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Supreme Court of Sri Lanka |
] [Hide Context] 314
SUNILA ABEYSEKERA
v.
ARIYA RUBASINGHE, COMPETENT AUTHORITY AND OTHERS
SUPREME COURT
AMERASINGHE, J.
WADUGODAPITIYA, J. AND
WEERASEKERA, J.
S. C. APPLICATION No. 994/99
25TH FEBRUARY AND
23RD MARCH, 2000
Fundamental Rights - Emergency (Prohibition on Publication and Transmission
of Sensitive Military Information) Regulation No. 1.
of 1998 as amended
-Articles I. 12(1),14(1)(a) and 15(7) of the Constitution -Public Security
Ordinance, section 5 (Cap. 40) -
Pre censorship. -
The Emergency (Prohibition on Publication and Transmission of Sensitive Military
Information) Regulation No. 1 of 1998 published
in Gazette Extraordinary No.
1030/28 of 5th June 1998 as amended on 6th June 1999 prohibited the publication,
inter alia, of "any
publication pertaining to official conduct, morale, the
performance of the Head or any member of the Armed Forces or the Police
Force or
of any person authorised by the Commander - in - Chief of the Armed Forces for
the purpose of rendering assistance in
the preservation of national security."
The regulation empowered the Competent Authority to prohibit the use of any
press or equipment and to seize the same where there
has been a contravention of
the regulation through such media.
The said regulations were made by the President under section 5 of the Public
Security Ordinance. (Cap. 40).
The petitioner who was actively engaged in furthering Interracial Justice and
Equality and free and fair elections and interested
in the resolution of the
"ethnic conflict and the war in the North" complained that the restriction
imposed by the aforesaid
regulation deprived her of receiving information
regarding the war and the ethnic conflict in breach of her rights under Article
10 of the Constitution, the said regulation was unwarranted, discriminatory and
arbitrary and violative of Article 12(1); and that
it was overbroad and vague
and therefore not necessary in a democratic State; hence it was violative of her
rights under Article
14(1)(a) of the Constitution. The petitioner alleged that
the aim of
315
the impugned regulation was to
prohibit the publication of information that was embarrassing to the Government,
rather, than to
protect national security.
At the hearing of the application counsel for the petitioner did not press the
alleged infringement in respect of Article 10 of
the Constitution.
Held:
l. The petitioner has failed to show that the genuine purpose or demonstrable
effect of the regulation was to protect the government
from embarrassment or
wrongdoing. Nor has she shown that the protection of national security was a
"pretext".
2. The impugned regulations were framed in reasonably precise terms and confined
in their application to defined circumstances.
As such there was no violation of
the petitioner's rights under Article 12(1) of the Constitution.
3. a Per Amerasinghe, J.
"Freedom of speech necessarily protects the right to receive information,
regardless of the social worth of such information."
b Article 15(7) of the Constitution provides that the exercise of the rights
under Article 14(1)(a) shall be subject to such restrictions
as may be
prescribed by "Law" (which expression includes emergency regulations) in the
interest of, inter alia, national
security.
c. The burden of establishing restrictions imposed under Article 15(7) is heavy.
Per Amerasinghe, J.
"Exceptions [to Article 14(1)(a)) must be narrowly and strictly construed for
the reason that the freedom of speech constitutes
one of the essential
foundations of a democratic society, which, as we have seen, the Constitution,
in no uncertain terms, declares
Sri Lanka to be"
d. While the preservation of morale of the Armed Forces is an important matter,
yet, in a democracy, freedom of speech performs
a vital role in keeping in check
persons holding public office. Hence, even if the restriction is not expressly
related to the
conduct of such persons in the North and East, the regulations
must be interpreted
316
restrictively to limit it to
information concerning such persons in the North and East.
4. A restriction on the freedom guaranteed by Article 14(1)(a) will be
unconstitutionally overbroad and violative of Article 155(2)
of the Constitution
if there is no proximate or rational nexus between the restrictions imposed and
the object sought to be achieved
namely, the interest of national security.
Regulations which vest arbitrary powers of censorship in administrative
officials may
be struck down as being overbroad.
Per Amerasinghe, J.
"................... if the court is satisfied that the restrictions are clearly
unreasonable, they cannot be regarded as being
within the intended scope of the
power under Article 15(7)"
5. a The impugned restrictions had a basis in law, and that as far as the
quality of the law was concerned. it was formulated with
sufficient precision to
enable the petitioner to foresee, to a degree that was reasonable in the
circumstances, consequences which
a given action may entail: and even though the
discretion of the Competent Authority was wide, the scope of the discretion and
the manner of its exercise were indicated with sufficient clarity to enable the
discretion to be reviewable and to give the petitioner
adequate protection
against arbitrary interference.
b. The restrictions imposed were not disproportionate to the legitimate aim of
the regulations, namely the furtherance of the interest
of national security in
terms of Article 15(7).
6. In the circumstances, the petitioners fundamental rights under Article
14(1)(a) have not been infringed.
Cases referred to:
1. Joseph Perera alias Bruten Perera v. The Attorney-General and Others,
(1992) 1 Sri L. R. 199.
2. Re Compulsory membership of journalists association, (1986) 8 E. H. R. R.
165.
3. Channa Pieris and Others v. The Attorney-General and Others, (1994) 1 Sri L.
R. 1.
317
4. Palko v. Connecticut, 302
U. S. 319, 327: 658 S. Ct. 149. 152: 82 L. Ed. 288 (1937).
5. Fernando v. The S. L. B. C. and Others (1996) 1 Sri L. R. 157.
6. Sumith-Jayantha Dias v. Reggie Ranatunge, Deputy Minister of Transport and
Others, (1999) 2 Sri L. R 8.
7. Stanley v. State of Georgia, 394 U.S. 557: 89 S. CL 1243: 22 L. Ed. 2d 542
(1969).
8. Whitney v. California, 274 U. S. 357:47 S. Ct. 641, 71 L. Ed. 1095 (1927).
9. Handyside v. The United Kingdom, (1976) 1 E. H. R. R 737.
10. The Sunday Times v. The United Kindgom, (1979) 2 E. H. R. R. 245.
11. Barthold v. Germany, (1985) 7 E. H. R. R. 383.
12. Hodgson, Woof Productions and National Union of Journalists and Channel Four
Television v. United Kindgom, (1988) 10 E. H. R.
R. 503.
13. App. No. 11508/85 v. Denmark, (1989) 11 E. H. R. R. 543.
14. Muller v. Switzerland, (1991) 13 E. H. R. R. 212.
15. The Observer and the Guardian v. United Kindgom, (1992) 14 E. H. R. R. 153.
16. The Sunday Times v. United Kingdom (No. 2), (1992) 14 E. H. R. R 229.
17. Castells v. Spain. (1992) 14 E. H. R. R 445.
18. Thorgeirson v. Iceland, (1992) 14 E. H. R. R. 843.
19. Brind and Others v. United Kingdom, (1994) 18 E. H. R R. C. D. 76.
20. Jerslid v. Denmark, (1995) 19 E. H. R. R. 1.
21. Otto Preminger Institute v. Austria, (1995) 19 E. H. R. R. 34.
22. Oberschlick v. Austria, (1995) 19 E. H. R. R. 389.
23. Piermont v. France, (1995) 20 E. H. R. R. 301.
24. Goodwin v. United Kingdom, (1996) 22 E. H. R R 123.
25. Adams and Benn v. United Kingdom, (1997) 23 E. H. R. R C. D. 160.
26. Wingrove v. United Kingdom, (1997) 24 E. H. R R. 1.
318
27. Visuvalingam and Others v.
Liyanage and Others (1983) 2 Sri L. R. 311.
