Sri Lanka Supreme Court slams door on websites

| by Bob Dietz

CPJ Asia Program Coordinator

( May 18, 2012, Colombo, Sri Lanka Guardian) On Wednesday, Sri Lanka's Supreme Court slammed the door on a case about the shutdown of four websites that had failed to register with the government. In handing down its decision, the Court appeared to rule that freedom of expression in Sri Lanka is not an absolute right and can be restricted--and you don't need to pass a law to do so. The three-judge panel told the petitioners who brought the case--Sunil Jayasekara, convener of the Free Media Movement, and Udaya Kalupathirana, a member of the movement's executive committee--that they saw no reason for the court to hear any further arguments.

In 2011, Jayasekara and Kalupathirana brought the suit on behalf of themselves, the Free Media Movement, and the general public, after five opposition websites were blocked by the government. The five websites cited in the petition are Srilankamirror, Sri Lanka Guardian, Lanka Way News, Lanka News Web, and Paparasi News. One, Srilankamirror, registered after the petition was filed.

As he explained in an email to CPJ, J. C. Weliamuna, the well-known human rights lawyer, made this argument in front of the court:

The fact that some 41 web[site] owners have registered does not create a law or regulation. There is no law requiring the web owners to register. In fact the law and the judicial precedents in Sri Lanka [are] clearly that fundamental rights can be restricted but that can only be done by way of a law. Here there is no such law. The entire case is built on the basis that in the absence of a law or regulation, the Ministry of Media and the Telecommunication Regulatory Commission can arbitrarily block the websites.

Bringing into question issues of freedom of expression and the press made this a case of "fundamental rights." The Supreme Court could have allowed the case to proceed and--after more hearings, the presentation of proof, and the testimony of witnesses and experts, with opening and closing arguments from both sides--the court would have determined whether a fundamental right has been violated or not. But with Wednesday's decision, none of that will happen. There is no other legal recourse in Sri Lanka. Case closed.

As we said in our alert, "Sri Lankan government blocks websites," in November 2011, "Blocking online media is another step in the Sri Lankan government's plan to silence any media critical of its policies or personnel." We weren't wrong. On March 9, 2012, in a blog, "Sri Lanka media restrictions come amid rise in abductions," we reported that military authorities told all media organizations that they would have to get prior approval before releasing text or SMS news alerts containing any news about the military or police. (Weliamuna pointed out that no regulations to that effect have ever been formally published.) But a regulation was already in place which required mobile phone service companies to obtain prior approval of news stories with regard to national security. Wednesday's decision only adds more media restrictions, tightening the space for public discourse in Sri Lanka.

With no recourse at home, the next step might be for the Free Media Movement to take its case to the U.N. Human Rights Committee. Caution would be wise. The government has become hostile to those who, having failed to get justice at home, internationalize their grievances. In March, we noted an ugly government backlash after the U.N. Human Rights Council passed a resolution calling for an investigation into Sri Lanka's alleged abuses of international humanitarian law during its war with Tamil separatists. The government threatened violence outright against journalists who returned home after taking part in the Geneva discussions. A prime target, one among several, was Sandhya Eknelygoda, who has been trying to obtain information about the whereabouts of her husband, Prageeth, who disappeared on January 24, 2010 (see an update on that below). She came under harsh, intentionally intimidating questioning from government lawyers about her presence at the UNHRC. Before she returned home from Switzerland, her name had been denounced in the government-controlled media as one of the government's critics--several of whom have been denounced as "traitors."

In deciding not to hear the case of the blocked sites, Sri Lanka's Supreme Court might well have handed down a landmark decision that reaches well beyond whether or not the government can demand that websites register. The court's justices have paved the way for more of the anti-media policies streaming from the authoritarian Rajapaksa government. That stream has become a steady flow and looks to become worse.

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And, in another legal matter not unrelated, there has been a development in the ongoing hearings about the disappearance of Prageeth Eknelygoda. The magistrate's court hearing the complaint, brought by his wife Sandhya, decided it would call former Attorney General and current adviser to the cabinet Mohan Peiris to the court. He has come under scrutiny for remarks to the U.N. Committee Against Torture in Geneva, in November 2011, that Prageeth was alive and overseas. Given his stature within the government, it's a long shot that Peiris will ever have to appear. The case will go to the Appeals Court on May 31, where Eknelygoda's legal team expects further delays. Prageeth Ekenelyoda was a columnist and cartoonist for Lanka enews, a website which now operates out of England after its Sri Lanka offices were set on fire and some staff arrested.

Bob Dietz, coordinator of CPJ’s Asia Program, has reported across the continent for news outlets such as CNN and Asiaweek. He has led numerous CPJ missions, including ones to Afghanistan, Pakistan, the Philippines, and Sri Lanka.