Kishali Pinto-Jayawardena
In what precise manner can a fantastically unethical Government prescribe a Code of Ethics for the media? This is a highly relevant question given recent bombastic claims by the Government Spokesman that a draft Bill on Media Ethics is being circulated prior to implementation.
State media devoid of ethics
This Government has proved itself to be far worse than its most un-saintly predecessors in using the state media to witch-hunt and target dissenters. A few months ago, for example, we saw state media propagandists exceeding all boundaries of decency in slandering critics of the impeachment of Sri Lanka’s 43rd Chief Justice. In the process, judges of the Supreme Court, including the impeached Chief Justice were mercilessly character assassinated with impunity by attack hounds of the administration, unleashed on those whom they perceived to be their enemies.
As attack hounds are wont to do, they snarled and foamed at the mouth when the whip was cracked by their masters, thereby ridiculing not only themselves but this country. And the world sat back and marveled as to the despicable way in which Sri Lanka, notwithstanding its historic legal traditions in the Commonwealth, maltreated a sitting Chef Justice, the highest judicial officer of the land.
Yet it is this very Government which is now attempting to preach ethics to the media as we have been privileged to hear in recent days. The absurdity exceeds all expectations. It is as if one lunacy is succeeded only by the next while the Sri Lankan people are helpless spectators, by and large.
Refusal to enact an RTI law
This is also the very Government meanwhile which refuses to enact a Right to Information Act even though a carefully worked draft, (formulated under the chairmanship of a former Attorney General of unimpeachable integrity, the late Mr KC Kamalasabeyson PC), has been sitting idle at the Office of the Legislative Draftsman since 2004. At first, flimsy excuses were put forward that such an Act would be inimical to national security. It was pointed out in response that the draft exempts matters of national security from its purview and that anyway, the courts are vested with the delicate task of balancing the public interest with interests of the state in contested situations rather than, as was maliciously sought to be made out, the freedom of the wild ass being given to Right to Information (RTI) activists. Then, that unconvincing excuse was dropped.
Instead, we have the most disgraceful status quo of no excuses being given at all. This Government is not ashamed to say that it does not intend to enact a RTI law. Indeed, it does not see any reason to proffer any excuses for not doing so. Its arrogance exceeds all expectations. In the South Asian region, only Sri Lanka stands out in this unreasoning stubbornness to bring an RTI law to the statute books. It is true to say therefore that the country’s media community has singularly failed in this regard. And no amount of pious lectures on the virtues of RTI by guest speakers at routine conferences in Colombo will serve to detract from this uncomfortable fact.
At the core thereof of this refusal is the determination on the part of this Government to prevent scrutiny of its handling of public finance. This determination pervades every aspect of Government policy. It is because of this very reason that the media is being sought to be further strangulated by a ridiculous Code of Ethics. A Right to Information Act will never be enacted for that same reason. And Sri Lanka’s Bribery and Corruption Commission, despite moving at the speed of greased lightning against a Chief Justice fallen out of favour as well as some selected targets such as an allegedly corrupt District Judge, will continue to fail in disciplining monumentally corrupt politicians.
Where are the Government’s duties?
But let us see what this so-called Code of Ethics is all about. Its opening paragraphs state that ‘this Code protects both the rights of the individual and upholds the public’s right to know.’ Yet in what way can this Code protect ‘the right to know’ (which in essence, means the right to information) without imposing specific obligations in that regard on the Government? Where are the Government’s duties in that context? The 2004 discarded draft RTI law, for example, prescribed a duty upon the Government to disclose details of projects above a particular monetary value, thus ensuring the public right to know in the realm of public finance.
Most importantly, the draft stipulated a limited extent of whistleblower protection in Clause 34 protecting an employee of any public authority who releases official information, which is permitted to be released or disclosed on a request submitted under this Act, so long and so long only as such employee acted in good faith and in the reasonable belief that the information was substantially true and such information disclosed evidence of any wrong doing or a serious threat to the health or safety of any citizen or to the environment. This clause represented a compromise between those members of the drafting committee who were cautious about what they percieved to be the dangers of such a provision being misused by disgruntled public service employees and those who argued that the provision was essential to any modern law incorporating right to information standards.
True enough, this clause may be looked upon as being too narrowly worded. Best practice requires indeed that persons should be protected from prosecution for disclosing “any information so long as such employee acted in good faith and so on. However, it was assuredly an improvement from the rigid non-disclosure environment that currently prevails. Yet, the draft law with this and other equally good provisions, remain in limbo. And we have to suffer the ignominy of a supposed Code of Ethics which fashionably promises us the ‘right to know’ without any actual provision to that effect.
Use of vague and imprecise language
This supposed draft Code invites derision in other respects. While reproducing some existing provision in the self regulatory Code of Ethics promulgated by the Editors Guild of Sri Lanka, such as the duty to publish a correction or apology, it is replete with vague definitions, incorrect language and is generally repetitive. For example, the media is admonished against the publication of material amounting to contempt of court while in the same breath, it is also prohibited from publishing material termed in unforgivably imprecise terms as ‘against the integrity of the Executive, Judiciary and Legislative.’ What exactly is meant by this magnificent pronouncement is anybody’s guess. The more relevant question would perhaps be if any integrity is left of these three organs of the Sri Lankan State?
More dangerous and with specific ominous undertones are those clauses of the Code that prohibit the promotion of ‘anti-national’ attitudes. What is the meaning of the term, ‘anti-national’, pray? Is this term to be interpreted as ‘anti-government’? In yet another instance, journalists are enjoined not to ‘mislead the public.’ The chilling impact that such imprecise and heavily weighted language will have on an already stifled Sri Lankan media is not difficult to estimate.
A stupendously problematic move
These caustic observations are not to say that the Sri Lankan media should not be governed by a Code of Ethics. In fact, a self regulatory Code of Ethics does exist. It may be argued that self regulation has its drawbacks in that it does not compel obedience. Such arguments may have their own merits.
However, the answer to such dilemmas is not through a Government-imposed Code of Ethics in principle and in any event, certainly not by a Government so completely and utterly devoid of basic ethical standards as the present administration. We cannot but express extreme concern at such stupendously problematic efforts to further strangulate freedom of expression and information in this country.
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