictions is the recognition of the social responsibility of the press. So the concept of regulation is a response for the social responsibility of the press, which is also engraved in the idea that it was created for good.
But the problem arises when the state goes beyond its mandate to control and for that, it brings forth certain arguments such as claims of hidden forces controlling the press such as corporate power or political ideologies which are in conflict with the state in order to control the press and justify their actions. Therefore, it is important to evaluate whether the state has overstepped its mandate and gone beyond what it should do and by critiquing it, understand that the social responsibility of the concept cannot be manipulated. It is also vital that by self-regulation, it also ensures that more ethical values as well as institutions and systems which can help meet the criticisms are introduced.
Another factor that should be noted is that the press responds to the erosion of press freedom by responding with claims such as ‘Don’t criticize us because we know we can regulate ourselves.’ If you look at the history of Sri Lanka, you will find that it is exactly what has happened – self-regulation came about because of the attacks on the freedom of the press and due to criminal defamation misused against distinguished editors. In response, the editors and leaders of the press therefore united in their voice to resist and battle for decriminalisation of defamation laws and the establishment of an institution that would offer dispute resolution, which eventually became a success.
So in Sri Lanka too, it was the response of the authoritarian state that promoted the concept of self-regulation. Therefore, we don’t want the social responsibility of the press manipulated to undermine democracy. But we need to recognise that the concept for regulating oneself is to prevent the erosion of the press.
Threats to media freedom by non-state actors
However, even as the Sri Lanka experience indicates, the response to self-regulation was because of erosions in press freedom. We need to understand that today it’s necessary to look at other agencies which also erode the freedom of the press. One of the challenges of this meeting, will be to see how the threats from non-state actors such as the corporate sector, mafia or political actors – all of whom constitute as much of a threat to press freedom as the state, occur and what can be done to address the challenges of that threat.
It’s also necessary to understand that the ethical value base of self-regulation has to be set in some kind of code practice, which has been done in Sri Lanka. But it has to be done in a broader spectrum through which certain areas of gaps such as the internet can be addressed. But it is also necessary to understand that the internet becomes a source of information in an authoritarian governance structure. Today, people seek to read the internet as an alternative source due to self-censorship adopted within the press.
Therefore, I don’t think it is enough to see the internet as a threat because they are violating standards to seek you uphold. It may mean making common cause rather than seeing them as a threat and again, the ethical value basis of your profession of course has to be carried out undoubtedly to the internet because otherwise, we see this huge gap in the erosion of the very self-regulation spoken about.
Therefore it is important that guidelines on responsible reporting are clear and commitment to broader values of the profession are stimulated, which would ultimately become the bulwark of democratic governance in the country and in the process, set practice guidelines that are not too hard to follow but also do not undermine the very core.
It is said that facts are sacred but comment is free. When you say that, it becomes extremely confusing particularly in an authoritarian environment where people may not be willing to share their sources. What can one do in such situations – it is definitely one of the challenges to be overcome.
When you say comment is free, what does it mean? Does it not mean adhering to the basic human rights and values such as tolerance, respect and encouragement of particular comments? Does it not mean peaceful conflict resolution? Does it not mean standing against authoritarian violence and intolerance?
Those are surely the basic values of that quote and they must be the very basis on which you seek to ask that your profession is respected and the grounds on which you seek to protect the vital need of democracy.
There must also be an understanding that bias is not justified whether it was against a particular sex, an ethnic group or a viewpoint. The concept of real respect and tolerance of viewpoint difference resonates, as I earlier mentioned, in our cultures as well as in Africa and Asia. It is best demonstrated by late Nelson Mandela, who had obtained most of what he learnt through his own tribal society before he became a lawyer and understood about human rights.
Institutional support is vital
To do that we have to understand also that the journalist cannot be alone – there has to be institutional support. In many countries where freedom of speech and press is vibrant, there has been institutional support. In Sri Lanka, during the past, the institutional support of the Bar Association (BASL), lawyers were offered to the journalists when they sought to decriminalise the defamation laws. It is also important that the institutional support of a depoliticised police and an unbiased judiciary capable of understanding the need to respect the constitution that could develop jurisprudence of the freedom of press, information and speech is relevant to make these values meaningful in our society.
The judiciary of this country has actually recognised that there could be a right to freedom of information as part of the right to freedom of speech, on the basis that you cannot have freedom of speech or formulate thinking without access to information. We are still a country, perhaps one of the few countries in the region, that do not have the Right to Information Act and that support is critical.
We can talk of self-regulation and ethical values, but if the context is absent it would be only fair to understand that self-censorship rather than self-regulation will be the accepted, normative ideology for the press. And so in all our countries we need an independent judiciary and police and those two elements are absolutely crucial if the courageous journalist/editor conforms to the concept of social responsibility of media, follows ethical guidelines and does what he has to do and does not end up in harm’s way.
So let this meeting be an occasion for the press to reflect on the social and political context and to see whether it is supportive or undermines what it seeks to do. In particular this is not just an issue of civil or political right to freedom of speech but is of the essence of socio economic rights because it is also linked to those many rights be they food, education etc. Amartya Sen in an account of a famine in a particular country explains how the lack of food was caused not by scarcity of food but the absence of information on where the food can be obtained.
So these are linked and therefore we ourselves from developing countries have contributed to the discourse. Therefore, press freedom can lead to development and economic growth, sharing of national resources and battling corruption.
In conclusion I would also like to say that in those countries like ours who face the problem of striving for peace following periods of armed conflict, the press has an enormous obligation to foster inclusive growth and respect for human rights and tolerance, viewpoint dissent and the legitimacy of criticism. A verse in the ancient Buddhist text the Dhammapada reads:
“Victory breeds hatred – the defeated live in pain Happily, the wise person lives – giving up the concept of victory or defeat”
The SLPCC was established based on that ideology of non-adversarial, peaceful conflict and dispute resolution. I hope that in performing that task and addressing the complaint, you will also use the institutional framework as well as the code of practice to try to bring to this country and before the public space, the ideas that freedom of speech, freedom of opinion and freedom of dissent is not only form the essence of democracy but also of the prevalent.
(Transcribed by Lakna Paranamanna)
DM