Competent authority vs. the press

This is a tale of censorship. Of how a government belea guered by war with a deadly opponent, chose to muzzle its media. Of how the media took on the government, and the way the court dealt with it. The lessons are plenty to learn from the "heightened" media censorship announced by the Sri Lankan government on 3 May.

At first impact, however, neither the press nor the public was unduly perturbed. After all, the country had been under emergency rule for the better half of the past two decades and had witnessed successive rulers summarily using emergency law to control the press for varying ends and to varying degrees. And there was nothing to indicate that this current round of censorship was going to be anything worse. Matters soon became clearer.

Towards the end of the week after the censorship regulations were announced, copies of the Sunday newspapers that were sent to the Competent Authority were coming back blotted out. As one sub-editor at The Sunday Times put it, "It is shock upon shock. All our copies are being sent back, slashed to senseless rubbish." This sense of horror was echoed in newspaper offices throughout Colombo—news reports, columns, cartoons, all were being dealt the same black markers.

The full glory of Competent Authority Ariya Rubesinghe´s handi¬work was there for all Sunday readers to see as they settled into their weekend reading. Page after page of Sunday´s newspapers highlighted enormous sections which had been deleted by Rubesinghe, including political comment, satire, social comment, as well as legal analyses of the May regulations themselves. The connection of the censored items with national security or public order was hard to find. It was a censoring without parallel in the history of the country´s media. Only the pages of the govern¬ment-controlled Sunday Observer were left untouched. A collision course had been set between Rubesinghe and the Sri Lankan media, which was to reach a dramatic climax three months later.

Rubesinghe the powerful
This fresh spate of censorship was all the more surprising since Rubesinghe had always prided himself on his cordial relations with the media. Neither was he new to the office of Competent Authority. At the time of the May regulations, he was, in any event, acting in the post under previous censorship strictures imposed in 1998, essentially banning the publication or transmis¬sion of "sensitive military information". (These regulations are imposed under presidential powers specified in the Public Security Ordinance, which is a pre-Indepen-dence enactment.)

The May regulations were put in place in the immediate aftermath of the mid-April military disaster, which resulted in the Tigers capturing vital territory including the Elephant Pass Military Complex—undoubtedly one of the se¬verest setbacks for the Chandrika Kumaratunga government since it came to power in 1994.
They empowered the Competent Authority "to take any measures and give such directions" necessary against the media to protect national security, public order, the maintenance of essential services. He could direct editors to submit documents, editorials and articles prior to publication. Sanctions for contraven¬tion of such directives could lead to banning of the newspaper and shutting down of its printing press. The Competent Authority was also empowered to act when he was of the opinion that "there is or has been or is likely to be" publication of matter in defiance of the prohibited categories. The powers vested in Rubesinghe were thus considerable and he wielded them in addition to his powers under the 1998 regulations.

This time, he used his authority with a vengeance. As protests streamed in from all corners of the world, censorship was further tightened. All live political broadcasts on radio and television were banned. Cautionary letters were sent to the newspapers opposing the injunction. Flexing his censorial muscle to the fullest, Rubesinghe commenced an editorial ban and press closure of two newspapers—the Jaffna-based Uthayan and the uncompromisingly anti-government The Sun¬day Leader. He said they had flouted his authority and continued to publish material infringing on national security. This was meant to serve as an effective warning to other newspapers contemplating similar rebellion.

Meanwhile, the censorship agenda was strengthened with the induction of a second Competent Authority, Sripathi Suriarachchi, an overt supporter of the government and earlier member of the government electoral media team. However, amidst all this unnecessary show of muscle-power, the Kumaratunga administration seemed to have failed to reckon with the fact that adversity can unite even the most reluctant of bedfellows. The cumulative effect of the draconian clampdown was an unusual coming together of Sri Lankan editors of mainstream and tabloid newspapers in all the three languages—Sinhala, Tamil and En¬glish—to mount legal challenges to the Competent Authority before the Supreme Court.

More bad news awaited them there, however. In an unlucky coincidence, merely a week after the fresh censorship laws came in place, the Supreme Court delivered a judgement upholding the 1999 strictures. (The petition had been filed by well known human rights activist Sunila Abeysekera.) While acknowledging the importance of an independent press in a democratic society, the Court declared that the 1999 regulations maintained a fair balance between the free flow of information and the legitimate aim of protecting national security. This judgement was seized upon by the government media to indulge both in lampooning Abeysekera, and maintaining that the present censorship laws were right and proper.

Guild vs. Authority
Undeterred, in late May and early June, a spate of petitions was filed in the Supreme Court, challenging the new censorship both in principle and in its implementation. To begin with, The Sunday Leader when to the Court against the ban on its editorial offices and the sealing of its printing presses. Three days later, The Editors Guild of Sri Lanka, comprising 10 editors of national newspapers in all three languages combined as never before to file a petition against unfair and arbitrary action by the Competent Au¬thority. Successive petitions by deputy editors, columnists, cartoonists, photographers together with a petition by a political activist and a law lecturer followed.

These petitions, in fact, marked the first time Sri Lankan journalists had come before court, challenging specific censoring of their articles as opposed to the banning of a newspaper. Their grievances focussed on discriminatory action by the Competent Authority, including one no¬table instance where a statement by the Editors Guild criticising the censorship had been censored in four private newspapers, but inexplicably allowed to be published in its entirety in a state newspaper. Other complaints related to the banning of cartoons and editorials analysing the censorship, columns commenting on relations between India and Sri Lanka, and the audacious alteration of phrases, such as dropping of "inadequately" from an article which carried reference to "most inadequately trained troops".

The Court granted leave to proceed in all the cases. Meanwhile, public pressure mounted against the censorship and the government began to promise a relaxation of the strictures. But the really big news was just around the corner. In late June, the Supreme Court declared that the appointment of the Competent Authority was in itself illegal. It ruled that the May Regulations, under which Rubesinghe had acted, had no specific provision for the appointment of a Competent Authority. The Sri Lankan media found cause for joy.
But the government was unperturbed by this reprimand. Hardly a week later, a new regulation was announced by the president, re-appointing Rubesinghe as the Competent Authority in accordance with the Supreme Court judgement. And it was symptomatic of the imperious insensitivity of the Kumaratunga administration that the amended July regulations now expressly forbid reports on procurement of military supplies. Earlier regulations did not have this stricture, a result of media protests that it would only inhibit reporting on corruption in the armed forces. These concerns were raised before the Supreme Court in late July when the Editors Guild petition and connected petitions came up for hear¬ing. The Court now has ordered the Competent Authority to meet up with the editors before the end of the month to finalise workable guidelines under the new regulations.

Since then, Rubesinghe´s actions have been far more circumspect, and he has confined his scissors to strictly military-related news. But the censorship continues. From a larger perspective, in a county where the northern war has debilitated the people—economically, politically and morally—restriction of military information will be sufficient to confer a political edge to a government facing a crucial parliamentary election in a few months´ time. The Sri Lankan media may have won part of the battle, but it certainly has a long way to go before it can even think of winning the war against a political administration that came to power with extravagant promises of media rights, and became responsible for some of the darkest days in Sri Lankan media history.