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Thursday, June 20, 2024

The survival of our civil life is in danger;the danger has never been clearer and its presence has never been more imminent

Upul Jasuriya
Key Note Address of the World Press Freedom Day Event organised  by SLPI and FMM
Upul Jasuriya, President Bar Association of Sri Lanka
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers” 

This principle has been defined by Article 19 of the Universal Declaration of Human Rights adopted in 1948 and has been re-affirmed by the International Covenant on Civil and Political Rights, a multilateral treaty adopted by the U.N. General Assembly in 1966, further outlining permissible restrictions to protect the rights and reputations of others, national security, and public health, so long as such restrictions are supported by statute.
Nearly 2500 years ago, addressing the 60 Arahanths the first disciples of Lord Buddha, he said:
“Charatha bhikkhave Charikang
  Bahu jana hitaya,
  Bahu jana sukhaya,
  Atthaya, sukhaya
Oh monks, go ye forth and preach this Dhamma which is noble in the beginning, noble in the middle and noble in the end (Adi kalyana, majjhe kalyana, pariyosana kalyana), for the happiness, welfare and benefit of the many. No two of you should take the same route…
In this manner, the Buddha began his mission with the ‘freedom of expression’ held uppermost in his message to the world.
Focused, determined, enlightened public opinion is the most potent force in the world. To achieve this goal, the role played by the media is pivotal. A vibrant, free press and an active civil society are essential to the proper functioning of any democracy.
Ithas to be regarded that sovereign rights and self governance of all nations as sacrosanct. The greatest asset of any nation resides in the freely expressed goodwill of its people. Governments should be controlled by all the people, each sharing equally in the privileges, duties and responsibilities and each participating in the government as representatives.
Government of the people, by the people, for the people, based upon the good will of the people, protecting its rights of association, expression, movement, belief and the rule of equality is the dream of a nation.
Generations of mental and psychological damage resulting from non-existent or poorly directed human rights programs have severely restricted the free society and the development of millions of people worldwide.
Establishing and maintaining comprehensive humanrelations in all areas of social growth will remain one of the primary considerations for all governments well into the future.
Self censorship is of paramount importance. When Journalists or their publications have exceeded their limits on individuals they are defenseless. Inevitably they have to end up in Courts. Everything that is said or done cannot be defended with justification.
Late D.R. Wijewardena, a Cambridge Barrister at the Inner Temple, on his return to Ceylon established Lake House and commenced publication of Ceylon Daily News, an English language daily on 3rd January 1918. Together with his brother D.C. Wijewardena, he took over the Sinhala language daily Dinamina, which was followed by the publication of a Tamil language daily under its corporate arm Associated Newspapers of Ceylon Ltd.
The first blow to media freedom in Sri Lanka was experienced with the take-over of Lake House in 1970 by the then government. The shares of Lake House were taken over by the government and vested with the Public Trustee. Up to this day its shares are supposed to be held by the Public Trustee. The role played by the Public Trustee on its shares is any body’s guess. No successive government had the courage to emancipate the lake house from the government grip.
Late D.R. Wijewardena would never have imagined even in his wildest dreams that the Lake House that he created with vision and commitment would turn out to be an apology to the independence of the press and an insult to the intelligence and the integrity of the hapless able men constrained and sheltered under the “beira gedara”.
It is not only Lake House, the entire state media which includes the electronic media has degenerated to the lowest levels of supporting the government.
During the 2010 Presidential Elections I supported an application before the Supreme Court seeking equal publicity for the opposition Candidate in compliance with the 17th amendment to the Constitution of Sri Lanka. The stay order was granted by a bench of 5 judges with the Attorney General objecting to the application. Even the order of the Supreme Court was flouted in limine with blatant disregard and in Contempt of Court. Papers were filed to charge the state media institutions for Contempt. The application was never allowed to be supported in the Supreme Court. The 43rd Chief Justice was insulted with full glare of publicly scrutiny with reference to the position she was holding then as the Chief Justice. The application was never listed to be supported in open Court….

The Draconian counter-terrorism legislation, The PTA that was brought in nearly three decades ago is still in place. At different eras in the absence of emergency regulations this act has been used to smother the freedom enjoyed by you, the journalists.

