Freedom of Expression under the Sri Lankan Constitution | Daily News

Freedom of Expression under the Sri Lankan Constitution

Picture by Chinthaka Kumarasinghe
Picture by Chinthaka Kumarasinghe

Freedom of expression is one of the essential foundations of a civilized and truly democratic society. It is also one of the conditions essential for the development of the human personality. The freedom of expression serves four broad social purposes: (a). it helps an individual to attain self – fulfillment; (b) it assists in the discovery of truth; (c) its strengthen the capacity of an individual in participating in decision making and (d) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. Ideas and experiences may be communicated in many forms. These include dialogue, publication and distribution of written materials such as newspapers, leaflets, books, pictures and cartoons, instantaneous diffusion of the spoken word and visual image by the electronic media and also of art forms such as paintings, music, sculpture and the cinema.

Case Law

* The Denial of Equal Treatment or Political Discrimination as an Aspect of Freedom of Speech, Expression and Publication.

Among the cases that stand out in this respect, Sunanada Deshapriya v Municipal Council of N’ Eliya may be considered. In Sunanda Deshapriya, 450 copies of an opposition Newspaper- Yukthiya – were seized on the orders of a Mayor of a provincial city –Nuwara Eliya. It was established that the seized newspaper was a fervent critic of the Government of Sri Lanka. The action was brought in for the violation of the freedom of speech, expression and publication. The Supreme Court allowed the action, and awarded damages which were ordered to be paid personally by the Lady Major of N’ Eliya. It was under her orders that the copies of the newspaper were seized.

Article 12 of the Constitution, to which the judgment refers, declares in its (2nd) paragraph, that ‘No citizen shall be discriminated against on the grounds of race, language, caste, sex, political opinion, place of birth or anyone of such grounds’. What the Court did in Sunanda Deshapriya was to forge a nexus between that sub-section and the freedom of expression Article. In doing so, the Court has expanded the ambit of the freedom of expression in Article 14(1)(a) to include ‘denial of equal treatment or discrimination because of political opinion’. There is therefore no reason why in another situation the Court cannot find discrimination on the grounds of race, religion, language, caste, sex or place of birth amounting to a violation of freedom of speech, expression and publication.

* A violation of the Right to Legitimate Political Protect as an Aspect of a Violation of the Freedom of Speech and Express including Publication

Legitimate political protest may take several forms.

In Amaratunga v Sirimal, the Sri Lankan Freedom Party, then in the Opposition, organized a rather unusual political protest against the Premadasa government, on 1st July 1992. On that date, people who opposed the Government were called out to perform what was called in the vernacular a ‘Jana Ghosha’ – a peoples’ vocal protest – by –‘in concert with others causing terrible dim and dramming. The Respondents arrested the Petitioner. The Supreme Court held that the Respondents had violated the fundamental rights to speech, expression and publications, found in Article 14(1) (a) of the Constitution. Justice Mark Fernando observed:

‘Speech and expression extend to forms of expression other than oral or verbal placards, picketing, the wearing of black arm bands, the burning of draft cards, the display of flags, badges, banners or devices, the wearing of a jacket bearing a statement etc……’

* The Right to Organize, Hold and Conduct Meetings as an Aspect of the Freedom of Speech and Expression, including Publication.

The right to hold meetings has been linked to the set of three rights recognized in Article 14 (1)(a) of the Constitution. Namely, free speech, expression and the right to publish. In Joseph Perera v Attorney-General, the Petitioner and three others, who were members of the ‘Revolutionary Communist League’ organised a meeting to discuss ‘Popular Fronts and Free Education’. Two days prior to the meeting a leaflet was issued pertaining to the meeting. In that leaflet ‘the organisers accused the governing United National Party. The Police arrested the Petitioner and his principal organisers, stopped the meeting and dispersed those who had come to attend it. The Court held that the initial arrest was justified. The Court found that the further detention of the Petitioners was a violation of Article 14(1)(a) of the Constitution. Sharvananda CJ, wrote:

‘Freedom of speech and expression means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, pictures or by any other mode. It includes the expressing of one’s ideas through banners, posters, signs etc. It includes the freedom of discussion and dissemination of knowledge. It includes the freedom of the press and the Propagation of ideas; this freedom is ensured by the freedom of circulation. The right of the people to hear is within the concept of freedom of speech. There must be untrammeled publication of news and views and of the opinions of political parties which are critical of the actions of the Government and expose its weaknesses. Debate on public issues should be uninhibited, robust and widely open and that may well include vehement, caustic and sometimes sharp attacks on Government. Such debate is not calculated and does not brig the Government into hatred and contempt…..’

This passage of the learned Chief Justice has been quoted in subsequent decisions as the locus classicus when considering the thin line between legitimate criticism and legitimate concerted action against the policies of a government on the one hand and subversion on the other.

* The Right to Publish is inherent in the Freedom of Speech and Expression

Freedom of thought enshrined in Article 10 of the Constitution is meaningless unless there is the fullest support in the Constitution to the freedoms of speech and expression. These two freedoms, become a reality through the freedom to publish. These freedoms therefore are inter linked and do provide the underpinnings for the other freedoms that provide the origio et fons for a democratic society. In Re The Constitutionality of the Sri Lanka Broadcasting Bill, the Petitioners raised the issue before the Supreme Court as to whether the Bill in its present form violated, among others, Article 14(1)(a) of the Constitution. The facts revealed that the government broadcaster was subject to a less strict standard of accountability than the private broadcaster. The Court held that there was a violation of the equality provisions of the Constitution and a violation of Article 14(1) (a), the freedom of publishing.

* Right to Receive Information as an Aspect of the Right to Free Speech, Expression and Publication.

The right to receive news is intertwined with the right of free speech, expression and publication. These together underpin education. In Wimal Frenando v the Sri Lanka Broadcasting Corporation, the Petitioner alleged that the government controlled Sri Lanka Broadcasting Corporation terminated its ‘non-formal Education Program’ and by doing so the Corporation violated his fundamental rights to ‘freedom of speech and expression’. The program dealt with a wide range of subjects, namely: human rights, ethnicity, sociology, legal and medical issues. The Supreme Court unanimously held that his right to receive and impart his views, which the program provided was an aspect of his fundamental right to free speech, expression and publication and therefore its withdrawal constituted a violation of Article 14(1) (a) of the Constitution. The petitioner in Environmental Foundation Ltd v Urban Development Authority challenged the handing over of the management and control Galle Face Green, a 14 acre seaside promenade in Colombo, to E.A.P. Ltd. the request by the Petitioner to deliver to it copies of the Order vesting the Green in the UDA, lease agreement with the EAP group and approved plan was rejected by the UDA.

The Supreme Court held that although the freedom of information was not specifically guaranteed in the Constitution, for the freedom of speech and expression including publication to be meaningful and effective, it should carry within its scope and implicit right of a person to secure relevant information from a public authority in respect of a matter that should be in the public domain. The bare denial of access to official information amounted to a violation of petitioners right under article 14(1) (a).

* A Right to Vote at Elections as an Aspect of the Freedom of Expression

The right to vote is central to the whole process of government, and the Courts have interpreted the right to vote as an aspect of the freedom of expression which is a fundamental human right under the Constitution.

In Janatha Vimukthi Peramuna v AG and Five Others, the Supreme Court held among other grounds, that the provisions of the Provincial Councils Elections (Special Provisions) Bill violated Article 14(1)(a) of the Constitution. The Supreme Court held that the right to vote was an aspect of the right of free speech and of expression. Franchise was not limited to voting. It includes the right to stand for elections, and indeed the whole process stretching from the right to be nominated to the declaration of the person elected at the end of the process.

(The writer is an Attorney-at-Law). 


 

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