28. Visuvalingam and Others v. Liyanage (1984) 2 Sri L. R. 123.
29. Ratnasara Thero v. Udugampola, (1983) 1 Sri L. R 461.
30. Mohottige and Others v. Gunatillake and Others, (1992) 2 Sri L. R. 246.
31. Amaratunga v. Sirimal and Others (1993) 1 Sri L. R. 264.
32. Deshapriya and Another v. Municipal Council, Nuwara Eliya and Others, (1995)
1 Sri L. R. 362.
33. Dejonge v. Oregon, 299 U.S. 353,57S. Ct. 255.81 L. Ed. 278 (1937).
34. Marian and Another v. Upasena, (1998) 3 Sri L. R. 177.
35. Gunawardena and Another v. Pathirana, O. 1. C., Police Station, Elpitiya and
Others, (1997) 1 Sri L. R. 265.
36. Karunathilaka and Another v. Dayananda Dissanayake, Commissioner of
Elections and Others, (1994) 1 Sri L. R. 157.
37. Open Door Counselling and Dublin Well Woman v. Ireland, (1993) 15 E. H. R.
R. 244.
38. Information sverein Lentia v. Austria, (1994) 17 E. H. R. R. 93.
39. Martin v. City of Struthers, 319 U. S. 141; 63 S. Ct. 862; 
87 L. Ed. 1313
(1943).
40. Winters v. New York, 333 U. S. 507; 68 S. Ct. 665; 92 L. Ed. 840 (1948).
41. Griswold v. Connecticut, 381 U.S. 479; 85S. Ct. 1678; 14L. Ed. 2d 510
(1965).
42. Lamont v. Postmaster General, 381 U. S. 301; 85 S. Ct. 1493; 14 L. Ed. 2d.
398 (1965).
43. Pierce v. Society of Sisters, 268 U.S. 510; 45 S. Ct. 571; 69 L. Ed. 1070
(1925).
44. Casado Coca v. Spain, (1994) 18 E. H. R. R. l .
45. Abeyratne v. Gunatilake and Others, (1994) 2 Sri L. R. 294.
46. Prager and Obserschlik v. Austria, (1996) 21 E. H. R. R. 1.
47. Lingens v. Austria, (1986) 8 E. H. R. R. 407.
48. Worm v. Austria. (1996) 22 E. H. R. R. C. D. 7.
319
49. McLaughlin v. United
Kingdom, (1994) 18 E. H. R. R. 84.
50. Vereinigung Democratischer Soldaten Osterreichs and Gubi v. Austria, (1995)
20 E. H. R. R. 56.
51. Vereniging Radio 100 et al. v. Netherlands, (1996) 22 E. H. R. R. C. D. 198.
52. Abrams v. United States, 250 U.S. 616; 40 S. CL 17:63 L. Ed. 1173, (1919).
53. Red Lion Broadcasting Co. v. F. C. C., 395 U. S. 376. 89 S. Ct. 1794: 23 L.
Ed. 2d. 371, (1961).
54. West Virginia Board of Education v. Barnette, 319 U.S. 624; 633 S. Ct. 1178;
87 L. Ed. 1173, (1943).
55. Shantha Wyeratne v. Vijitha Perera and Others, S. C. Application 379/93, S.
C. Minutes of 03.02.94.
56. Gitlow v. New York, 268 U. S. 652; 45 S. CL 625: 69 L. Ed. 1138. (1925).
57. Dissanayaka v. Sri Jayewardenapura University, (1986) 2 Sri L. R.254.
58. Gaskin v. United Kingdom, (1987) 9 E. H. R. R. 279.
59. Gaskin v. United Kingdom, (1989) 11 E. H. R. R. 402.
60. Leander v. Sweden, (1987) 9 E. H. R. R. 433.
61. Wallen v. Sweden (1986) 8 E. H. R. R. 320.
62. Chaplinsky v. New Hampshire, 315 U. S. 568. (1942).
63. Cantwell v. Connecticut, 310 U. S. 296 (1940).
64. Schenck v. United States, 249 U. S. 47; S. Ct. 247; 63 L. Ed. 470,
65. Mallawaarachchi v. Seneviratne, S. C. Application 212/88, S. C. Minutes of
28.09.1989.
66. Bernard Soysa and Two
Others v. The A. G. and Two Others, (1991) 2 Sri L. R. 56.
67. Saranapala v. Solanga Arachchi, Senior Superintendent of Police, and Others,
(1999) 2 Sri L. R. 166.
68. Mahinda Rajapakse v. Kudahetti and Others, (1992) 2 Sri L. R. 223.
69. Walker v. City of Birmingham, 388 U. S. 307: 87 S. Ct. 1824; 18 L. Ed. 2d
1210. (1967).
320
70. Markt Intern Verlag and
Been-tan v. Germany, (1990) 12 E. H. R. R. 161.
71. Dennis v. United States, 341 U.S. 495:71 S. Ct. 857,95 L. Ed. 1157, (1951).
72. New York Times Co. v. U. S., and United States v. The Washington Post
Company et al., 403 U. S. 713: 91 S. Ct. 2140, (1971).
73. Travancore-Cochin v. Bombay Co. Ltd., (152) S. C. R. 1112.
74. Bombay v. R. M. D. Chamarabagawalla, (157) S. C. R. 874.
75. Express Newspapers (Private) Ltd. v. Union, (1959) S. C. R. 12.
76. Kingsley International Pictures Corporation v. Regents of the University of
New York, 360 U. S. 684; 79 S. Ct. 1362: 3 L. Ed.
2d 1512 (1959).
77. United States v. Carotene Products Co., 304 U.S. 144, 58 S. Ct. 778: 82 L.
Ed. 1234. (1938).
78. Brandenberg v. Ohio, 395 U. S. 444; 89 S. Ct. 1827; 23 L. Ed. 2d. 430,
(1969).
79. Hess v. Indiana, 414 U. S. 105; 94 S. Ct. 326; L. Ed. 303, (1973).
80. Frohwerk v. United States, 249 U. S. 204 (1919).
81. United States v. David Paul O'Brien, 391 U.S. 367; 88 S. Ct. 1673, (1968).
82. Hins and Hugenhottz v. Netherlands, (1996) 21 E. H. R. R. C. D. 124.
83. Gay News v. United Kingdom, (1983) 5 E. H. R. R. 123.
84. G. V. Germany, (1984) 6 E. H. R. R 467.
85. Markt Intern and Beerman v. Germany, (1989) 11 E. H. R. R. 212.
86. Times Newspapers Ltd. and Neil v. United Kingdom, (1993) 15 E. H. R. R. C.
D. 49.
87. Groppera Radio AG v. Switzerland (1990) 12 E. H. R. R. 321.
88. Arrowsmith v. United Kingdom, (1982) 3 E. H. R. R. 218.
89. Tolstoy Miloslavsky v. United Kingdom. (1995) 20 E. H. R. R. 442.
90. Near v. Minnesota, 283 U. S. 697; 51 S. Ct. 625; 75 L. Ed. 1357, (1931}.
91. Wickremasinghe v. Edmund Jayasinghe, (1995) 1 Sri L. R. 300.
321
92. Debs v. United States, 249
U. S. 211, (1919).
93. Ekanayake v. Herath Banda, S. C. App. 25/91 (F. R.), S. C. Minutes of
11.10.91.
94. Amaratunga v. Sirimal, S. C. App. 468/92. S. C. Minutes of 08.03.93.
95. McCray v. United States, 195 U. S. 27, 56; 24 S. Ct. 769, 776; 49 L. Ed. 78.
(1904).
