Freedom of the Wild Ass

pic“Law is an ass” says Charles Dickens. This certainly seems to hold true in the light of the freedom that is enjoyed by media through the protections granted by both domestic legal systems and international law. While I am reaping the benefits of freedom of expression in making these claims, it needs to be highlighted that certain freedoms require to be curtailed and/or reviewed in order for the other rights to exist. At present, it is possible to note that some journalists exercise their freedom of expression in a manner harmful to the society. It is questionable whether such practices should be upheld in light of several recent circumstances. While freedom of expression is, without a doubt, one of the most important rights that perhaps functions as a premise for other rights, it is important to establish the framework within which one may swing one’s fist without striking another’s nose.

Two incidents come to my mind when I speak of the wild ass freedom enjoyed by various media. Firstly, there is Charlie Hebdo of France. Secondly there is Seya Sadewmi of Sri Lanka. These two incidents highlight instances where freedom of expression has come into conflict with the other rights that are mentioned in both domestic Bills of Rights and International Conventions on Human Rights. Therefore, it is essential that these incidents and their respective consequences are analysed separately to do them justice.

The first incident calls for an analysis of freedom of speech, religion and world’s differential treatment towards different groups of people. A ground reality that one must address in respect of hate speech is that some groups of the society are better protected from so-called free speech which cross one too many lines than some others. For instance anti-Semitism is condemned while Islamophobic statements or anti-Islam statements tend to be swept under the rug.

When attempting to strike a balance between freedom of expression and prohibition of hate speech, the courts are invariably given the heavy task of soothing the seeming situation of the tug of war between free expression and human dignity and sensitivities that could be affected by such free expressions. In paragraph 31 of Jerslid v Denmark, the court while reaffirming the duties and responsibilities of a journalist also states that press should have the freedom to play its vital role of ‘public watchdog’. While principles of journalism and the service they provide to the world should be regarded highly, it ought to be noted here that the court has to identify the thin line between being a public watchdog which provides services and deteriorating to animalistic instincts of superiority and hatred through a façade of freedom of expression.

Paragraph 6, of General Comment No 35 of the Committee on the Elimination of Racial Discrimination, states that ‘criticism of religious leaders or commentary on religious doctrine or tenets of faith should not be prohibited or punished’. It needs no mentioning that the ‘criticism’ mentioned herein is not to be misconstrued as a right of lampooning the religious faith of another. While I in no way endorse the terrorist attack on Charlie Hebdo personnel, I cannot help but think that it could have very well been avoided had they exercised an iota of self-discipline in their cartoon portrayals of religious figures. Although Charlie Hebdo’s freedom of expression has widely been supported as is evident from the ‘Je suis Charlie’ movement, it is questionable whether such supporters would adopt similar views had the magazine portrayed their loved ones, for instance a parent, in a sexually explicit position as was the case with regard to the religious leaders. One may attempt to counter the above argument by stating that a parent or a relative is in a different status than a religious figure. Nonetheless, there does not seem to be any difference between those two incidents as the magazine would have insultingly portrayed a figure that is loved by a person or a group of persons. The laws regarding defamation are in existence in order to protect one’s right not to be insulted without cause from another person’s freedom of expression. In that light, it is surprising that the world seems to be of the belief that one’s freedom of expression is somehow ranked high in the hierarchy of rights. In certain circumstances, it seems to be ranked so high even above the freedom of thought and conscience.

The Human Rights Committee (HRC) has adopted the view that ‘displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant’ except for the grounds mentioned in Art. 20 (2) of ICCPR. I am of the personal opinion that this stance is rather overarching and ought not to have been adopted by the HRC. While a mere display of lack of respect of religion ought not to be considered as an offense under law, blasphemy ought to be differently treated. Black’s Law Dictionary defines blasphemy as the offense of speaking in a manner ‘intending to wound the feelings of mankind or to excite contempt and hatred’. This interpretation seems to come within the prohibited actions stipulated in Art 20 (2) of ICCPR.

In the matter of Wingrove v UK the ECHR decided that a complete ban of the airing of a music video displaying St.Teressa of Avila in a sexualized form was considered necessary and reasonable in the circumstances. This calls into question what the ‘test of necessity’ ought to be. Furthermore, in paragraph 60 of the judgment, the court stated that ‘it is the manner in which views are advocated rather than the views themselves which the law seeks to control’. Judging by this approach, if portrayals of Prophet Muhammed in Charlie Hebdo are questioned in ECHR, they ought to adopt the same view although to expect it to be so in light of the ‘Je suis Charlie’ movement seems like a distant dream. The dissenting opinion of the judgment which states in paragraph 4 that ‘the aim of the interference was to protect Christian faith alone and not other beliefs’ rings true when the European approach to freedom of expression and religion is put in context.

