Court grants
leave to proceed with ‘Leader’ rights plea
By Chitra WeerarathneThe Supreme Court yesterday, granted the Leader
Publications Pvt. Limited leave to proceed with the fundamental rights violation plea,
challenging the ban imposed on the Sunday Leader and Irida Peramuna Newspapers, by the
competent Authority.
The Court fixed the application for interim relief to be supported on June 6, when the
Additional Solicitor General Saleem Marsoof President’s Counsel, submitted to Court
that he was not ready to argue the issue on the interim relief, due to the short notice he
had received.
Due to the matter of urgency, Romesh de Silva, President’s counsel, moved for a
short date for the interim relief to be supported. Court fixed for June 6.
However leave to proceed was granted on the alleged arbitrary treatment, the
infringement of the freedom of Expression and the infringement of the Right to practice
the lawful profession of choice.
Romesh de Silva PC with Palitha Kumarasinghe instructed by G. G. Arulpragasam appeared
for the petitioner, the Leader Publications (Pvt.) Limited.
Romesh de Silva, in supporting the application to obtain leave to proceed said that the
Gazette Extraordinary No. 1,131/20 dated May 10, 2000, was not presented to Parliament
within two weeks. Therefore its validity had lapsed. It is null and void.
In this gazette notification of May 10, 2000, section 14 of the Emergency Regulation
stated in the gazette notification of May 3, 2000 was amended and substituted. Hence
section 14 stated in the first are lapsed, when the substitution made in the gazette of
May 10, was not placed before Parliament within two weeks, and therefore, became void in
Law.
The competent Authority and the Advisory Council was appointed under section 14 of the
Emergency Regulations.
Once the gazette becomes a nullity, the appointments made thereunder and the banning of
newspapers done by these appointees become a nullity, Romesh de Silva told court.
Counsel explained that the petitioner, company, publish independent newspapers and
engaged in investigative journalism. These newspapers, published strong expose columns
about the government of the day.
At this turn, Justice R. N. M. Dheeraratne referred to a letter written by a Senior
Assistant Secretary of the Presidential secretariat, to Mr. Lasantha Wickramatunga, the
letter being dated, March 16, 2000. This letter is an annexure to the petition marked P
13.
Justice R. N. M. Dheeraratne to the Additional Solicitor general Mr. Saleem Marsoof PC:
Should any public officer put his signature to any document of this nature, and send it
to a member of the public.
ASG: It could be a reflection to the nature of the letter received by that officer.
Justice R. N. M. Dheeraratne to ASG: Do you condone this kind of letter signed by a
senior Assistant secretary of the Presidential secretariat.
This particular letter signed by a Senior Assistant Secretary of the Presidential
Secretariat said that, "I wish to inform you that this office forwards correspondence
to Her Excellency the President only when it emanates from human beings and not from
worms. We have therefore consigned your communication to the rubbish heap".
Romesh de Silva further submitted to Court that since May 22, 2000, the Sunday Leader
is banned from printing, publishing and distributing. The printing press used by the
petitioner has been sealed since then.
Although no allegations are made against the Sinhala paper, the ‘Irida
Peramuna’, the petitioner is unable to publish even that, since the press is sealed.
Counsel also said that the banning imposed for six months is excessive of the emergency
regulations, since the emergency regulations get the approval from parliament for one
month only. Around 750 persons have lost employment due to this banning.
Mr. Saleem Marsoof, the Additional Solicitor General , PC with Senior State Counsel
Uditha Egalahewa appeared for the Competent Authority, Ariya Rubasinghe, the IGP and the
Attorney General, cited among the respondents.
The bench comprised, Justice R. N. M. Dheeraratne, Justice A. S. Wijetunga and Justice
L. H. G. Weerasekera.
Romesh de Silva also explained to court that the petitioner was never given a proper
warning by the censor. The article in question published in the Sunday Leader of May 21,
2000 at page 1, under the heading ‘Palaly not under attack’ was not prejudicial
to the National Security. The censor had only sent the petitioner a directive in respect
of national security on May 7 and May 19.
The case will be heard again on Tuesday, in respect of the application for interim
relief, seeking a stay order, on the ban imposed and the sealing of the press.
