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New York Senate race: Battlelines drawn

by Dr. Stanley Kalpage
Three prominent persons have captured the headlines in the keenly contested Senate seat for New York State: Rudolph Guiliani, who has quit the race, Hillary Rodham Clinton and Rick A. Lazio, who are fighting a keen battle.

Quite suddenly a number of adverse events hit Mayor Guiliani, the tough talking Mayor of New York City who had carried out a no-holds-barred tough campaign for more than one year. He had been the Republican opponent of First Lady Hillary Rodham Clinton who is seeking the Senate seat to be vacated by Democratic veteran, the senior senator from New York, Senator Daniel Patrick Moynihan.

Guiliani announced that he had been diagnosed with prostate cancer but hesitated to announce that he would be quitting. Other misfortunes hit him. He said that he was seeking a separation from his wife of 16 years and that he was seeing an upstate woman. His wife further alleged that he had had a personal relationship with a staff member. Even though Guiliani may be gone Clinton still has quite a race on her hands.

The year 2000 began with Rudolph W. Guiliani on top and in charge. There he was, powerful mayor of New York City, confident Republican in the ascendant, ringing in 2000 for the glittering Times Square throng below and for millions watching across the world. The moment was truly his, just as the year ahead promised to be.

Now, less than five months later, the promises of the New Year have been broken. And a very different Rudolph Guiliani has virtually gone into complete retirement.

Hillary Rodham Clinton

Hillary Clinton has already made a name for herself. Commentators are looking at the similarities and differences in the approaches of two of the most compelling first ladies of the White House with regard to contesting the New York Senate seat. Way back in 1945, Eleanor Roosevelt had been mulling over running for a Senate seat on the persuasion of Harold Ickes, a former adviser to her husband, president Franklin Delano Roosevelt.

In February 1999, while she was going through the harrowing experience of the revelations of her husband’s affair with Monica Lewinsky, Hillary Clinton had summoned a close friend, Harold Ickes to the White House to discuss the possibility of her seeking to enter the Senate through New York. The Clinton’s friend, the contemporary Harold Ickes was incidentally the son of the Harold Ickes of half a century ago.

Eleanor Roosevelt turned down the pleadings of her Harold. As she wrote on May 26 1945, "I feel very strongly that running for office is not the way in which I can be most useful." She did not want to burden her children with another office-holding parent. She also did not want to burden herself with having to follow what she called "the party line."

Hillary Clinton has decided differently. She sees an opportunity to participate in politics fully and to remain in the spotlight. She had remained steadfast and loyal to her husband’s political aspirations and career. Now she wants to have her own constituents and platform.

Acceptance speech

In her acceptance speech Hillary Clinton was at her eloquent best. She paid a handsome tribute to her predecessor Patrick Moynihan whom she described as "one of the wisest, most knowledgeable and most experienced public servants in American history". He had what the Irish call the gift of being able to see around the corners of the future. He had predicted the collapse of the Soviet Union long before the Berlin Wall had crumbled and urged people to be prepared for the post cold war era.

Hillary spelt out the vision for the Democratic Party in New York. She defined the missions as "to strengthen our families, to protect our children, to improve our schools, and to extend health care to every New Yorker, to free our families and communities from the terror of gun violence, to strengthen Social Security and modernize Medicare, to ensure America’s continued leadership in the world".

Rick A. Lazio

Until he entered the race, Rick Lazio has been relatively unknown, though he was gifted with pleasing first impressions. Unlike Guiliani, he has a hunger for the job and is considered to be a more traditional Republican.

Rick Lazio had wanted to run for the seat being vacated by Daniel Patrick Moyanihan, but was dissuaded by state Republican leaders last August in favour of the better-known New York City Mayor. But when Guiliani withdrew his name from consideration on May 19, the way was clear for the 42-year-old congressman from Long Island.

When he was unanimously selected by the Republican Party to be its candidate for the United States Senate, Lazio seized the platform and promised a hard-hitting campaign, borrowing heavily on Democratic themes and speech lines as he accused Hillary Clinton of engaging what he described as the "politics of division" Lazio had been particularly peeved with Clinton for seeking to identify him with Newt Gingrich the former House Speaker.

Lazio’s acceptance speech

"When it comes to representing the needs, concerns and values of the people of New York, I have one advantage that she will never have: I can be myself; I am a New Yorker," Lazio said in his 27-minute acceptance speech, summing up what was one of the dominant strains of attack by Republican office holders and party leaders on the first lady.

At the Republican Convention, Lazio was distracted by two events beyond his control. One was the absence of Guiliani who withdrew from the race and the other a swollen, stitched lip that he had sustained after stumbling onto his face while marching in a Memorial Day parade in Long Island.