96. State of Arizona v. State of California, 283 U. S. 423; 455; 51 S. CL 522;
75 L. Ed., 1154. (1931).
97. Malalgoda v. A. G. and Another, (1982) 2 Sri L. R. 777.
98. Lingens and Leitgens v. Austria, (1982) 4 E. H. R R 373.
99. App. No. 12230/86 v. Germany, (1989) 11 E. H. R. R. 101.
100. Barfod v. Denmark, (1991) 13 E. H. R R 493.
101. Wickremabandu v. Herath and Others, (1990) 2 Sri L. R 348. 102. Rohr v.
Switzerland, (1989) 11 E. H. R. R. 81.
103. Bowman v. U. K., (1996) 22 E. H. R R. C. D. 13.
104. Autronic AG v. Switzerland (1990) 12 E. H. R. R 485. 105. Weber v.
Switzerland (1990) 12 E. H. R. R 508.
106. Shelton v. Tucker 364 U. S. 479, 81 S. Ct. 247, (1960).
107. Siriwardene and Others v. Liyanage, (1983) 2 Sri L. R 164.
108. Klass and Others v. Federal Republic of Germany, (1979-80) 2 E. H. R. R
214.
109. App. No. 10628/83 v. Switzerland, (1987) 9 E. H. R R. 107.
110. App. No. 11508 v. Denmark, (1989) 111 E. H. R R. 543.
111. Lovell v. Griffin 303 U. S. 444; 58 S. Ct. 666; 82 L. Ed. 949, (1938).
112. Cantwell v. Connecticut, 310 U. S. 296; S. Ct. 900; 84 L. Ed. 1213, (1940).
113. Saia v. New York, 334 U. S. 558; 68 S. Ct. 1148; 92 L. Ed. 1574. (1948).
114. Kunz v. New York, 340 U. S. 290; 71 S. Ct. 312; 95 L. Ed. 280, (1951).
115. Yasapala v. Wickramasinghe, (1980) 1 F. R. D. 143.
116. Vereninging Weekblad Bluf v. Netherlands, (1995) 20 E. H. R R. 189.
322
APPLICATION for relief for
infringement of fundamental rights.
R. K. W. Goonesekera with S. H. Hewamanne, J. C. Weliamuna and Kishali
Pinto Jayawardena for the petitioner.
Saleem Marsoof, P. C., A. S. G. with U. Egalahewa, S. C. for the
respondent
Cur. adv. vult.
May 15, 2000
AMERASINGHE, J.
THE IMPUGNED EMERGENCY REGULATIONS AND THEIR PRECURSORS
On 21 September 1995, the President of Sri Lanka (hereinafter referred to as the
President) made the following regulations under
section 5 of the Public Security
Ordinance.
"1. These Regulations may be cited as the Emergency (Restriction on Publication
and Transmission of Sensitive Military Information)
Regulations, No. 1 of 1995.
2. The President may for the purpose of these regulations, appoint, by name or
by office, any person or body of persons to be the
Competent Authority.
3. No Editor or Publisher of a Newspaper or any person authorized by or under
law, to establish and operate a Broadcasting Station
or Television Station
shall, whether in or outside Sri Lanka, print, publish or distribute or
transmit, whether by means of electronic
devices or otherwise, or cause to be
printed, published, distributed or transmitted whether by electronic means or
otherwise, any
material containing any matter which pertains to any operations
carried out, or proposed to be carried out, by the Armed Forces
or the Police
Force (including the Special Task Force), the procurement or proposed
procurement of arms or supplies by any such
Forces, the deployment of troops or
personnel, or the deployment or use of equipment, including aircraft or naval
vessels, by any
such Forces.
323
4. Where any person prints,
publishes, distributes or transmits, or causes to be printed, published,
distributed or transmitted,
whether by electronic means or otherwise, any matter
in contravention of the provisions of regulation 3, the Competent Authority
may,
after issuing such directions, as he considers necessary to effect compliance
with the provisions of such regulation, make
order that the press or equipment
used for such printing, publication, distribution or transmission shall, for
such period as is
specified in that order not be used for the purpose of
printing, publication, distribution or transmission of any matter referred
to in
regulation 3 and the Competent Authority may by the same order authorise any
person specified therein to take such steps
as appears to the person so
authorised to be necessary, for preventing the printing, publication,
distribution or transmission
of any such material.
5. Any person who prints, publishes, distributes or transmits, any material in
contravention of the provisions of regulation 3,
shall be guilty of an offence."
On October 02, 1995, (Gazette Extraordinary No. 891/3) the President amended the
regulations made on 21 September 1995 by adding,
"any statement pertaining to
the official conductor the performance of the Head or any member of any of the
Armed Forces or
the Police Force", to the list of restricted subjects.
On December 20, 1995, the President, acting under section 5 of the Public
Security Ordinance, rescinded the Emergency (Restriction
on Publication and
Transmission of Sensitive Military Information) Regulation No. I of 1995, as
amended by the regulation of October
2, 1995.
On 19 April 1996, the President made the following regulations under section 5
of the Public Security Ordinance.
324
" 1. These Regulations may be
cited as the Emergency (Prohibition on Publication and Transmission of Sensitive
Military Information)
Regulations No. 1 of 1996.
2. No Editor or Publisher of a Newspaper or any person authorised by or under
law to establish and operate a Broadcasting Station
or a Television Station
shall, whether in or outside Sri Lanka, print, publish, distribute or transmit,
whether by means of electronic
devices of otherwise, or cause to be printed,
published, distributed or transmitted whether by electronic means or otherwise,
any
material containing any matter which pertains to any operations carried out
or proposed to be carried out, by the Armed Forces or
the Police Force
(including the Special Task Force), the procurement or proposed procurement of
arms or supplies by any such Forces,
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 or the
performance of the Head or any member of any of the Armed Forces
or the Police
Force.
3. Where any person prints, publishes, distributes or transmits, or causes to be
printed, published, distributed or transmitted,
whether by electronic means or
otherwise, any matter in contravention of the provisions of regulation 2, the
Competent Authority
may, after issuing such directions as he considers necessary
to effect compliance with the provisions of such regulation, make order
that the
press or equipment used for such printing, publication, distribution or
transmission shall for such period as is specified
in that order not be used for
the purpose of printing, publication, distribution or transmission of any matter
referred to in regulation
2 and the Competent Authority may by the same order
authorise any person specified therein to take such steps as appears to the
person so authorised to be necessary, for preventing the printing, publication,
distribution or transmission of any such material.
325
4. The President may for the
purpose of these regulations, appoint, by name or by office, any person or body
of persons to be the
Competent Authority.
5. Any person who prints, publishes, distributes or transmits, any material in
contravention of regulation 2 shall be guilty of
an. offence."
On 8 October 1996, the Emergency (Prohibition on Publication and Transmission of
Sensitive Military Information) Regulations No.
l of 1996 were rescinded by a
regulation made by the President under section 5 of the Public Security
Ordinance.
On 5 June 1998, the President made the following regulations under section 5 of
the Public Security Ordinance:
"1. These Regulations may be cited as the Emergency (Prohibition on Publication
and Transmission of Sensitive Military Information)
Regulations No. 1 of 1998.
2. No Editor or Publisher of a Newspaper or any person authorised by or under
law, to establish and operate a Broadcasting Station
or a Television Station
shall whether in or outside Sri Lanka, print, publish, distribute or transmit
whether by means of electronic
devices or otherwise, or cause to be printed,
published, distributed or transmitted whether by electronic means or otherwise,
'any
material containing any matter which pertains to any operations carried out
or proposed to be carried out, by the Armed Forces or
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 or the
performance
of the Head or any member of the Armed Forces or the Police Force.
