A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
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Thiranjala Weerasinghe sj.- One Island Two Nations
?????????????????????????????????????????????????Sunday, July 2, 2017
However much they may genuflect to the concept of free speech, Sri
Lanka’s politicians are quite unable to shake off a constitutional
dislike of that theory in abrasive practice.
Remarkably clever traits of politicians
‘Yahapalanaya’ Ministers appear not to be different to their predecessors in office in that sense, excepting of course the Mahinda Rajapaksa regime (in its second term) which stood in a distinct and crude category of its own. But if one takes those aberrant years out of the equation, the current politicians are certainly as ridiculous in their fury as those of say, the Kumaratunga Government, for instance.
By itself, that is little surprise. Many familiar faces cling like
limpets to political office through the years regardless of the change
of guard in Colombo. Their ability to skillfully switch sides as soon as
they get a whiff of the political winds of fortune changing is nothing
short of remarkable. It appears to be the one thing that Sri Lankan
politicians are really good at. This is true also of relatively new
entrants to the political arena whose skills in learning the tricks of
the trade from their disreputable elders are pronounced.
So our politicians strut and pontificate as if they are the final
authorities on any given subject under the sun and woe betide anyone who
challenges that authority. This disagreeable trait is evidenced across a
range of portfolios, ranging from sports to justice. Last week, this
column ventured on a topic rather different to its usual theme, namely
the Minister of Sports’ unseemly public outbursts that the paunches of
Sri Lanka’s national cricketers were responsible for their poor
performances at the game.
Crucifying of the outspoken
Even if the kindest interpretation is given to the ministerial outburst and the concerns stated are justifiable, are these questions that should be publicly ventilated? Are these not matters to be resolved internally without demoralizing the national team? In what conceivable scenario can sportsmen or sportswomen play at highly competitive games under the glare of millions when there is such blatant political undermining of their performances?
The crucifying of those who are outspoken is not unique to the game of
cricket. We see this in other sports, professional fields or public
administration. In turn, there is the rise of the grotesquely mediocre
whose only skill is in pandering to political whims and fancies. The
impact of this gradual deterioration is now being felt. Certainly it
will worsen in time to come.
Indeed, there is a larger question in issue. Cricketer Lasith Malinga’s
punishment for stating that monkeys should not enter the nests of
parrots to mess around (impliedly referring to the Minister of Sports
even though no direct reference was made therein) was reportedly based
on his making statements to the media in breach of his contract with the
Sri Lanka Cricket Board.
Constitutional protection ‘trumps’ unjustifiable restrictions
This leads to an interesting question of freedom of speech by itself. A recent judgment of Sri Lanka’s Supreme Court may be instructive here. In Pelaketiya vs Secretary, Ministry of Education and others (SCM 28.09.2016), the Court (per Anil Guneratne J) ruled that the Constitution ‘trumps’ the prohibition in the Establishments Code that “the mass media should not be used as a means of criticism of the Government or other Government Institutions or to ventilate departmental grievances”.
The case concerned a female teacher who had been sexually harassed by
her superiors and who had, in the absence of any other relief, spoken to
the media regarding her travails. She was then interdicted on the basis
that she had given an interview to the media and aired her views
regarding an official inquiry contravening the Establishments Code.
Rejecting this view, the Court opined that freedom of speech is
essential for the proper functioning of the democratic process, pointing
out that public opinion plays a crucial role in modern democracy and is
of great importance.
It was obvious here that the predicament of the teacher, trapped in a
desperate plight as it were, occasioned the empathy of the Court. The
circumstances exemplified in the case are of peculiar application no
doubt. But the principle judicially articulated therein is of general
importance. A law or a contractual document which unjustifiably denies
freedom of speech to an individual will not stand up to the
constitutional test.
Right of legitimate criticism
This is not a new principle in our jurisprudence. Reflecting on the Pelaketiya case in these column spaces some months ago, I pointed to the norm-setting decision in the mid nineties when the arbitrary stopping of a state radio programmme on the basis that it ‘caused public unrest’ was declared to be unconstitutional by the Court. In the words of (the late) Justice MDH Fernando declared “…it is well to remember that the media asserts, and does not hesitate to exercise, the right to criticise public institutions and persons holding public office…such criticism must be deplored when it is without justification, (but) the right to make and publish legitimate criticism is too deeply ingrained to be denied.’
Unfortunately these ministerial outbursts are becoming more and more
common. The Minister of Justice’s threat to disbar a lawyer, Lakshan
Dias who had referred to attacks on Christian places of worship during a
televised programme is another such instance. The more sensible among
us would probably agree that attacks on religious places generally
leading to inflamed tempers are not casual matters to be airily and
flamboyantly tossed around before television cameras. Greater caution
may have been in order.
But that does not mean that the Justice Minister’s intemperate outburst
can be tolerated. In the first instance, the Minister should be asked to
look at his law books and understand the importance of the separation
of powers. The disbarment of lawyers is a peculiarly judicial function,
not within executive powers.
Indeed ‘Yahapalanaya’ politicians would do well to listen to their own
flowery assurances when they campaigned to come into power more than two
years ago. Hopefully they might feel slightly ashamed if they did.