Some Republicans, however, worried privately that the mishap reflected a boyish, overeager 42-year-old campaigner, a marked contrast to the problem many bemoaned months ago, that the then presumptive nominee, Mayor Rudolph W. Guiliani, did not have his heart in the race.

A bruising contest

The candidates to win votes will use all the gimmicks of modern technology. Each has a web site on the Internet. The contest is between a little known four-term member of Congress and a first lady with a mind and a personality of her own, widely known not only in the United States but throughout the world. They have competing ideologies and divergent biographical backgrounds.

In fact, Clinton sees this as a contest of different ideologies. "If Congressman Lazio is the Republican nominee, this will be a race of clear contrasts because we’ve taken very different stands on education, health care, the future of the economy, and on issues concerning children and the elderly," she said.

The Clinton campaign will try to portray Lazio as "a foot soldier of Newt Gingrich" The Republicans will brand Clinton as an outsider who did not live in New York before this year. Said Lazio "I’m the real thing. I don’t have to try to be someone else. I was born here. I went to school here. I fished in these waters. I clammed in its bays. I graduated from our schools. My children were born in New York State. I’ve lived here my whole life. There will be no question of my commitment to this state".

The tenor of Lazio’s comments so far suggest that the campaign, with the change in candidate, was going to be harsh and fast-paced, with a particular emphasis on Hillary Clinton’s attempt to run for office in a state where she just moved five months ago, and on what Lazio described as her liberal ideology.

Clinton’s advisers have moved to portray Mr. Lazio as extreme and conservative, noting that he had supported many of the initiatives of the former House Speaker Newt Gingrich, as they tried to discredit his candidacy before he had a chance to find his groundings. Lazio said he considered himself "a centrist a mainstream Republican."

"We’re conservative, right-of-centre on budget and tax issues, national security issues," he said. "And I think we’re realistic on social issues." He described his Democratic opponent as "far left," adding: "She’s part of the discredited philosophy that helped lead New York to ruin during the Cuomo years. I think we’ve turned the corner, and we don’t want to go back to those failed days."

The state of the race

Towards the end of May Rick Lazio and Hillary Clinton were almost in a dead heat in their Senate contest. It had taken Lazio less than a week to catch up. Clinton was favoured by 46 percent and Lazio got 44 percent in a poll with a 4 percent margin of error conducted by Zogby International.

Still Rick Lazio remains the underdog and will have a long uphill fight against Hillary Clinton. The long summer campaign will be harsh and strenuous before the voters decide on November 7.

LEGAL WATCH
Supreme Court reviews free speech and censorship

By Nayana
The importance of freedom of speech and the extent of permitted restrictions on that freedom received comprehensive discussion in the 50 page judgment of the Supreme Court on the fundamental rights petition filed by Sunila Abeysekera challenging the censorship of military news imposed by Emergency Regulation.

This case did not deal with the most recent and wide-ranging Emergency (Miscellaneous Powers and Provisions) Regulation No. 1 of 2000 gazetted on May 3, which covers not only censorship of news but also such matters as the power to ban public meetings and requisition private property.

Abeysekera’s petition had been filed last year and its subject matter was the Emergency (Prohibition on Publication and Transmission of Sensitive Military Information) Regulation gazetted on November 6, 1999. This Regulation, which had replaced a somewhat clumsily worded and virtually unworkable provision published in June of that year, read as follows:

"No editor or publisher of a newspaper or any person authorized by or under law to establish and operate a broadcasting station or a television station shall, except with the permission of the Competent Authority, print, publish, distribute or transmit, whether by means of electronic devices or otherwise, or cause to be printed, published, distributed or transmitted, any material (inclusive of documents, pictorial representations, photographs or cinematograph films) containing any matter pertaining to military operations in the Northern and Eastern Province including any operation carried out or being carried out or proposed to be carried out by the Armed Forces or by the Police Force (including the Special Task Force), the deployment of troops or personnel, or the deployment or use of equipment including aircraft or naval vessels by any such forces, or any statement pertaining to the official conduct, moral [sic] or the performance of the Head or of any member of the Armed Forces or the Police Force or of any person authorized by the Commander-in Chief for the purpose of rendering assistance in the preservation of national security."

Uncensored comments

It will be seen that this Regulation applied only to military operations in the North and East and did not seek to bind foreign correspondents with regard to material sent overseas. On the other hand, its ambit covered statements not only about the conduct and performance, but also the "moral" (morale?) of service personnel. It also protected a new category of persons, namely persons outside the regular Police and Armed Forces who may be "authorized by the Commander-in-Chief for the purpose of rendering assistance in the preservation of national security".