3. Where any person prints, publishes, distributes or transmits, or causes to be
printed, published, distributed or
326
transmitted, whether by
electronic means or otherwise, any matter in contravention of the provisions of
Regulation 2, the Competent
Authority may, after issuing such directions as he
considers necessary to effect compliance with the provisions of such regulation,
make order that the press or equipment used for such printing, publication
distribution or transmission shall for such period as
is specified in that order
not be used for such printing, publication, distribution or transmission of any
matter referred to in
Regulation 2 and the Competent Authority may by the same
order authorise any person specified therein to take such steps as appears
to
the person so authorised to be necessary for preventing the printing,
publication, distribution or transmission of any such
material.
4. The President may for the purpose of these regulations, appoint by name or
office, any person or body of persons to be the Competent
Authority.
5. Any person who prints, publishes, distributes or transmits any material in
contravention of the provisions of Regulation 2 shall
be guilty of an offence."
On 6 November 1999, the President made the following regulations, hereinafter
referred to as the 'impugned regulations', under section
5 of the Public
Security Ordinance:
"I. The Emergency (Prohibition on Publication and Transmission of Sensitive
Military Information) Regulation 01 of 1998 published
in Gazette Extraordinary
No. 1030/28 of 05th June, 1998 and deemed to be in force by virtue of Section 2A
of the Public Security
Ordinance, is hereby amended by the substitution for
Regulation 2 thereof, of the following new Regulation:
2. No Editor or Publisher of a newspaper or any person authorised by or under
law to establish and operate a Broadcasting Station
or a Television Station
shall, except
327
with the permission of the
Competent Authority, print, publish, distribute or transmit whether by means of
electronic devices or
otherwise 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
(sic.) 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 vessel by any such forces or any statement pertaining to the official
conduct, moral [e], the performance of
the Head or any member of the Armed
Forces or the Police Force or of any person authorised by the Commander-in-Chief
of the Armed
Forces for the purpose of rendering assistance in the preservation
of national security."
THE PETITIONER AND HER COMPLAINT
The petitioner is the President of the Movement for Interracial Justice and
Equality (MIRJE) and a member of the Executive Committee
of the Movement for
Free and Fair Elections (MFFE). The petitioner stated that during the
Presidential election campaign of 1999,
any citizen or political party had the
right to "seek, receive and impart information or. the ethnic conflict and the
war
and" had "the concomitant right to seek and receive and impart information
on the military strategies and drawbacks in
the conduct of the military
operations in the North and East." The petitioner went on to state that she is
"a registered
voter in the country and a public spirited citizen concerned about
the integrity of the democratic process and the people's franchise
guaranteed by
Article 3 of the Constitution. As a social/human rights activist concerned about
the ethnic conflict and the war
in the North and East", she said she had
"actively taken part in debate to resolve the said conflict and hence she is
required to know the correct position with regard to the long drawn out war
between the
328
Armed Forces and the LTTE", The
petitioner said that her "opinion on all activities relating to the ethnic
conflict in
the country in general and in relation to the (1999 Presidential)
election is based on information received by her on the said war
and hence any
prior restraints on information as aforesaid is contrary to the rights
guaranteed to the petitioner under Article
10 of the Constitution".
The petitioner states that the amended regulation made by the President on 6
November 1999 had "been imposed by Presidential
Order in a manner that is
unwarranted, discriminatory, and arbitrary and violative of Article 12(1) of the
Constitution".
The petitioner further states that "as a result of the said amended
Regulation... she is constrained from forming (sic.) and
communicating
information on matters of public debate and which are of vital concern to the
nation and which task she had been
hitherto responsibly engaged in as an
Executive Director of INFORM." Consequently, it is alleged, that the
petitioner's fundamental
rights guaranteed by Article 14(1) (a) of the
Constitution have been violated.
Article 10 of the Constitution states: "Every person is entitled to freedom of
thought, conscience and religion, including
the freedom to adopt a religion or
belief of his choice."
Article 12(l) states: "All persons are equal before the law and are entitled to
the equal protection of the law."
Article 14(1)(a) states: "Every citizen is entitled to the freedom of speech and
expression including publication."
On the face of it, the impugned regulations apply to all persons and they have
not been shown to have been applied in a discriminating
manner. In Joseph Perera
alias Bruten Perera v. The Attorney-General and Others, (1) especially at p.
230, the Court held that
the impugned regulation in that case violated Article
12 of the Constitution since it had vested
229
the Police with "naked"
"unguided" and "arbitrary" power "enabling them to discriminate".
In the instant
case, however, as we shall see, the impugned regulations were framed in
reasonably precise terms and confined in
their application to defined
circumstances. Therefore, I fail to see how the impugned regulations violate the
petitioner's rights
under Article 12(1) of the Constitution and I declare that
there has been no violation of that Article. With regard to Article 10,
the
gravamen of the petitioner's complaint was that she was deprived of the
opportunity of forming her own judgment as well as
influencing others by being
able, freely and openly without restraint, to have access to and receive and
disseminate information
on what the petitioner describes in her petition as the
"ethnic conflict and the war in the North and East." The petitioner's
substantial complaint is that the impugned regulations interfered with her
freedom of speech and expression guaranteed by Article
14(1) (a) of the
Constitution.
Freedom of speech and expression represents the means that enable the community,
when exercising its options to be sufficiently
informed. Cf. Re Compulsory
membership of journalists' association, (2) at p. 184 para. 70. Links between
free speech and some
of the other rights and freedoms recognized by our
Constitution, including freedom of thought and conscience, do exist. This hardly
comes as a surprise when we consider the words of the First Amendment of the
American Constitution, described in Channa Pieris
and Others v. The
Attorney-General and Others, (3) at p. 137, as "the progenitor of Article 14(1)
(a) (freedom of speech),
14(1)(b) (freedom of peaceful assembly), and 14(1)(e)
(freedom of association) of the Constitution." The First Amendment states
as
follows: "Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof;
or abridging the freedom of speech, or of
the press; or of the right of the people peaceably to assemble, and to petition
the Government
for a redress of grievances." Justice Cardozo observed that free
speech is "the matrix, the indispensable condition of
nearly every other form of
freedom." Palko
230
v. Connecticut, (4) cited in
Channa Pieris and Others v. Attorney-General and Others, (3) at p. 143.
The submissions of learned counsel for the petitioner concentrated on the
question of interference with the petitioner's freedom
of speech and expression,
including her right to receive and impart information. The complaint, it seems,
related to the deprivation
of food for thought by reason of interference with
her right to receive information which she could process and transmit by speech
and expression. rather than to an interference with her freedom of thought and
beliefs: Access to information made her right of
freedom of speech fully
meaningful. Cf. the observations of Fernando, J. in Fernando v. The S. L. B. C.
and Others (5) at p. 179.
Cf. also Sumith Jayantha Dias v. Reggie Ranatunge,
Deputy Minister of transport and Others, (6) at pp. 21 - 22. In the instant case
the complaint was not that the Government was exercising control over the mind
of the petitioner by dictating to her, while she
sat down in her own house, what
she may read or what audio-visual information she may gather. Cf. Stanley v.