Midweek Politics
Hot air and political fumes over gas
by Prasad Gunewardene
Even before the cabinet ministers angered over the latest price hike in gas vented hot
air at Thursday’s cabinet meeting,President Chandrika Kumaratunga was the first to
burst out in anger over the price hike. She told her ministers that the Shell Gas Company
has been very unreasonable in increasing the price by such an amount at a time when the
people under went hardships because of the war. "I expect not only the people but
also big companies to make sacrifices at this hour of need", she told the ministers.
Ms. Kumaratunga who appeared very annoyed told her ministers that Shell Gas should
consider suspending this increase till the present crisis was over.
Minister of Provincial Councils,Alavi Moulana who is also a trade union veteran of the
Kumaratunga administration was the first of the ministers to speak against the price hike.
Moulana said that the company increases this year of up to twenty per cent was
unreasonable. And to increase in such a way again violated the agreement. Though minister
Moulana claimed it violated the agreement, the agreement between the government and the
Shell Gas is yet to be made public. The opposition in parliament on many occassions called
for this document but the government did not table it in the House.
Supporting the stand taken by the President, Labour Minister John Seneviratne opined
that large companies should also make a sacrifice in the interest of the country at a time
the nation was at war. Seneviratne asked what these companies did when prices in the world
market were low. Minister Batty Weerakoon backed his colleague Seneviratne to request the
government to ask for profits made when world prices were low. Moulana at this juncture
chipped into say that the government must first stop all extravagant activities of these
companies. "They spend lavishly on tamashas and then burden the poor people saying
they are running at a loss", Moulana noted.
Justice Minister and Deputy Finance Minister Prof. G. L. Peiris expressing his
displeasure on the heavy increase in gas price supported his colleagues saying that the
government must act swiftly to reduce this burden of the people. Fisheries Minister
Mahinda Rajapakse asked how the PA could go in for the next election placing heavy burdens
on the people by increasing electricity, water, telephone and now gas prices. The entire
cabinet backed Rajapakse to tell the President that they would not be able to go to their
electorates to face the people again if some remedy was not found for these issues.
The entire cabinet was of the opinion that the gas price hike should be suspended in
view of the present situation in the country. President Kumaratunga pointed out that the
Shell Gas should have co-ordinated and co-operated with the government before deciding on
price increases at this crucial hour. "Madam, when they signed the agreement they
said they would pass the profits when world prices were low onto the consumer and now we
must ask what they did to those profits", Minister Moulana screamed. "Yes,we
must do that and monitor what these big companies do", backed Minister Weerakoon.
President Kumaratunga who listened to the views of her ministers urged her Deputy
Minister Prof. Peiris to direct the Treasury to summon the Shell Gas management
immediately for talks while insisting that the Shell Gas should at least reduce the
increase by fifty per cent if they did not agree to suspend the increase. Accordingly the
Treasury summoned the Shell management for a meeting on Thursday late evening and it
continued till late night. A Shell Gas spokesman yesterday reiterated that the increase
stood as it is adding that he was not aware of a meeting on Thursday night. He said the
prices had to be increased as the government withdrew the subsidy last year and the
company had no alernative. When asked whether the agreement provided for three increases
in one year, the spokesman declined to divulge whether such provision existed in the
agreement.
The government and opposition claim that the agreement only provided an annual ten per
cent increase and the Company was acting in violation of the agreement. The question that
is being asked by the opposition is why the government was not acting if Shell Gas had
violated the agreement.
Batticaloa
civilians vacated by LTTE returning home
About ten thousand civilians who were forced to vacate their residences in Batticaloa
by the LTTE a few days ago are returning to their homes, the Special Media Information
Centre (SMIC) of the government said yesterday.
The SMIC said that it has now been revealed that the LTTE had forced these civilians
out of the area in order to fire a heavy volume of mortars into the Vavunativu Army camp.
However the LTTE could not achieve their aim as troops stood ground courageously amidst
LTTE mortar fire. Due to pressure from the displaced civilians for disrupting their life
the LTTE is reported to have withdrawn most of their cadres and mortars from the area.
Further, civilians in Batticaloa area have strongly condemned the recent murder of
innocent civilians including children by the LTTE.
The SMIC said that in Jaffna Terrorists fired mortars at the Security Forces defences
in Chavakachcheri area. Troops retaliated with 120 mm mortars.