As a result of escalation in both authoritarian and un-democratic settings over the past several years, the environment of the free media has fallen to its crudest levels during the past decade. The hard held grip of the executive does not appear to be let loose in the foreseeable future. The safety of journalists, sustenance of the media institutions is in jeopardy. The state intrusion in media affairs is at its peak, and the press is subjected to onerous legal or economic pressures. Moreover, in the most recent five-year period, the country has significantly plunged in to its lowest depth restricting media freedom and freedom of expression. In the new millennium this trend has been deteriorating in a rapid decline.  Challenges to the members of the fourth estate are miserably escalating. Access to information is despondently restrained.
According to Reporters sans Frontiers, in the world ranking, Sri Lanka stands 165th out of 175 countries in terms of press freedom, behind Uzbekistan, Rwanda and Libya. As far as Asia goes, Si Lanka is the 35th out of the 40 Asian countries listed. This is on the basis of known data and reported facts.
A Country like no other, the miracle or the tear drop of Asia is fast descending towards a point of no return.
Privileged politicians, political cronies and other power brokers see the press as a threat and often target journalists with violence, intimidation and imprisonment to silence them. Of course it is a trend that sets in with power.
Yet, more often than not, we get the truth about what is happening in the world from journalists who are willing to put themselves on the line of fire in order to report the truth. If not for the tears and blood, shed by those of you who took the pen instead of the gun to voice the social injustice and the inequities faced by the voiceless and the under privileged not only our country but the entire world would be unsafe.
A culture of impunity is flourishing and tightening its grip on the media with journalists continuing to face threats and harassment to say the least. Your brother journalist, Prageeth Ekneligoda, has been missing since the last presidential election and is feared dead.
Journalist Sivaram was abducted, killed and abandoned on the banks of Diyawannawa.
Journalist J.S. Tissainayagam was sentenced to Jail. As per the judgment of the single judge bench, three years prior to the indictment he has received Rs. 50,000/= from a source that he could not recollect as to who it was. In the judgment there is an inference that since the accused was unable to divulge the source, it was “obvious” that he had received it from the LTTE and was sentenced to 20 years RI……
With the mounting international pressure he was granted a Presidential pardon. Since then he has gone into hiding and remained silent.
There are many journalists who have gone underground or overseas.
The pressures that are brought on media institutions are multi facetted. Firstly by persuasion, secondly by threat. Either way some succumb.
Sunday Leader was set on fire. It was attacked on 9 occasions.  It did not stop there. Lasantha Wicrematunga its Editor was brutally killed in broad day light. Frederica Jansz was hounded out. She is in exile. Faraz Shakuthally of Sunday Leader was shot at, Mandana Ismail Abeywickrema of the same news paper was attacked on two occasions. Usually after an attack the management would provide security and shelter. But in this case she was sent on vacation of post. As far as Sunday Leader was concerned these attacks were carried out over a period of  nearly four years and finally it was made impossible to the owners to carry on and the same has now been taken over by  friends who are not so friendly to the media.
Keith Noyer of Nation and Upali Tennakoon Editor Rivira were brutally assaulted. This resulted in the ownership changing hands and the directions of the paper being totally changed. TheUdayan news paper in Jaffna was attacked and set fire to on several occasions.
The Nation news paper has been taken over by a new ownership resulting 360 degree change of course.
The Mawbima owner’s house was attacked with grenades and set ablaze.
It Is not confined to the print media!
Sirasa TV station was attacked and set fire to on two occasions. The last occasion it was attacked, the damage was over two Hundred Million. However they have had the courage and stamina to rise from the ashes with vision intact and stay focused. When such attacks are carried out with no action against the perpetrators, some would fall in line and succumb.
On average 25 Journalists flee the Country every year. So far 34 Journalists have been murdered. I hope one of you will not be the 35th.
None of these incidents that were referred to, have been successfully investigated with those responsible being brought before the Courts. The Chief Monk of the Bellanwila Temple, Ven. Dr. Bellanwila Wimalarathana Nayake Thero has commented that whenever perpetrators of such heinous crimes are not brought before courts the finger is pointed at the Government.
The pressures that are brought on media could be multifaceted. It could be banning of advertisements, curtailment of news print, or being taken into custody even in the absence of the Criminal Defamation, on a fabricated charge, ownership being sued for heavy damages, damages caused to equipment, physical attacks on journalists or even the termination of their existence.