State of Georgia,
(7). Understandably, learned Counsel for the petitioner did
not press the matter of the alleged violation of the petitioner's right
to
freedom of thought, although leave to proceed in respect of the alleged
violation of Article 10 had been granted. In the circumstances,
it is
unnecessary to deal separately with the question whether there has been a
violation of Article 10
FREEDOM OF SPEECH IN A REPRESENTATIVE DEMOCRACY
Freedom of speech is vitally important in the discovery of truth in the
market place of ideas so that the wishes of the people safely
can be carried
out; in serving the need of every man and woman to achieve personal fulfilment;
and in meeting the demands of a
democratic regime. I had, at some length,
endeavoured to discuss these three intrinsic bases of the right to freedom of
expression
in Channa Pieris, (3), at pp. 131-137 and feel reluctant to repeat
what I said. However, Thomas Emerson (Toward a General Theory
of the First
331
Amendment, 1963, 72 Yale L. J.
877, 894) observed: "The theory of freedom of expression is a sophisticated and
even complex
one. It does not come naturally to the ordinary citizen but needs
to be learned. It must be restated and reiterated not only for
each generation,
but for each new situation." In relation to the issues before this Court, where
the Constitutional validity
of the impugned regulations is being challenged,
principally on the ground that it is overbroad and therefore not necessary in a
democratic state, I should like to reiterate the following:
The preamble to the Constitution states that the people of Sri Lanka empowered
their representatives by a mandate to "draft,
adopt and operate" a new
Constitution "in order to achieve the goals of the DEMOCRATIC SOCIALIST
REPUBLIC, and having
solemnly resolved by the grant of such mandate . . . to
constitute Sri Lanka into a DEMOCRATIC SOCIALIST REPUBLIC, whilst ratifying
the
immutable republican principles of REPRESENTATIVE DEMOCRACY, and assuring to all
peoples FREEDOM, EQUALITY, JUSTICE, FUNDAMENTAL
HUMAN RIGHTS and the
INDEPENDENCE OF THE JUDICIARY as the intangible heritage that guarantees the
dignity and well-being of the
succeeding generations of the People of SRI LANKA
and of all the people of the World, who come to share with those generations the
effort of working for the creation and preservation of a JUST AND FREE SOCIETY:
WE, THE FREELY ELECTED REPRESENTATIVES OF THE PEOPLE OF SRI LANKA, in pursuance
of such mandate ... do hereby adopt and enact this
Constitution as the Supreme
Law of the Democratic Socialist Republic of Sri Lanka."
The words in capital letters so appear in the Constitution.
Article 1 of the Constitution states, "Sri Lanka (Ceylon) is a Free, Sovereign,
Independent and Democratic Socialist Republic
and shall be known as the
Democratic Socialist Republic of Sri Lanka." Article 27(2) states that "The
State
332
is pledged to establish in Sri
Lanka a democratic socialist society . . .
Article 27(2) states that "The State is pledged to establish in Sri Lanka a
democratic socialist republic. . ."
"Democratic" is derived from the Greek words demos (the people) and Kratos
(rule). Democracy is the rule of the people.
Although at a time when the Greek
States had small populations and limited franchise it was possible for the
people - at. any rate
those who were empowered at the time - to directly decide
every important issue, today, with large populations, universal suffrage,
infinitely more complex organizations of societies and the costs involved in
holding elections or referrenda, the people of most
countries, including Sri
Lanka, cannot directly participate in deciding every important issue, although
Article 3 of the Constitution
does state that "In the Republic of Sri Lanka
sovereignty is in the people and is inalienable", and that "sovereignty
includes
the powers of government. . ."
For practical reasons, people must act in a modern democracy through their
elected representatives. And so, Article 4 states:
"The sovereignty of the People shall be exercised and enjoyed in the following
manner:
(a) the legislative power of the People shall be exercised by Parliament,
consisting of elected representatives of the People and
by the People at a
referendum,
(b) the executive power of the People, including the defence of Sri Lanka, shall
be exercised by the President of the Republic elected
by the People;
(c) the judicial power of the People shall be exercised by Parliament through
courts, tribunals and institutions created and established,
or recognized by the
Constitution, or created and established by law, except in regard to matters
relating to
333
the privileges, immunities and
powers of Parliament and of its members, wherein the judicial power of the
People may be exercised
directly by Parliament according to law. . ."
The value of free speech in a democracy has been recognized by the Courts of
many democratic countries around the world. In Whitney
v. California, (8) quoted
in Channa Pieris, (3), at p. 137, explaining why the framers of the American
Constitution, who in 1787
had felt no need to include in the original document a
general theory of freedom of speech, in 1791, by the First Amendment, did
introduce the concept, justice Brandeis, said:
"Those who won our independence believed that the final end of the State was to
make men free to develop their faculties; and
that in its government the
deliberative forces should prevail over the arbitrary. They valued liberty both
as an end and as a means.
They believed liberty to be the secret of happiness
and courage to be the secret of liberty. They believed that freedom to think
as
you wish and to speak as you think are means indispensable to the discovery and
spread of political truth; that without free
speech and assembly discussion
would be futile; that with them, discussion affords ordinarily adequate
protection against the dissemination
of noxious doctrine; that the greatest
menace to freedom is an inert people; that public discussion is a political
duty; and that
this should be a fundamental principle of the American
Government. They recognized the risks to which all human institutions are
subject. But they 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. Believing in the power of reason
as applied through public discussion, they
eschewed silence coerced by law - the
argument of force in its worst form. Recognizing the occasional tyrannies of
governing
334
majorities, they amended the
Constitution so that free speech and assembly should be guaranteed."
The European Commission of Human Rights and the European Court of Human Rights
have repeatedly stressed that freedom of expression,
in particular freedom of
political and public debate, constitutes one of the essential foundations of a
democratic society, in
addition to being one of the basic conditions for its
progress, and for individual self-fulfilment and development of every man
and
woman. Handyside v. The United Kingdom, (9) at p. 754; The Sunday Times v. The
United Kingdom, (10) at p. 280: Barthold v.
Germany, (11) at p. 403; Hodgson,
Woolf Productions and National Union of Journalists and Channel Four Television
v. United Kingdom,
(12) at p. 507; App. No. 11508/85 v. Denmark, (13); Muller v.
Switzerland, (14) at p. 228; The Observer and the Guardian v. United
Kingdom,
(15) p. 178, and p. 191; The Sunday Times v. United Kingdom (No. 2) (16) at p.
235 and p. 241; Castells v. Spain, (17)
at p. 476; Thorgeirson v. Iceland, (18)
at p. 865; Brind and Others v. United Kingdom, (19) at p. C. D. 82; Jersild v.
Denmark,
(20) at p. 25; Otto Preminger Institute v. Austria, (21) at p. 57;
Oberschlick v. Austria, (22) at p. 421; Piermont v. France, (23)
at p. 341;
Goodwin v. United Kingdom, (24) at p. 143; Adams and Benn v. United Kingdom,
(25) at p. C. D. 164; Wingrove v. United
Kingdom, (26) at p. 52.
The Inter-American Court of Human Rights in Re compulsory membership of
journalists' association, (2) at pp. 183-184, has expressed
similar views. It
stated: "Freedom of expression is a cornerstone upon which the very existence of
a democratic society rests.
It is indispensable for the formation of public
opinion. It is a conditio sine qua non for the development of political parties,
trade unions, scientific and cultural societies and, in general, those who wish
to influence the public. It represents, in short,
the means that enable the
community, when exercising its options, to be sufficiently informed.
Consequently, it can be said that
a society that is not well informed is not a
society that is truly free."
335
Various important international
bodies have, from time to time, also endorsed the value of free speech and
expression in a democracy.