In the Seya Sadewmi incident of Sri Lanka, the media rushed to scene of the crime, perhaps also destroying valuable pieces of evidences that could have been gained from the crime scene as mentioned in my previous piece on the incident. In addition, the media was quick to cast suspicion on the murdered girl’s family members thus resulting in the prevention of their participation at her funeral. The media was also quick to spread stories regarding the 17 year old individual arrested on suspicion in connection with the said murder. In this situation, the media has engaged in a virtual rape of the murdered girl while also violating the presumption of innocence of those arrested. Moreover, the public outcry regarding the matter was encouraged and fuelled by the media which has now raised the question of the possibility of enforcing the death penalty.

Article 13 (5) of the Sri Lankan Constitution guarantees the presumption of innocence to those suspected of committing crimes. Nonetheless, a larger portion of Sri Lankan media behaved in a manner unbecoming of ethics of journalism. Publication of the murdered girls images that are detrimental to the respect that ought to be paid to a dead person were circulating on the internet. Some of these websites stooped so low as to title their pages as ‘Hot Pics of Seya Sadewmi’. It is understandable that these lead to further crimes or encouragement thereof. It is also evident from a fact that I noticed when I checked analytics of my previous piece published on WordPress. It indicated that an individual has used the search term ‘Seya Sadewmi Sex Pics’! (See the screen shot pertaining to the said search terms). Is this not an indication of the existence of more and more pedophiles?  picI am at a loss for words regarding this and I fully blame the media for their uncouthness in attempting to gain more views by using the images of the dead girl. It almost appears as the girl has been gang raped by undisciplined media units of Sri Lanka which do not seem to comprehend the necessity of self-imposed restrictions when reporting matters of this nature. Moreover, this proves the fact that media has been helping the sick pedophiles to gain satisfaction by viewing the images of the child that are freely available on the internet.

When the much talked of gang rape against a medical student took place in India, the Indian media only referred to her as Nirbhaya. The media abstained from posting her pictures except an image of her in a saree and one image of receiving treatment at the hospital. Her name ‘Jyoti Singh’ was only revealed when her father decided to state it to the media for purposes of giving strength to other victims who have suffered at the hands of rapists. Nonetheless, it is important to remember that with regard to this incident, the Indian media behaved in a respectable manner.

It is my humble opinion that freedom of expression ought not to be considered as an absolute right that is not subject to any limitations. There are certain Codes of Ethics that journalists ought to follow when making their journalistic contributions to the world. While I do not propose that domestic systems should introduce censorship rules, it is suggested that journalists exercise some restraint especially when reporting matters that can have an impact on other people’s rights and a possible court case. For instance, if a jury is to be called in Sri Lanka regarding the child’s rape incident, it is impossible to believe that it would be possible to find a juror who has not been exposed to all discriminatory remarks made by the media regarding the suspects in temporary confinement.

Without self-restraint and journalistic ethics, freedom of expression becomes the freedom of the wild ass.

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Seya Sadewmi’s Death and What it Teaches Us

With the dead body of five year old Seya Sadewmi being discovered in a patch of bushes near a small stream in Kotadeniyawa, several social discourses have come to limelight. Primarily, there seems to be a push from the society for the reimplementation of the death penalty. Secondarily, there is the issue of the media, pardon the expression, overstepping the boundaries of their freedom of expression. Thirdly, there is the usual scenario of those attempting to fish in troubled waters. In addition to these three issues, I have also observed in numerous videos, how the crime scene is being contaminated by those who rush in without any care in the world as to whether they will be destroying valuable evidence pertaining to the crime. These issues demand analysis and in the following passages, I express my opinions of the same. This piece is not about the innocent dead child, but about the problems arising from the social discourse pertaining to her death.