However, this Regulation did not prevent uncensored comments on the President, (either as President or as Commander-in-Chief and Defence Minister) or the Deputy Defence Minister or any other political figure.

Nevertheless, coming in the wake of a major military reversal in the Wanni, the Regulation of November 6, and the Government rhetoric that accompanied its imposition, was seen by some as an attempt to blame the private news media for the setbacks suffered by the forces. There were suggestions at the time that some sections of the media would challenge the Regulation in court but it was eventually left to NGO activist Sunila Abeysekera, to file a fundamental rights petition.

The petitioner claimed that as a registered voter and a "social/human rights activist concerned about the ethnic conflict and the war in the North and East" she had "actively taken part in debate to resolve the said conflict and hence [was] required to know the correct position with regard to the long drawn-out war between the Armed Forces and the LTTE".

On the basis that her opinions were necessarily based on information received by her about the ongoing conflict, she claimed that any prior restraint on such information was an infringement of her right to freedom of thought under Article 10 of the Constitution.

She also claimed that the Regulation had been imposed in a manner that was "unwarranted, discriminatory and arbitrary" and therefore infringed her right to equality under Article 12.

Lastly, she claimed a violation of her right to freedom of speech and expression under Article 14(1)(a), on the grounds that, as the Executive Director of the news monitoring organization "INFORM" her right to communicate information of public concern had been infringed.

Discriminatory manner

Although leave to proceed was granted on all three counts, counsel for the petitioner apparently did not press the case under Article 10 at the hearing. The Court dismissed the case under Article 12(1) in a few words, firstly because there was no evidence before it to show that the regulation had been applied in a discriminatory manner, and secondly because, in its view, the regulation was framed in reasonably precise terms relating to national security so as not to leave room for arbitrariness in its application.

The Court contrasted this regulation with an earlier regulation prohibiting any person from affixing or distributing "any posters, handbills or leaflets" without Police permission, that was struck down in the 1992 case of Perera v. Attorney-General as not being referable to any of the permitted grounds of restriction on fundamental rights set out in Article 15 of the Constitution.

The greater part of the judgement by Justice Amerasinghe (with Justices Wadugodapitiya and Weerasekera in agreement) was therefore concerned with the question of whether the petitioner’s right to freedom of speech and expression under Article 14(1)(a) had been infringed. There too they eventually held against the petitioner, but not without stressing the very limited circumstances in which such freedom could be restricted.

In the Court’s view, the preamble and opening Articles of the Constitution make it quite clear that Sri Lanka is intended to be a representative democracy and the degree to which restrictions on democratic freedom can be restricted must be measured against this background. Case law from other representative democracies such as India and the USA were therefore relevant, although any differences between their respective constitutions and ours must also be kept in mind.

The judgment of Justice Brandeis in the American case of Whitney v. California is often said to be the classic justification for freedom of speech. Declaring that "the greatest menace to freedom is an inert people" and that "public discussion is a political duty", Justice Brandeis went on to say:

Collective right

"They the framers of the American Constitution] knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression, that repression breeds hate; that hate menaces stable government, that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones."

The collective right to receive information and have access to the thoughts expressed by others was classed by the Court as an aspect of the right to freedom of expression. Sunila Abeysekera had set her petition in the context of what was then an impending Presidential election, and the Court laid special emphasis on the importance of free speech in this connection:

"Speech concerning public affairs is more than self-expression; it is the essence of self-government. To make an informed and educated decision in choosing his or her elected representative, in deciding to vote for one group of persons rather than another, a voter must necessarily have the opportunity of being informed with regard to proposed policies.... In the formation of opinions and the mobilization of such ideas offered for acceptance in the competition for the right to represent the people, there can be no appeal to reason without the freedom to express and propagate and discuss ideas based on adequate and reliable information."

The Court recognized the importance of free speech as an instrument for the expression of public opinion: "It is only by informed discussion that proposals adduced can be modified so that political, social and economic measures desired by voters can be brought about. And in between elections it is only through free and informed debate and exchange of ideas that the elected majority can be made to remain responsive to, and reflect the will of, the people."

The judgement also recognized the special role of the press: "With regard to the press, it has been stated that it has a pre-eminent role in a state governed by the rule of law and, while it must not overstep the bounds set, it is nevertheless incumbent on the press, in a way consistent with its duties and responsibilities, to disseminate information and ideas and stimulate debate on political issues and other matters of public interest. Not only does the press have the task of imparting such information and ideas, the public also have a right to receive them."