For instance, on the 29th of April 1982, the
Committee of Ministers of the Member States of the Council of Europe, in their
Declaration
on the Freedom of Expression and Information", among other things,
reiterated "their firm attachment to the, principles
of freedom of expression
and information as a basic element of democratic and pluralist society." (1983)
5 E. H. R. R. 311.
The Supreme Court of Sri Lanka too has stated that "freedom of speech and
expression is not only a valuable freedom in itself
but is basic to a democratic
form of Government." Joseph Perera's case, (1), at p. 223. The Supreme Court
stated in Channa
Pieris's case, (3), at p. 132: "Freedom of thought and
expression is an indispensable condition if Sri Lanka is to be more
than a
nominally representative democracy."
In Visuvalingam and Others v. Liyanage and Others (27) at pp. 320-323,
Wanasundera, J. referred to the submissions made to the Constitutional
Court on
the Sri Lanka Press Council Bill which, inter alia, provided "the background for
the drafting of the present constitutional
provisions relating to fundamental
rights," and at p. 548 said: "I am in agreement with Mr. Nadesan when he says
that
the freedom of the press embraces the freedom to propagate a diversity of
views. and ideas and the right of free and general discussions
of all public
matters . . ." See also the observations of Wimalaratne, J. accepted by Colin
Thome, J., Ranasinghe, J., Abdul
Cader, J. and in a separate judgment by
Rodrigo, J., in Visuvalingam and Others v. Liyanage (28) at p. 131.
In Ratnasara Thero v. Udugampola (29), the Court held that the seizure by the
Police of copies of pamphlets that had been printed
on a question of interest to
voters violated the petitioner's freedom of speech and expression including
publication and awarded
him compensation and costs. In Mohottige and Others v.
Gunatillake and Others (30), at p.255,
336
a prohibition imposed by the
Police on persons seeking to criticize the government and its activities was
said to "nullify
democratic government as is understood in this country". In
Amaratunga v. Sirimal and Others, (31), at p. 271, and in Deshapriya
and Another
v. Municipal Council, Nuwara Eliya and Others, (32), at p. 370, Fernando, J.
said: "The right to support or to
criticize Governments and political parties,
policies and programmes, is fundamental to the democratic way of life, and the
freedom
of speech and expression is one which cannot be denied without violating
those fundamental principles of liberty and justice which
lie at the base of all
civil and political institutions. Dejonge v. Oregon (23)." Cf. Marian and
Another v. Upasena, (34).
In awarding compensation for the violation of freedom
of speech, the Court has taken account of its numerous decisions stressing
the
importance of that fundamental right. Gunawardena and Another v. Pathirana, 0.I.
C., Police Station, Elpitiya and Others, (35),
at p. 274. And if has been held
that the Constitutional guarantee of free speech must be interpreted in the
light of the "fundamental
principles of democracy and the Rule of Law which are
the bedrock of the Constitution.": Karunathilake and Another v. Dayananda
Dissanayake, Commissioner of Elections and Others, (36) at p. 173.
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. The election of representatives is based
on an
appeal to reason and not to emotions; a system of government based on
representative democracy assumes it to be so. 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.
337
In its social dimension, freedom
of expression is a means for the interchange of ideas and information among
human beings and for
mass communication. It includes the right of each person to
seek to communicate his or her own views to others, as well as the right
to
receive opinions and information from others. Open Door Counselling and Dublin
Well Woman v. Ireland (37) at p.261; Informationsvere
in Lentia v. Austria(38),
at p. 113. Freedom of speech necessarily protects the right to receive
information, regardless of the
social worth of such information. The right is
fundamental to a free society. Martin v. City of Struthers, (39); Winters v. New
York, (40); Griswold v. Connecticut, (41); Lamont v. Postmaster-General, (42),
Stanley v. Georgia, (7); Cf. Pierce v. Society of
Sisters, (43). For the average
citizen, it is just as important to know the opinions of others or to have
access to information
generally as the very right to impart his or her opinions.
Re Compulsory membership of journalists' association, (2) at pp. 171-172.
In this connection the "dual aspect" of freedom of expression needs to be
stressed. It requires, on the one hand, that
no one be arbitrarily limited or
impeded in expressing his or her own thoughts. In that sense, it is a right that
belongs to each
individual. Its second aspect, on the other hand, in general,
implies a collective right to receive information and have access
to the
thoughts expressed by others. The right to receive information is an important
aspect of free speech and expression. Visuvalingam
and Others v. Liyanage and
Others, (28) at pp. 131-133.
Since the petitioners complaint is concerned with political matters and freedom
to use the print media, I have focussed attention
on those aspects. However, the
impugned regulations extend to all forms of expression and communication.
Therefore it must be stressed
that the principles relating to freedom of speech
and expression do not apply solely to certain types of information or ideas or
forms of expression. Freedom of speech and expression protects not only the
substance of the ideas and information expressed, but
also the form in
338
which they are conveyed.
Oberschlick v. Austria, (22) at p. 422. In its individual dimension, although
formulated primarily with
regard to speech and the print media, freedom of
speech and expression includes "all forms of freedom of speech and expression",
Karunathilaka and Another u. Dayananda Dissanayake, Commissioner of Elections
and Others, (36) at p. 173, including the right to
use audio-visual media,
Jersild u. Denmark, (20) at p. 26, and indeed whatever medium is deemed
appropriate to impart ideas and
to have them reach as wide an audience as
possible, and it includes artistic expression. See Article 19(2) of the
International
Covenant on Civil and Political Rights; Muller v. Switzerland,
(supra), (14) at p. 225. It also encompasses information of a commercial
nature
and even music, and commercials transmitted by cable. Casado Coca u. Spain, (44)
at p. 20.
In Amaratunga v. Sirimal and Others, (31), disapproval of the policies and
actions of government on a range of issues was expressed
by a fifteen minute,
noisy cacophany of public protests - Jana Ghosha - which included the ringing of
bells, tooting of motor vehicle
horns, the banging of saucepans and the beating
of drums. It was held at p. 270, citing several opinions of the U. S. Supreme
Court,
that "speech and expression" extended to forms of symbolic speech and
expression and that Jana Ghosha could be regarded
. as "speech and expression".
In Abeyratne v. Gunatilake and Others, (45) at p. 295 it was held that the
guarantee of
freedom of speech and expression and freedom of peaceful assembly
"could be rendered meaningless if permission for the use
of amplifying
mechanical devices in furtherance of free speech is unreasonably withheld."
It is only by informed discussion that proposals adduced can be modified so that
the 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.
339
The fact that people have elected
representatives does not imply that such representatives may always do as they
will; members of
the public must, in matters affecting them, be free to
influence intelligently the decisions of those persons for the time being
empowered to act for them. Every legitimate interest of the people or a section
of them should have the opportunity of being made
known and felt in the
political process. Moreover, in a representative democracy there must be a
continuing public interest in
the workings of government which should be open to
scrutiny and well-founded constructive criticism. Indeed, a central value of
free speech, and the concomitant rights of freedom of association and assembly,
lies in checking the abuse of power by those in
authority. The free press has a
legitimate interest in reporting on and drawing the public's attention to
deficiencies in the operation
of Government services, including possible illegal
activities. It is incumbent on the press to impart information and ideas about
such matters and the public has a right to receive them. The Observer and the
Guardian v. United Kingdom, (15) at p. 178; The Sunday
Times v. United Kingdom,
(No. 2), (16) at p. 235.
Journalism, it has been held, "is the primary and principal manifestation of
freedom of expression of thought." Re Compulsory
membership of journalists'
association, (2) at p. 184. 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, that whilst
it must not overstep the bounds set, it is nevertheless incumbent on the
press,
in away consistent with its duties and responsibilities, to disseminate
information and ideas and stimulate debate on political
issues and on other
matters of public interest. Castells v. Spain, (17) at 476; Prager and
Obserschlick v. Austria, (46) at p.