The role that is played by the Media men whilst discharging their duty to society at large is second to none. You, not only risk your limbs but also risk your lives, in the discharge of the noble duty to the nation and its people. I would think that the legal profession has similarities with yours. We both discharge our duties for a cause. In rare occasions we too have to sacrifice our lives.
In lighter vein we may be well paid for it, whereas you are ill paid, to die for a cause…..
The people in Sri Lanka believe that a well-informed public, Rule of Law and a vibrant Judiciary is the core of our democracy. News stories-reported by journalists-often bring to public attention, the most important issues concerning the plundering of public property, actions of the executive when it causes more harm than the good that is expected and when those who are politically blessed violate the law of the land with impunity and desecrate the rule of law, when the guilty roam around freely and those who are guiltless are stifled and punished!
Despite the 24-7 availability of news from print, broadcast, and digital sources, there remains one clear fact: When it comes to original, in-depth reporting that records and exposes accomplishments, issues, opportunities, and corruption in our communities, nothing has replaced a newspaper. Google, Yahoo, blogs, and even most local and national broadcasters pull their news stories and postings from the original, laborious—and expensive—work of experienced newspaper reporters diligently working their beats over the course of years and months.
However one has to understand that more restraints and pressure on the media would make the social media more powerful as the wired communication is being substituted with internet making the world a global village. However, readers are denied access to websites disseminating information not so favourable to the executive or the government. Sites such as Colombo Telegraph, Lanka E news or Lanka News Web can only be accessed through proxies.  On certain occasions those managing such websites had to flee the country due to fear of death and have been compelled to feed information to such sites from foreign countries.
This is the plight of the Journalism in the miracle……. Tear drop  of Asia
Our forefathers fought the colonial rulers and won the democratic rights for our people. We were inherited not only the franchise but an upright Civil Service, an elegant foreign service. An unshackled Police Service, an un polluted education system, and the independent Judiciary.
What are we now left with?
We have a dismembered Civil Service. We have a pathetic foreign service comprising of friends, relatives and retired politicians. We have a ramshackle Police service! A politicized education system.
What about the Judiciary? Has it been spared? The answer is simply No..No..No.
Politicization has engulfed the bulwarks that we won and treasured for nearly 66 years. Independent statutory bodies that were in place to provide protection and fortification have been muted and mummified over the years. Law enforcement authorities have fallen prey to the fearful invasions of the successive governments which is tightening the noose around Democracy, breathing its last.
Look at our neighboring India! It has preserved and safeguarded those very same institutions that are been demolished in Sri Lanka. On top of it, it has free and fair elections by officers who are free from interferences and refuse to act on the political dictates of the ruling party politicians. Right to information is ensured by statute.
In 2001 an attempt was made with the promulgation of the salutary 17th amendment that was brought in with the assent of the entire Parliament acting in unison. An independent Police Commission, Independent Bribery Commission, Independent Elections Commissions and the appointment of judges to the Supreme Court and the Court of Appeal by the Constitutional Council were provided for. With the same regime continuing but with the change of its Leader, most of the very same Parliamentarians who raised their hands in support of the 17th amendment acted shamelessly raising their hands in support of the 18th amendment, abolishing the Constitutional Council allowing the President to contest for as long as it pleases him.  Little did they realize that they were digging their own graves.
When I met the Venerable Mahanayake’s of the Asgiriya and Malwatte Chapters yesterday they expressed their total frustration and dissatisfaction on the process adopted in making appointments to these high posts.
May I now draw your attention to the devastating results of the diabolical act of the abolition of the 17th Amendment to the Constitution by the introduction of the 18thAmendment.
The very appointment process of persons to the Apex Court and the Independent Commissions through the Constitutional Council that consisted representation of all parties was done away with, vesting its discretion on the Executive. Even with the political appointments that were made in the judiciary there was some sanity and integrity. But it is not so now. The Constitutional Council evolved a transparent criterion of selection for appointment of Judges to the Supreme Court and the Court of Appeal. With the usurpation of the powers of the Constitutional Council by the Executive consequent to the 18th amendment abrogating the 17th amendment all hell has broken loose.