Security Forces fighting patrols operating ahead of the defences in Chavakachcheri area
killed fifteen terrorists at four different locations during the last twenty four hours.
Three soldiers were wounded during the same period.
Supreme Court
judgement:
Ministry, BOI ordered to desist from implementing Eppawala Phosphate Agreement
by V. Varathasuntharam
The Supreme Court yesterday held that the proposed agreement relating to the Eppawela
Phosphate deposit is an imminent infringement of the rights of the petitioners who
complained that they would lose their lands and their means of livelihood.
Court directed the Ministry of Industrial Development, Board of Investment of Sri Lanka
and other respondents to desist from entering into any agreement relating to the Eppawela
Phosphate deposit until certain guidelines are observed.
Court detailed that the signing of the agreement be put off until a comprehensive
exploration and study relating to the locations, quantity and quality of apatite and other
phosphate minerals in Sri Lanka is made by the Geological Survey and Mines Bureau in
consultation with the National Academy of Sciences of Sri Lanka and the National Science
Foundation and the results of such exploration and study are published.
The fifty-four page judgement was delivered by Justice Amerasinghe with Justice
Wadugodapitiya and Justice Gunasekera agreeing.
Court also ordered the state to pay each of the seven petitioners Rs. 25,000 as costs.
Court ordered the fifth respondent Sarabhumi Resources Ltd., to pay Rs. 12,500 as costs to
each petitioner. It also ordered the seventh respondent Geo Resources Lanka Ltd. to pay
Rs. 12,500 as costs to each petitioner.
The order stated that the proposed agreement seeks to circumvent the law and in its
implementation is biased on favour of the company as against members of the public. The
petitioners, are therefore entitled to claim that there is an imminent infringement of
their fundamental rights under Article 12 (1) of the Constitution.
The proposed agreement plainly seeks to circumvent the provisions of the National
Environmental Act and the regulations framed thereunder. The safeguards ensured by the
National Environmental Act and the regulations framed thereunder with regard to publicity
have been (virtually) negated by the provisions of the agreement regarding
confidentiality. Publicity, transparency, and fairness are essential if the goal of
sustainable development is to be achieved.
The counsel for Sarabhumi Resources and Geo Resources Lanka with whom the Deputy
Solicitor General Associated himself submitted that the government and not this court is
the "Trustee of the natural resources of Sri Lanka". Thus as long as the
government acts correctly, the court will not put itself in the shoes of the government.
The issue before court is not the question whether this court or the government is a
"Trustee" and whether there has been a breach of trust but whether in the
circumstances of the case the rights of the petitioners guaranteed by the constitution
have been violated.
This court is neither assuming a role as "Trustee" nor usurping the power of
any other organ of the government. It is discharging a duty which has in the clearest
terms been entrusted to this court and this court alone by the constitution, the order
concluded.
The first to fifth petitioners Tikiri Banda Bulankulama, Ratnayake Mudiyansalage
Ranmenike, Palitha Nissanka Bandara, Dissanayake Kiribandage Ranbanda and P. Arachchige
Kiribanda are land owners and dairy farmers in the Eppawela area.
The sixth petitioner Dissanayake Ukkubandage Seneviratne is a teacher and owner of an
extent of coconut land in Eppawela.’
They stated that they are in danger of losing the whole or some portion of their lands
and their means of livelihood if the proposed mining project is implemented.
The seventh petitioner is Ven. Mahamankawala Piyaratne thera, the Viharadhipathi of the
Galkanda Purana Viharaya. He stated that the Viharaya and the paddy lands that sustain it
are in danger of being destroyed if the mining project is implemented.
R. K. W. Goonesekera with Ruana Rajapakse and Anusha Dharmasiri appeared for the
petitioners.
Deputy Solicitor General K. Sripavan with Senior State Counsel B. J. Tilakaratne and
state counsel Anusha Navaratne appeared for 1st, 3rd, 6th and 8th respondents.
Chulanthi Panditharatne appeared for the 4th respondent.
Romesh de Silva (PC) with Harsha Amerasekera and Sarath Kaldera appeared for the 5th
& 7th respondents.
Drugs made in SL to assist WHO
By Irosha Weththasingha
Drugs manufactured in Sri Lanka will for the first time assist the World Health
Organization to tackle the incidence of Filariasis in different parts of the world.