19-20. Not only does the press have the task
of imparting such information and ideas, the public also have a right to receive
them.
Sunday Times v. U. K., (10) at p. 280; Lingens v. Austria, (47) at p. 418;
Worm v. Austria, (48) at p. C. D. 39. Were it otherwise,
the press would be
unable to play its vital role of `public watchdog'.
340
The Observer and the Guardian, v.
U. K., (15) at p. 191; Tborgeirson v. Iceland, (18), at p. 865, Brind and Others
v. U. K., (19)
at p. 82; Jersild v. Denmark, (20) at p. 14, Goodwin v. U. K.,
(24) at p. 136. Freedom of the press affords the public one of the
best means of
discovering and forming an opinion of the ideas and attitudes of their political
leaders. In particular, it gives
politicians the opportunity to reflect and
comment on the preoccupations of public opinion; it thus enables everyone to
participate
in political debate which is at the very core of the concept of a
democratic society. Lingens v. Austria, (47) at pp. 418-419; Castells
v. Spain,
(17) at p. 476; Brind and Others v. U. K., (19) at p. 82; McLaughlin v. United
Kingdom, (49) at p. C. D. 92; Oberschlick
v. Austria, (22) at p. 422.
Freedom of speech and expression protects not only information or ideas that are
favourably received or regarded as inoffensive
or as a matter of indifference,
but also those that offend, shock or disturb the State or any sector of the
population. See Channa
Pieris, (3) at p. 134, cited in Gunawardena and Another
v. Pathirana, O. I. C., Police Station Elpitiya and Others, (35) at p. 278.
Such
are the demands of that pluralism, tolerance and broadmindedness without which
there is no `democratic society'. Handyside
v. U. K., (9) at p. 754; The Sunday
Times v. U. K., (10) at p. 280; Appl No. 11508/85 v. Denmark, (13) at pp.
560-561; Lingens
v. Austria (47), at p. 418; Muller v. Switzerland, (14) at p.
228; Castells v. Spain (17) at p. 476; Thorgeirson v. Iceland, (18)
at p. 865;
Brind and Others v. U. K., (19) at p. 82; Jersild v. Denmark, (20) at p. 14;
Otto Preminger Institute v. Austria, (21)
at p. 57; Obserschlick v. Austria,
(22) at p. 421; Vereinigung Democratischer Soldaten Osterreichs and Gubi v.
Austria, (50) at
p. 83; Piermont v. France, (23) at p. 341; Goodwin v. U. K.
(24) at p. 136; Vereniging Radio 100 et al. v. Netherlands, (51) at
p. C. D.
204.
Justice Holmes in Abrams v. United States, (52) quoted in Channa Pieris, (3) at
p. 136, said:
341
"Persecution for the expression
of opinions seems to me perfectly logical. If you have no doubt of your premises
or your power
and want a result with all your heart you naturally express your
wishes in law and sweep away all opposition. To allow opposition
by speech seems
to indicate that you think the speech impotent, as when a man says that he has
squared the circle, or that you
do not care wholeheartedly for the result, or
that you doubt either your power or your premises. But when men have realised
that
time has upset many fighting faiths, they may come to believe even more
than they believe the very foundations of their conduct
that the ultimate good
desired is better reached by free trade in ideas - that the best test of truth
is the power of the thought
to get itself accepted in the competition of the
market, and that truth is the only ground upon which their wishes can be carried
out. That at any rate is the theory of our Constitution . . ."
There is a vital societal interest in preserving an uninhibited market place of
ideas in which truth will ultimately prevail. Red
Lion Broadcasting Co. v. FCC,
(53). We are committed to the principle that debate on public issues should be
uninhibited, robust
and wide open. Channa Pieris, (3) at p. 36. An assumption
underlying Article 14(1) (a) of the Constitution is that speech can rebut
speech, propaganda will answer propaganda and that free debate of ideas will
result in the wisest policies, at least for the time
being. Channa Pieris, (3)
at p. 135.
Attempts to secure uniformity of ideas is fraught with danger. "Those who begin
coercive elimination of dissent soon find themselves
eliminating dissenters.
Compulsory unification of opinion achieves only the unanimity of the graveyard.
It seems trite that [the
Constitutional guarantee of freedom of expression] was
designed to avoid these ends by avoiding beginnings.- West Virginia Board
of
Education v. Barnette, (54), followed in Shantha Wijeratne v. Vijitha Perera and
Others, (55), Channa Pieris, (3) at pp. 42-43,
and in Gunawardena and Another v.
Pathirana, O. I. C., Police Station,
342
Elpitiya and Others, (35) at p.
277. As we have seen, Justice Brandeis pointed out in Whitney v. California, (8)
repression breeds
hate and hate menaces stable government. Nowak, Rotunda and
Young, Constitutional Law, pp. 836-7), cited with approval in Channa
Pieris, (3)
at p. 43, pointed out:
"Just as the ancient Roman eventually learned that executing Christians did not
suppress Christianity, modern governments should
realize that forbidding people
to talk about certain topics does not encourage public stability. It only
creates martyrs. Punishing
people for speech does not discourage speech; it only
drives it underground and encourages conspiracy. In the battle for public
order,
free speech is the ally, not the enemy."
RESTRICTIONS ON FREEDOM OF SPEECH IN GENERAL
Although one may think what one may wish, no intelligent person articulates or
ought to articulate every thought that happens to
pass through his or her mind,
anywhere at any time.
In the exercise and operation of a persons freedom of thought, . conscience and
beliefs, and the right to impart opinions, one might
be restrained by the
Buddha's advice to be watchful of one's speech, recalling the fate of the ever
hungry spirit (peta), with
the head of a pig and the body of a human being, with
its mouth swarming with maggots, who ignored the Buddha's admonition. Dhammathha
Vagga, xx. 6.
Those who cannot restrain themselves for moral reasons are in many ways
prevented by taw from speaking as they think, for the societal
value of speech
must on occasion be subordinate to other values and considerations. Article
28(e) of the Constitution draws our
attention to the fact that - "the exercise
and enjoyment of rights and freedoms is inseparable from the performance of
duties
and obligations" and reminds us that "accordingly it is the duty of every
person in Sri Lanka
343
to respect the rights and
freedoms of other." Article 15(2) states that "the exercise and operation of the
fundamental
right declared and recognized by Article 14(1) (a)", namely, freedom
of speech and expression, including publication, "shall
be subject to such
restrictions as may be prescribed by law in the interests of racial and
religious harmony or in relation to
Parliamentary privilege, contempt of court,
defamation or incitement to an offence." Article 15(7) states that the exercise
and operation of the fundamental rights declared and recognized by Article 14
"shall be subject to such restrictions as may
be prescribed by law in the
interests of national security, public order, and the protection of public
health or morality, or for
the purpose of securing due recognition and respect
for the rights and freedoms of others, or of meeting the just requirements of
the general requirements of the general welfare of a democratic society. . ."
Laws restraining speech to ensure that the rights of others are safeguarded and
that people shall exercise their right of free speech
with responsibility are
commonplace. Laws relating to official secrets, defamation, obscenity, contempt
of court, perjury, fraud,
extortion, and licensing of radio and television
broadcasters, readily come to mind. As Justice Sanford, delivering the opinion
of the United States Supreme Court, observed in Gitlow v. New York, (56), cited
in Channa Pieris and Others v. Attorney-General
and Others, (3) at pp. 137-138,
"It is a fundamental principle, long established, that freedom of speech and the
press which
is secured by the Constitution, does not confer an absolute right to
speak or publish without responsibility, whatever one may choose."