It was the view of the Constitutional Council that the President of the Court of Appeal was to be given priority for appointment to the Supreme Court. If an officer of the Attorney General’s Department was to be appointed it had to be the Solicitor General. If the Attorney General was to be appointed it was only as the Chief Justice of the Country. Late Justice Sri Skanda Raja, President of the Court of Appeal as he was then, was overlooked four times until he succumbed to his death with a broken heart. It also meant that his next in line was also overlooked. He is still being overlooked. The present Solicitor General is being overlooked. Where will it end?

A room filled with men in black… smartly dressed…. Some look fancy…… talking all the time…… hardly understood by the people around…….  Has the lady of Justice taken a walk forgetting her sword and the scale. There may be no Courts around us. Permit me to quote the Indian icon Mahatma Gandhi the great. He said “There is a higher court than courts of justice and that is the court of conscience. It supersedes all other courts.”
All persons are equal before the Law. Article 12(1) of the Constitution emphasizes this fundamental right. All rules and procedures should apply to all persons equally. When a peaceful protest that would have been carried out for a few hours is banned by the Police by seeking Judicial orders, that are readily granted in violation of the rules of Natural Justice, with no hearing afforded to the enjoined party, on the basis that the protest would be interfering with the free flow of traffic. It is the duty of the fourth estate to report this, comparing thedifferent course of action, or rather the inaction adopted by the police in the instance where free flow of traffic was hampered for more than a week with the unload of hundreds of thousands of sand bags for “night races”.
When Lord Buddha’s image on a lotus is tattooed you are incarcerated. I would wonder what they would do if a person wears a chain with the image of The Lord Buddha or even dharma Chakraya, which is a common sight.
Highways are constructed at varying costs. In the construction of the roadway from Kottawa to Galle cost Rs. 900 Million per Km, Hambantota to Mattala, 25 km cost Rs. 1800 million per KM; Southern Expressway Extension from Galle to Matara, 26 KM cost Rs. 4000 Million per KM., outer circular highway of 9.3 km from Kadawatha to Kerawalapitiya cost a staggering Rs. 7500 million per kilometer. Future generations would be in debt. All the contracts are awarded through the back door on the basis of “unsolicited offers”……… This is the latest find of the treasury.  There were many such projects that were exposed. The persons who were responsible along with their names and all other details were published. The brave Journalist, the Editor and the ownership, who had the guts and the courage to expose this National scandal deserve not only a bouquet of flowers but the veneration of the Entire Nation.
We are aware that we have very little money allocated for the medicine in government hospitals and medical facilities. We are aware that meager sums are allocated to the Universities and Education. We are aware that the cost of living is sky rocketing with the plummeting US dollar.
We heard the other day that a government Minister was found with 400 Million in his account. He refused to come to the Bribery Commission to give his statement. Successive commissioners who took over the commission made a public statement to the effect that it was an old inquiry and they were not aware of it….. There were so many complaints that were made against Government Ministers, but no proceedings have been initiated against any one of them. There were two major complaints that were made against the Governor of the Central Bank. One with regard to the use of EPF Funds that were used in purchasing Shares in the stock market, in violation of the guidelines in place that have to be adhered to in making such investments. Rs. 12 Billion was lost in this process. Millions of Grain Elevator Shares were purchased in the morning at Rs. 67 to jack up the market and the same was dropped to Rs. 40 per share a few hours later loosing hundreds of Million Rupees. This is the policy of Pump and dump by the Central Bank.

Thirty Million Euros were spent in purchasing bonds issued by Greece. It is not rocket science. Even an ordinary level student knew the alarming plight of Greece in regards to its financial stability. With the press of a button on the Google this information was available. It was bought from the secondary market. Not from the primary issue from the government. Within three months, the same had to be swapped with a cut of 53%. Complaints were made to the Bribery Commission two years ago. Up to date no legal proceedings have been initiated. High ranking corrupt officials who are responsible are still holding office. Can the civil society fight this menace of gigantic corruption alone? The answer is a definite No

To achieve this goal, the role played by the Media is pivotal.
Permit me to quote Edmund Burke who lived in the 17th Century. He said that, “ When good men do nothing, evil triumphs. Evil, sin and sinful men must be opposed.”