Creating a milestone in the medical history of Sri Lanka, ten million tablets of
Diethylcarbamazine 50 mgs, a drug manufactured by the State Pharmaceuticals Manufacturing
Corporation (SPMC) in Sri Lanka was handed over to the World Health Organization (WHO)
representative yesterday. This is the first time a drug manufactured in Sri Lanka is being
exported to another country. This drug is used against Filariasis and it is being supplied
to Egypt as a part of WHO’s campaign to eliminate Filariasis worldwide.
Speaking at a ceremony held to hand over the consignment to WHO, at the factory of the
SPMC, Minister of Health Nimal Siripala de Silva said that the time has come for Sri Lanka
to export commodities other than tea, rubber and coconut. "We competed with several
multinational companies to get this tender from the WHO," he said pointing out that
because of the high quality of the drug Sri Lanka managed to secure the order which will
give immense international recognition to Sri Lanka.
The minister said that they were not going to be content with merely exporting one
drug. "We plan to export other drugs as well to the world, because we are confident
that drugs produced by the SPMC is of high quality," he said. The minister said a
team of WHO experts will visit Sri Lanka on June 19 to assess the quality of drugs
manufactured by the SPMC. "If these experts are satisfied with the conditions they
would issue the Good Manufacturing Practices (G.M.P) certificate, which will enable Sri
Lanka to get registered as a regular supplier of medicine to the WHO". The minister
said that if the country becomes a regular supplier for WHO, many job opportunities would
be created in the pharmaceutical manufacturing sector.
Speaking at the ceremony Chairman of the SPMC Dr. Kahanda Liyanage said that this is a
historic occasion for both the corporation and Sri Lanka. He said that the SPMC has
already received another two orders from the WHO for the same drug. According to these
deals, one million tablets of Diethylcarbamazine will be exported to Fiji and another one
and half million tablets to Myanmar. "This indeed would give an immense boost to the
country’s reputation as a pharmaceutical manufacturer," Mr. Liyanage said.
The WHO representative for Sri Lanka Dr. A. S. Abdulla said that it is a new experience
for WHO to receive drugs from Sri Lanka because all these years the WHO has been supplying
medicine to Sri Lanka. He said that the drug was chosen because of its high quality and
efficiency. "The WHO is looking forward to continue this good relationship with Sri
Lanka in the future too," he said.
Karu to monitor elections
in Zimbabwe
Karu Jayasuriya, Chairman of the United National Party and the Leader of the Opposition
of the Western Provincial Council, has been invited by the National Union of South Africa
to serve as a Member of the team of International Observers to Monitor the General
Elections in Zimbabwe scheduled to be held in June this year, the UNP said yesterday.
Sherman
de Rose’s complaint against The Island dismissed
The Press Council last week dismissed a complaint by the Executive Director of
"Companions of Journey" Sherman de Rose against "the Island" newspaper
for publishing an article entitled "Lesbian conference in Colombo?" on August
20, 1999 and a letter by one of its readers P. Alles which he claimed promoted rape.
The five member Press Council headed by Wijedasa Rajapakshe in dismissing the complaint
with costs fixed at Rs. 2,100 payable by de Rose observed that "The Island"
newspaper had discharged their duties by publishing public opinion aimed at educating
their readers on such a controversial issue.
The judgement points out that Lesbianism itself is an act of sadism and salacious
publication of any opinion against such activities does not amount to a promotion of
sadism or salacity, but any publication, which supports such conduct is an obvious
promotion of all such violence, sadism and salacity. Therefore the complainant is the one
who is eager to promote sadism and salacity and not "The Island" newspaper.
"On the other hand, if the complainant argues that he has a right to support
people who are involved in such abnormal and immoral activities, we have to concede that
the people, who respect their humanity, culture and other respected norms in human society
also have a right to support the people who live in the society in a cultured and
dignified manner with their accepted social norms. They have a right to publish their
criticism over abnormal, unnatural and inhumane conduct of the people through the
press."