Judging by the fact that a lot of controversy has arisen on and around Article 9 of the Sri Lankan constitution, which gives ‘foremost place’ to ‘protect’ and ‘foster’ Buddha Sasana, it is surprising to see how many are willing to easily depart from the first precept of the five precepts by advocating the reimplementation of the death penalty. As was aptly and sarcastically stated by Mr. Thishya Weragoda (young, dynamic Attorney – at – Law) for the protection of the ‘dharmadweepaya‘ we seem to be in need of a hangman and a noose. According to what little I know of Buddhism, one needs to inculcate in oneself ‘sīla’ as a foundation to follow dhamma. The moment that one strays beyond the five basic precepts, it is Buddhaquestionable whether their so-called devotion to Buddhism is one of ‘shraddā’ or of ‘amulikā shraddā’. Moreover, it is necessary to ascertain whether the taking of a life, which is to do with the ‘an eye for an eye’ approach, or what we call lex talionis in Roman law, can really help to deter, rehabilitate the society and is of any utilitarian value. I am of the view that it only amounts to revenge. If it is of utilitarian value as one can gain a pleasure out of the revengeful happiness that one gains from the murderer being put to death, then we have to reassess where we stand as ‘decent’ human beings.

NooseAs there is a social dialogue in relation to the reimplementation of the death penalty, it is important that one refers to countries with such laws to ascertain whether their crime rates are lower. Some expressing views on social media argued that crime rates can be reduced by the introduction of stricter penalties as in Saudi Arabia. While it is true that certain countries such as Saudi Arabia, Afghanistan, Iran and China have strict penalties against rapists, these countries seem to be avoiding the maintenance of an official database containing statistics of such crimes. However, other sources indicate that rapes go unreported in these countries due to various reasons such as honour killings, victim shaming and strict requirements of burden of proof (see thisthis, and this). This poses the question whether stricter laws necessarily reduce crime rates.

According to Article 1 of Law of Criminal Procedure in Saudi Arabia, ‘court shall apply Shari’ah principles, as derived from the Qur’an and Sunnah’. The interpretation of Shari’ah principles pertaining to rape in Saudi Arabia is that the perpetrator be executed through the act of throwing stones at him (See Elizabeth Peiffer, ‘The Death Penalty in Traditional Islamic Law as Interpreted in Saudi Arabia and Nigeria’ [2005] William and Mary Journal of Women and the Law 507). However, it is questionable whether women and children are protected from this punishment as traditionally perpetrator’s evidence is used to ascertain his guilt and the rape victim is expected to bring in testimonies of four witnesses in order to fulfil the requirements of her burden of proof. It is amusing to think that a perpetrator would first invite four witnesses to observe his crime so that it later becomes easier for the victim to satisfy requirements of burden of proof. However, some argue that this is a common misconception pertaining to An-Nur 24:5 of the Qur’an which states that those who accuse chaste women of unfaithfulness are required to bring four witnesses to prove their claim or else suffer eighty lashes for the immorality that they have performed. The argument is that this requirement has no connection whatsoever to do with rape.

Irrespective of the legal situation in Saudi Arabia, attention needs to be paid to the practical implementation of their laws as well. There was an equally powerful social discourse regarding the Saudi Arabian court which sentenced the 19 year old gang rape victim to receive 200 lashes for violating the norm of being accompanied by a male at all times in public. It is hence possible to state that the mere existence of stricter laws would not bring about justice.

According to Section 427 (2) of the Afghan Penal Code, in cases of aggravated forms of sexual violence, the perpetrator may be sentenced to death or long imprisonments. Amnesty International records that 240 cases of honour killings have been reported in Afghanistan despite the existence of strict laws. Moreover, the number of rapes reported is considered to be much lower than the actual incidents just as in Saudi Arabia due to the honour killings to which victims are subjected.

Iran and China are also nations where the death penalty is imposed on those convicted of rape. China, as per Article 139 of its Criminal Law, contains punishments varying from an imprisonment of three years to death penalty depending on the gravity of the crime that has been committed on the victim. Iran shares certain similarities with the facts that have already been recorded in this piece in relation to Saudi Arabia and Afghanistan.

It is not surprising to note that sites comparing rape statistics of the world do not often contain statistics of countries in question due to the sole reason of such statistics being officially unavailable. In that light, there is no wonder that these countries with higher penalties and higher non-reporting rates of rapes do not make the list of nations with the highest rapes of the world. It is hence clear that a mere reimplementation of the death penalty will have no bearing on the reduction of rapes in Sri Lanka. If crime and deterrence went hand in hand, there should be no crimes at all in Saudi Arabia where there are brutal, inhumane punishments against offenders.