When good men do nothing, they are no longer good. Many have mistaken the notion that good is merely the absence of doing that which is wrong. It is Not so! One is good not merely because he does no evil, but because he is actively working for what is good”
There is no right to information in Sri Lanka. But it must be known by everyone in power or the power brokers that there can be no secrecy on the dealings of the public funds. The Executive has to discharge the principles of the doctrine of Public Trust. Decisions and the process of decision making of a government should be transparent. When this duty is acted in flagrant breach there is a greater responsibility on you the Journalists. Right to information is on the statute book in India and even in Maldives. In Sri Lanka an attempt was made in 2003 by the then regime. The government effort was futile as the same was dissolved prior to the act became Law. In another instance a private member bill brought by the opposition member Hon. Karu Jayasuriya a few years back was thwarted without at least listing it on the order paper.

Those seeking information in the public interest are welcomed with rotten eggs, clubs and self-styled “toy pistols”. A new doctrine in memory of Hambantota is in the making. It appears that the Police force, having vested its powers on the army Navy and the Air Force is on holiday. Deploying special Police unit for religious complaints is hogwash.

Permit me to quote John F Kennedy, when he said ½ a century ago.  “The very word “secrecy” is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it. Even today, there is little value in opposing the threat of a closed society by imitating its arbitrary restrictions. And there is very grave danger that “increased security” will be seized upon by those anxious to expand its meaning to the very limits of official censorship and concealment.”
“That I do not intend to permit to the extent that it is in my control. And no official of my Administration, whether his rank is high or low, civilian or military, should interpret my words as an excuse to censor the news, to stifle dissent, to cover up our mistakes or to withhold from the press and the public the facts they deserve to know.”John F Kennedy was a President who was held in high esteem then and now. He acted with dignity and decorum.
My dear Journalists; A press that is free to investigate and criticize the government is absolutely essential in a nation that practices so called Democratic Governance and is  dependent on an educated an enlightened citizenry. The struggle that has been carried out by you at risk to you and your loved ones is definitely not for your personal advancement. Many who were among you have had to make the supreme sacrifice. Many among you will be called upon to make that sacrifice in the days and years ahead. You are not oblivion to that reality.
Those of us in the civil society should bow our heads in your heavy loss, in the name of our land’s dimmed glory. But who weeps for you? The hour is  upon us when we must cry, though no mortal may ever hear us, but let’s awake from the fearful slumber fallen upon the people, and be ready to answer to future generations born and yet to be born. 
Thomas Jefferson himself suffered greatly by the press during his presidency. But he was a great believer in the ultimate triumph of truth in the free marketplace of ideas, and looked to that for his final vindication.
“The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.” -Thomas Jefferson – so he said in 1787.

Today the media freedom is in turmoil. However fierce the struggle may be—it may never be declared in the traditional fashion. It is not only the freedom of Media; our own way of life is under attack. Those who consider us their enemy are advancing around smothering the civility and tearing apart the social fabric.  The survival of our civil life is in danger. And yet no war has been declared, no borders have been crossed by marching troops, no missiles have been fired.  I can only say that the danger has never been clearer and its presence has never been more imminent.

It requires a change in outlook, a change in tactics, a change in missions—by the people, by every professional, by every businessman or by every Trade Union, by every media institution, by every media, by every newspaper and by every Journalist. For we are opposed to this monolithic ruthless conspiracy that relies primarily on covert means for expanding its sphere of influence—on infiltration instead of invasion, on subversion instead of elections, on intimidation instead of free choice, on white vans. It is a system which has conscripted not only vast human and material resources but colossal amount of ill gotten money into building of a tightly knit, highly efficient machine that combines State, Police, Military and political operations with all bastions that were nurtured and fostered for decades crashing down.
Let me quote the prophetic word of Lord Buddha which is also the Concluding phrase of the Constitution of Sri Lanka;
Devo Vassatukalena
sassasampatti hetucha
phito bhavatu lokocha
raja bhavatu dhammiko
May gods be pleased to bestowe us with timely rain.
May we be blessed with good harvest from our crops.
May all beings of the world be happy.
May the rulers be just and righteous at all times.
Let us dream, that one day we have a country where all communities co-exist peacefully with one another
Let us dream that all the religious groups have the right to believe in the religion of their choice,
Let ua dream that the rule of law has its pride and place in this country.
And so it is to the media — to the reporter of man’s deeds, the keeper of his conscience, the courier of his news — that we look for strength and assistance, confident that with your help man will be what he was born to be: free and independent..


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