Army press release, and legality of punishing journalists

By Namini Wijedasa
Courtesy: Lakbima News

(November 01, Colombo, Sri Lanka Guardian) A recent press release from the Media Centre for National Security has warned of prosecution for “publishing false media reports using identities of senior army officers” but it remains unclear under which legislation journalists will be hauled up and for what specific crime.

The communique, issued under the signature of Military Spokesman Brigadier VUB Nanayakkara, states vaguely that: “It has already been observed that certain individuals who intend to engage in political work continue to use names of serving senior Army Officers for baseless reports in some print media and websites.”

It does not say who the “certain individuals” are. It does not reveal who the “serving senior Army Officers” are. It does not state what “baseless reports” or which “print media and websites” have proven problematic.

Which legislation?

Citing Section 120 Penal Code, the Gazette Extraordinary of the Democratic Socialist Republic of Sri Lanka, the Army Act and the Emergency Regulations, the press release says officers serving in the army are “completely barred from political work and use of their names for personal political gains and agendas for such wrong reports is therefore illegal and liable for prosecution”.

The press release quotes a paragraph of law, apparently Section 120 of the Penal Code, but is not complete: “Whoever by words, either spoken or intended to be read, or by signs; or by visible representations, or otherwise, excites or attempts to excite feelings of disaffection to the President or to the Government of the Republic, or excites or attempts to excite the People of Sri Lanka to procure, otherwise than by lawful means, the alteration of any matter by law established, or attempts to raise discontent or disaffection amongst the People of Sri Lanka, or to promote feelings of ill-will and hostility between different classes of such People, shall be punished.”

Section 120 reads: “Whoever by words, either spoken or intended to be read, or by signs, or by visible representations, or otherwise, excites or attempts to excite feelings of disaffection to the President or to the Government of the Republic, or excites or attempts to excite hatred to or contempt of the administration of justice, or excites or attempts to excite the People of Sri Lanka to procure, otherwise than by lawful means, the alteration of any matter by law established, or attempts to raise discontent or disaffection amongst the People of Sri Lanka, or to promote feelings of ill-will and hostility between different classes of such People, shall be punished with simple imprisonment of a term which may extend to two years.”

The highlighted phrases are missing from the press release. In the Penal Code, Section 120 also comes with an explanation: “It is not an offence under this section by intending to show that the President or the Government of the Republic have been misled or mistaken in measures, or to point out errors or defects in the Government or any part of it, or in the administration of justice, with a view to the reformation of such alleged errors or defects, or to excite the People of Sri Lanka to attempt to procure by lawful means the alteration of any matter by law established, or to point out in order to their removal matters which are producing or have a tendency to produce feelings of hatred or ill-will between different classes of the People of Sri Lanka.”

The explanation was not in the press release.

Grey areas

The press release cites a Gazette Extraordinary of the Democratic Socialist Republic of Sri Lanka but provides no reference number. It cites the Army Act but does not name the relevant section. It cites the Emergency Regulations but does not say which set of Emergency Regulations, as there have been many and some no longer apply.

“The Government reiterates that those failing to do so are liable for prosecution,” the communique‚ asserts. “Secretary Defence has already instructed the Police and the authorities to take necessary action with immediate effect. Hence, publication of such false reports using names of those officers should be stopped herewith.”

The above paragraph does not specify what “failing to do so” refers to. It does not say under which legislation the police and “authorities” (not sure, also, which authorities) are required to act.

The danger in a press release this ambiguous is that journalists are uncertain where they stand. It is also exceedingly ominous for any government to invoke the Penal Code to deal with mere speculation - or, indeed, the use of names of serving army officers in what they interpret to be “baseless reports”.

“If they are threatening to use Section 120 of the Penal Code, the same article can then be applied to just about anything the government doesn’t like!” commented a senior lawyer, requesting anonymity. “That is a dangerous development. Also, you must remember that the Penal Code was drafted in 1820, during colonial times. We are living today in an entirely different context.”

“The government is dealing with a specific issue,” he said. “They must have very specific regulations for it. The way things are now, it is not a question of what a journalist does wrong but what they say a journalist is doing wrong. You never know how they will interpret this. When they introduce something that has such a serious impact on media freedom, they must at least have the courtesy to do it properly”

“Personally, I can’t see a reasonable interpretation of the offence you would commit under this (press release),” said another senior lawyer, also requesting anonymity. “It makes no sense. Rather, it only makes political sense. If I were you, I would politely ask for references so that you could advise yourself properly.”

Speculations are being published - Hulugalle

Brig. Udaya Nanayakkara, who signed the confusing press release (sse main story) was abroad last week. Lakbima News asked MCNS Director Laxman Hulugalle what “offences” would be punishable in his view.

“Speculations are being published,” he said. “There is no authenticity to certain news. No confirmation, nothing. Any news or information must be valid and confirmed. Certain newspaper, websites and so on are publishing or broadcasting speculation.”

He chose not to name specific reports. “Let’s say you are writing about me,” he described. “You must have confirmed information about me. If it’s something about the media centre, you can call me and clarify before writing. If somebody says in an unnamed website that Laxman Hulugalle will be removed from his post tomorrow, it is not verified. But independent TV channels or others quote that and give publicity. That is unfair on me. You have not got clarification from me or the defence ministry, but you are quoting from an unnamed website operating from England, America or something like that.”

“There is a law in the country,” he continued. “As a government officer, if I want to contest tomorrow, I have to resign. My level of status is different. I have no political rights in my position. Certain public officials have political rights. They don’t have to resign. They can get leave and contest. You can’t go beyond the law.”

“Let’s say about Sarath Fonseka,” Hulugalle said. “He has not told anywhere whether he is contesting or not. But papers carry various information. It is unfair on him as well as on the government. These are the things. In the media, there are certain rules and regulations which you all follow when you write something. There is authenticity, validity and verification.”

“Once the first article is published, the damage is done,” he insisted. “Corrections will not have the same impact. According to the law of the country, certain things are wrong. If he (Fonseka) says tomorrow that he will contest, myself or anybody can’t censor.

Then he has to follow certain rules and regulations in the army. The speech he made at the Washington temple, nobody can say not to publish. Authenticity, proof, everything is there. We can’t decide how you publish that.”

Asked about the legislation that will be invoked to prosecute journalists in this regard, Hulugalle said he was not in the country when the press release was issued. “I have to find out and let you know,” he said. “Till then, you go ahead with the story.”

Asked to respond to opposition remarks that the press release was a sign that the government was afraid of Fonseka, Hulugalle said: “I don’t want to make any comment on General Fonseka yet. Even at this moment, he is chief of defence staff, an official under the ministry of defence. He has not informed the ministry of defence or defence secretary of his intentions. We don’t have to panic about this because at this moment we don’t have any information.”

-Sri Lanka Guardian