The full text of the judgement is as follows
Mr. Sherman De Rose, Executive Director of ‘Companions on a Journey‘, by his
complaint dated 24th August 1999, states that his organization provides organizational
support for the women’s group who announced their intention of holding a lesbian
conference in Colombo and it further supports to maintain rights and dignity of gay and
lesbian people in Sri Lanka. He states that he was concerned about an article published in
‘The Island’ newspaper in its issue dated 20.08.1999 under the heading "
Lesbian Conference in Colombo?" in breach of media ethics and it advocates criminal
offence of rape. Therefore, he complains the Council to take legal action against the
responsible persons who published the article in dispute.
The respondents appeared before the Council on receipt of notice issued by us and
denied the allegations levelled against them. At the inquiry, both parties agreed to
dispose of the inquiry on written submissions without leading any evidence. Accordingly,
written submissions were tendered.
The learned counsel for the complainant submitted that he does concede the rights of
the public to publish their opinion, but the last paragraph of the article is not a mere
expression of an opinion as it advocates and promotes the crime of rape and it is improper
for publication in any newspaper in terms of Section 9 of the Sri Lanka Press Council law.
He further submitted that it violates Rule No. 8 of the Code of Ethics for journalists,
which reads as follows.
‘A journalist shall not present any matter in a manner designed to promote sadism,
violence or salacity.’
Rape is a violent and sadistic act and it is an offence under the Penal Code. Hence the
learned counsel submitted that the said article promotes atrocity and illegal rape of
lesbians in violation of the Penal Code.
On the other hand, the respondents argued that they published an article about a
Lesbian Conference to be held in Colombo and thereafter received a letter to the Editor
written by one P. Alles for publication. Since it was a matter of public interest, they
published it in their paper as it contained the opinion of their readers.
The learned counsel for respondents has submitted that the homosexualism and
lesbianism, both are offences under the law and lesbianism falls within the meaning of
acts of gross indecency between persons and unnatural and grave sexual abuse within the
meaning of Section 365 A of the Penal Code as amended by Act No. 22 of l995. But the
learned counsel for the complainant contended that as to whether the lesbianism is
illegal, is immaterial for this case and to be considered upon impropriety of the article.
Respondents argued that the Constitution has recognized the family as the basic unit of
the society and the government is bound to protect family unit in terms of Article No.
27(12) of the Constitution. Family unit basically consists of a man and a woman. Two men
or two women cannot make a family unit. Therefore, they argued that lesbianism is illegal,
immoral and obscene in our law.
The respondents also contended that when people publish their opinion to support
immoral and obscene activities, the people who respect their social and cultural norms of
society also have right to express their own opinion in opposition to such indecent
activities and such right is guaranteed by Article 14 of the Constitution.
Now, we proceed to consider the complaint of the complainant on the basis as to whether
the said article has violated Section 9 of the Sri Lanka Press Council Law and the Code of
Ethics for the Journalists. Homosexualism is an offence in our law. Lesbianism is at least
an act of gross indecency and unnatural. We are not going to decide as to whether it is an
offence under the Penal Code in these proceedings. If people of this country have a right
to publish that a conference of lesbians would be held in Colombo, the people have a right
to express their opinion either for or against. One of the readers of ‘The
Island’ namely, P. Alles states in his article to the editor that he feels it
appropriate that for the police to get the convicted rapist to give zest and relish to
misguided wretches to understand the reality of natural sexual pleasure than the unnatural
sexual activities. Probably the writer and publisher may have considered that lesbianism
is much more vulnerable and improper than publishing an article condemning the proposed
lesbians’ conference. It is not a letter addressed to the police to do it or the
police was not acting upon such views published in media. Similarly a media may express
one’s view to say it is advisable for the police to kill murderers or thieves on the
spot without recoursing to law. It does not mean that the media is advocating crimes. What
it means is that it pronounces one’s opinion.
In considering the disputed article, we cannot concede as argued by the complainant
that there is an explicit advocacy of rape.
Throughout the letter, it suggests that lesbianism is improper and should not be
advocated to promote such immoral and unnatural sexual activities. Somehow, misguided and
erratic women should be corrected and allowed to understand the true sense and reality of
life. Although the article appeared that the writer was emotionally involved in the
criticism and used harsh language, it does not mean the writer or publisher were
influenced by any malice or grudge towards any particular individual except for their hate
and unpleasantness about the spreading social menace in society.