Even if one does support the death penalty in relation to serious crimes, it is also necessary to think of instances of injustices that can be so brought about. It was reported in December 2014 in Mail Online that a Chinese man who was executed on a conviction of rape and murder nearly two decades ago has later been declared innocent. The irreversibility of death penalty poses this problem especially because justice does not always take place merely due to the existence of law. I beg to ask those who propose the death penalty whether they are willing to take on the responsibility of the death of an innocent individual in case an executed prisoner is later found to be innocent. All I know is that I do not want blood on my hands and therefore that I abstain from proposing that the death penalty being reinforced.

The second issue pertaining to the 5 year old girl’s death is the proliferation of sitesMedia Freedom and media outlets posting pictures and videos of her dead body. It is also ironical that the National Child Protection Authority of Sri Lanka which has been incapable of preventing crimes against children, cautioned the public against posting such videos and pictures. According to currently available data, in 2011, a total of 1463 rapes committed against children have been reported in Sri Lanka. In that light, I am not exactly certain as to how prevention of publication of crime victims’ photos and videos alone is expected to do justice to Seya and other victims although I agree that the media has overstepped its boundaries in using her pictures, perhaps to gain more views. This calls in to question the extent of media freedom that should exist in a country. While the media should publish news of crimes with the expectation of having an impact on the society whereby people are made aware of both how to abstain from committing crimes and also to educate them of how to be safe from crimes, it is questionable whether it is necessary to publish pictures of a sexually abused infant in order to do that. This is one aspect of fishing in troubled waters.

Secondly, a dialogue that I observed on social media also indicated that bringing of Shari’ah legal penalties for those who commit such barbaric crimes would deter perpetrators and put an end to crimes against women and children. I personally observed this soon escalating to a dialogue on whether Islamic law is superior or the penalties that existed during the ‘ time of the Sinhalese Kings’ are superior. This is the second aspect of seeing opportunity in calamity. According to the facts that I have portraPunishmentsyed above regarding nations with severe penalties for crimes, there does not appear to be a correlation between the increase of penalty and the decrease of crimes. In fact, there is no official data even suggesting that crimes are lower in nations with higher penalties or the death penalty. Accordingly, I am only left with a feeling of bitterness in my head against those who want to exploit this tragic incident to bring to the core a conversation as regards which extremist interpretation of law is superior.

The other issue of importance with regard to all crimes, that do not however seem to initiate sufficient dialogue in social media, is the importance of preventing crime scene Crime Scenecontamination. It needs no mentioning that evidence is of great importance in a criminal matter and every piece of evidence that can be gained from the body of the victim, the crime scene and the surrounding areas of the crime scene are of utmost importance. Section 114 of the Code of Criminal Procedure of Sri Lanka states that the accused should be released if there is an insufficiency of evidence, and the relevant authority fails to justify the accused being produced in a court of law. Moreover, Section 370 requires an inquirer to proceed to the place of crime when the person has died of unknown causes. This requirement is in place to allow finding of more pieces of evidence from the crime scene. If not for this law, it would be convenient to demand that the dead body be brought to the inquirer in order to carry out the investigation. This highlights the importance of not contaminating the crime scene and keeping it as untouched as possible until it is subject to the inquirer’s investigation. It is important to not move or change the position of the dead body as the posture may also contain evidences as regards the cause of death. For instance, in most cases of asphyxia the cause of death is easily ascertainable if the posture of the corpse is not subsequently changed by someone who comes to the crime scene. Cordoning off of the crime scene is extremely important. However, in Seya Sadewmini’s incident, anyone who watched news videos could have observed how crowds of people came to the crime scene, thus, perhaps destroying a multitude of valuable evidence that could have been gained from the scene of the crime. Such contamination could erase traces of foot prints etc belonging to the perpetrator which could be of extreme importance in identifying the culprit.

While the impact of social media on law, governance, justice and freedom is commendable, incidents of this nature may also indicate a negative aspect. Overpublicizing certain news elements merely for personal gains, prove to be extremely harmful to the cause at hand and may also cause unspeakable misery to those connected with the incident. It is time to rethink whether the introduction of harsher laws in the absence of mechanisms to raise awareness in the society is useful and effective as a tool of crime prevention. It is also time for people to learn to abstain from crime scene contamination. Moreover, those who are good at promoting self-serving agendas using any and every platform better rethink and reformulate their notion of decency.