Freedom speech

"Political debate", the judgment went on, "is at the very core of the concept of a democratic society." The Court stressed that freedom of speech protects not only ideas that are favourably received or regarded as inoffensive, but also those that "offend, shock or disturb the State or any sector of the population."

However, the Court was equally clear that freedom of speech was not absolute and that restrictions which fall within the ambit of Article 15 will be upheld. The grounds of permitted restriction include national security, public order, the protection of public health and morality, and the need for securing due recognition and respect for the rights and freedom of others and "of meeting the just requirements of the general welfare of a democratic society".

The Constitution also recognizes restrictions imposed in the interests of racial and religious harmony, parliamentary privilege, and the laws against contempt of court, incitement to commit a crime and defamation.

The relevant issue in this case was national security and the type of restriction involved was prior restraint on publication. Whether achieved by means of court injunction or censorship, the Court noted that such prior restraint is not unconstitutional.

In this context our constitutional provisions are closer to those of the Indian Constitution that the American, and the Court held that the applicable test for this country was "reasonable restriction" test as expressly enshrined in the former, and not the "clear and present danger" test applied by judges under the latter.

Due consideration

The Court affirmed that the reasonableness of the restriction was ultimately a matter for the Court to decide, although it would give due consideration to the views of the Executive.

In this instance, the Court found that the impugned regulation imposed restrictions on the publication and transmission of "certain specified sensitive information relating to what the petitioner described as ‘the ethnic conflict and the war in the North and East’." Such regulations had to be framed "without excessive rigidity, to take account of changing circumstances".

The Court considered that: "The impugned regulation succeeded in striking a fair balance between the free flow of information and the legitimate aim of protecting national security, and that the restrictions were proportionate and tailored with sufficient closeness to the accomplishment of the governmental aim necessitating them."

The judgment indicated that the door remained open to seek judicial review in respect of the implementation of the regulation, i.e. the individual actions of the Competent Authority in the exercise of the powers conferred on him. However, it also acknowledged that such a right was of limited value to a journalist due to the short-lived value of news.

Shortly after this judgment was delivered on May 15, the Editors’ Guild and certain other persons let it be known that they intended to challenge the new, all embracing Emergency Regulation gazetted recently. Clause 14 titled "control of publications" is considerably wider in its scope than the earlier provision.

According to some editors, it is being used to stifle political criticism as well as military matters. Viewers of the electronic media will know that there is a blanket censorship being applied even to official media releases touching Sri Lanka which are carried on foreign news broadcasts. It will be interesting to see how this new censorship measures up in the light of the judgment in Abeysekera v. Rubesinghe discussed above.

Point of View
The deafening silence

by a Voter
Ms Tisaranee Gunesekere’s article in last Sunday’s Island was not merely a Masque of Irrationality but a Masque of Sinister Contradictions.

She is obviously attempting one of two things: to recruit members for a recently formed party in search of supporters or to scare away opposition members and strengthen the government, sorely in need of support.

Today when the situation in the country has dramatically changed, she produces her own five-month old election results to deter UNP candidates from contesting and paints lurid pictures of communal riots to deter members of the Sinhala parties. But unfortunately for Ms Gunasekera, the public today are acutely conscious of what is happening in this country despite the censorship.

The reports of the Independent Tolls monitors are also available for those who wish to study the presidential elections. In today’s context, balancing between two parties is a risky business. One step forward, two steps backward give party leaders and the public a good opportunity to judge the reliability of party members.

For many months Ms Gunesekera and Mr. Sirisena Cooray have been following Mangala Samaraweera’s crude propaganda line accusing Ranil Wickremesinghe of being a LTTE collaborator because he proposed that the LTTE should be represented in an All Party Interim Council for the north for a period of two years. But these two persons, in the shadow of the Premadasa Centre, have been curiously silent when the government attacks Premadasa accusing him of supplying arms and cement to the LTTE. No attempt has been made to inform the public of the events that led Premadasa to take this action. While they rush to call Ranil Wickremesinghe a collaborator for making a peace proposal, they hesitate to defend Premadasa, their patron, from the government’s vicious attacks. Why? Has the Premadasa Centre got new invisible patrons today? Does it wear a mask or play at a masque?

According to the government’s allegations against Premadasa, Mr. Sirisena Cooray’s comments on Ranil Wickremesinghe, quoted by Ms Gunesekera, must be construed as an implied attack on Premadasa rather than an indictment of Wickremesinghe. They must apply the same standards to Premadasa that they apply to Wickremesinghe since they have no defence.

Ranil has merely made a proposal that would have saved thousands of lives, billions of dollars and enabled us six months ago to have found peace with honour. Today international opinion supports him.

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