On the other hand, the press has a right to criticize the conduct of anybody, whose
conduct is against the accepted social norms. They have a right to decide upon religious,
social or cultural background of a given society. We do not hesitate to state that
lesbianism is illegal in our law. We cannot find any reason to hold that the said
publication is improper.
Any complainant, who seeks legal remedies from any court or. quasi-judicial body, must
come before it in clean hands. Just because the complaint encourage and promotes abnormal
or immoral acts in society, he cannot argue that the media has no right to criticize such
activities.
The complainant in any event, is not a female, who can participate,’ in lesbian
activities. He cannot be subject to any such rape as referred to in the article and
therefore, he cannot be a victim of such violence. He has not sought any relief on the
basis of public interest. He merely states that he complains as a supporter of gay and
lesbian people and specially to protect their human rights and dignity. Hence he has no
legal status (Locus Standi) to make or maintain this application.
The counsel for the complainant pointed out Rule No. 8 of the Code of Ethics for
journalists in which it reads to say that the journalists shall not publish any matter
designed to promote sadism, violence and salacity. Lesbianism itself is an act of sadism
and salacious. Publication of any opinion against such activities is not amount to a
promotion of sadism or salacity, but any publication, which supports such conduct is an
obvious promotion of all such violence, sadism and salacity. Therefore, the complainant is
the one who is eager to promote sadism and salacity, not the respondents.’
On the other hand, if the complainant argues that he has a right to support people who
are involved in such abnormal and immoral activities, we have to concede that the people,
who respect their humanity, culture and other respected norms in human society also have a
right to support the people who live in the society in a cultured and dignified manner
with their accepted social norms; They have a right to publish their criticism over
abnormal, unnatural and inhumane conduct of the people through the press.
We are of the view that the respondents have discharged their duties as journalists by
publishing the opinion of general public to educate their readers on such a controversial
issue.
In the above circumstances, we dismiss this complaint with costs fixed at Rs. 2,100 to
be payable to the respondents by the complainant.
‘Army
considers adherence to Law of War of utmost importance’
As a professional army, the SLA (Sri Lanka Army) considers the adherence to the Law of
Armed Conflict or Law of War to be of utmost importance and thus places significant
emphasis in order to ensure that the Rules for Behaviour in Combat are permeated to all
its officers and soldiers. The production of booklets and posters, incorporating this
theme marks a major step in this direction, said Major General Balagalle, Chief of Staff,
SLA, at a ceremony held yesterday morning at Army Headquarters in Colombo, when Ms.
Isabelle Barras, Head of Delegation, ICRC Colombo, handed over to the SLA 20,000 booklets
and 6,000 posters, depicting Basic Rules for Behaviour in Combat.
The illustrated booklet comprises, inter alia, internationally recognised rules for
behaviour in combat such as, Be a Disciplined Soldier, Collect and Care for the Wounded,
Treat Captured Combatants Humanely, Respect the Civilian Population, Respect Protected
Signs, Avoid Unnecessary Suffering and Destruction, and First Aid Tips.
Ms. Barras stressed that such publications, produced with the assistance of the ICRC,
are principally designed as support material for instruction of the Law of Armed Conflict
within the Sri Lankan Army. "It is a reflection of the growing importance placed by
the SLA for the inclusion of the Law of Armed Conflict as an integral part of its training
process", she pointed out. While reaffirming ICRC’s commitment to support such a
project through advise, training and provision of expertise, she emphasized that the
production of these booklets and posters by the SLA, also reflected the excellent
co-operation between the Sri Lankan Army and ICRC in the implementation of international
humanitarian law.
In 1999, the ICRC dissemination programme on the Law of Armed Conflict to the SLA
reached 1,124 officers and 2,523 soldiers while this year (from Jan-May) ICRC disseminated
to 1,500 officers and 1,385 soldiers.
Since 1989, on invitation by the Government, the ICRC has been active in Sri Lanka in
conflict areas, carrying out its traditional humanitarian activities such as protection of
detainees, re-establishing of family ties, providing assistance to the civilian
population, dissemination of rules of behaviour in combat and by acting as a neutral
intermediary, whenever required.
ICRC in Sri Lanka has 48 expatriates, 300 Sri Lankan staff working from its offices in
Colombo, Batticaloa, Trincomalee, Polonnaruwa, Vavuniya, Mannar, Mallawi, Puthukudiyiruppu
and Jaffna. |