See also the
observations of Sharvananda, C. J. in Dissanayake v. Sri Jayawardenapura
University, (57) at pp. 263-264 and at p.
270. Nor is there an absolute right to
receive information as an element of the right of free speech and expression.
Gaskin v.
United Kingdom, (58) at p. 285; Gas kin v. United Kingdom, (59) at p.
411: Leander v. Sweden, (60) at p. 452 and p. 456: Wallen
v. Sweden, (61) at p.
322.
344
The Constitutional provision
relating to free speech, as Meikljohn observed in his work Free Speech and its
Relation to Self Government,
"is not the guardian of unregulated talkativeness."
Geoffrey Robertson, Q. C., and Andrew Nicol, Media Law, 3rd ed., p.
1.,
observed: "By and large, Parliament and the judiciary have taken the view that
free speech is a very good thing so long
as it does not cause trouble. Then it
may become expensive speech - speech . . . with costly court actions, fines,
damages and
occasionally imprisonment. 'Free speech', in fact, means no more
than speech from which illegal utterances are subtracted."
In addition to restrictions prescribed by law, there may be utterances that are
no essential part of any exposure of ideas and are
of such social value as a
step in truth that any benefit that may be derived from them is outweighed by
the social interest in
order and morality. Chaplinsky v. New Hampshire, (62).
Thus, it has been said that resort to rude epithets or personal abuse is
not in
any proper sense communication of information or opinion safeguarded by the
Constitution. Cantwell v. Connecticut, (63).
Likewise, although, as Lord Denning in an address before the High Court
Journalists' Association observed in 1964 (The Times, 03
December 1964),
"justice has no place in darkness and secrecy. When a judge sits on a case, he
himself is on trial ... If
there is any misconduct on his part, any bias or
prejudice, there is a reporter to keep an eye on him,'' and although justice is
not a "cloistered virtue", yet, wanton and irresponsible criticism of democratic
institutions like the judiciary, can
hardly claim to be an use of freedom of
speech that deserves constitutional protection. Thus in Prager and Obserschlick
v. Austria
(46), at p. 20, the European Court of Human Rights stated that it is
incumbent on the press in a way consistent with its duties
and responsibilities
to impart information and ideas on matters of public interest including
"questions concerning the functioning
of the system of justice, an institution
that is essential for any democratic society.
345
The press is one of the means by
which politicians and public opinion can verify that judges are discharging
their heavy responsibilities
in a manner that is in conformity with the aim
which is the basis of the task entrusted to them." The Court added: "Regard
must, however, be had to the special role of the judiciary in society. As the
guarantor of justice, a fundamental value in a law-governed
State, it must enjoy
public confidence if it is to be successful in carrying out its duties. It may
therefore prove necessary to
protect such confidence against destructive attacks
that are essentially unfounded, especially in view of the fact that judges who
have been criticised are subject to a duty of discretion that precludes them
from replying."
Free speech has its limits. In his famous aphorism in Schenck v. United States,
(64) cited with approval in several cases including
Mallawarachchi v.
Seneviratne, (65) Bernard Soysa and Two Others v. The A. G. and Two Others, (66)
at p. 58 and in Channa Pieris,
(3) at p. 138, Justice Holmes said, "The most
stringent protection of free speech would not protect a man in falsely shouting
fire in a theatre and causing panic." Moreover, as Fernando, J. observed in
Bernard Soysa (66) at p. 58, "What may be
said or done in the exercise of the
freedom of speech, expression or peaceful assembly would also depend on the
place." See
also Saranapala v. Solanga Arachchi, (67) at pp. 172-173, on the use
of public places. Moreover, the right to speak must be tailored
to the occasion.
Mahinda Rajapakse v. Kudahetti and Others, (68), at p. 229. See also the
observations of Sharvananda, C. J. in
Joseph Perera v. A. G. (1) at p. 226 - p.
227.
Referring to `other countries', extravagant claims are sometimes made by
journalists. Even the Republic of Iceland, which in Artice
72 of its
Constitution states that "Every person has the right to express his thoughts in
print ... Censorship or other limitations
on the freedom of the press may never
be imposed," (The emphasis is mine,) provides in that very same Article that a
person
expressing his thoughts "may be held
346
responsible for them in courts.
"An author, or if the publication is not in his or her name, then the publisher,
editor, seller
or distributor may, under section 15 of the Right of Publication
Act 1956 of Iceland, be held both criminally and civilly liable.
Moreover, a.
defamatory publication constitutes a criminal offence under the Penal Code of
Iceland. Thorgeirson v. Iceland (18),
at p. 857. Admittedly, in the law relating
to defamation in Iceland, there is no prior restraint on the exercise of free
speech,
Yet, where the governing instrument, be it a Constitution or
international convention, does not prohibit prior restraints on publication,
the
imposition of such restraints, e. g. by injunctions obtained under a prescribed
law, is not per se impermissible. In Sri Lanka,
pre-censorship is not
necessarily unconstitutional and can be justified, if brought within the ambit
of Article 15. Joseph Perera's
case, (1) at p. 229. Dissanayake v. Sri
Jayewardenepura University, (57) at p. 270. However, the dangers inherent in
prior restraints
are such that they call for the most careful scrutiny on the
part of a Court that is called upon to consider the validity of such
restraints.
Wingrove v. U. K., (26) at p. 31. But that is another matter.
As far as prior restraints are concerned, a person may seek judicial review of a
censor's acts. Yet, if a person must pursue his
or her judicial remedy before he
or she may exercise his or her right of freedom of speech, the occasion might
have become history
and later speech may. be futile or pointless. See per
Justice Douglas in Walker v. City of Birmingham, (69). This is especially
so as
far as the press is concerned, for news is a perishable commodity and to delay
its publication, even for a short period,
for instance, while the Competent
Authority makes up his mind under the impugned regulations, may well deprive it
of all its value
and interest. Cf. The Observer and the Guardian v. U. K., (15)
at p. 191; The Sunday Times v. U. K., (16) at p. 242. See also Markt
Intern
Verlag and Beemann v. Germany (70) at p. 175. On the other hand if prior
restraint was not possible, irreparable harm could
be caused in certain
instances. As Justice Douglas observed in Dennis v. United
347
States, (71) see also Channa
Pieris, (3) at pp. 47-48: "There comes a time when even free speech loses its
constitutional immunity.
. . When conditions are so critical that there will be
no time to avoid the evil that the speech threatens, it is time to cry a
halt.
Otherwise free speech which is the strength of the nation will be the cause of
its destruction."
In Abrams v. United States, (52) even Holmes J., despite his off-quoted words in
support of free Speech in the opinion he expressed
in that case, recognized the
danger of waiting before taking action against a person exercising the right of
free speech, although
he did stress the need to limit restraint. He said: "I
think that we should be eternally vigilant against attempts to check
the
expression of opinions we loathe and believe to be fraught with death, unless
they so imminently threaten immediate interference
with the lawful and pressing
purposes of the law that an immediate check is required to save the country.
[Only] the emergency
that makes it immediately dangerous to leave the correction
of evil counsels to time warrants making any exception to the sweeping
command,
Congress shall make no law abridging the freedom of speech."
THE RELEVANCE OF OTHER LAW, INCLUDING DECISIONS OF OTHER COURTS AND TRIBUNALS
Learned Counsel for the petitioner, relied on dicta in the opinions of the
United States Supreme Court in Schenck v. U. S., (51);
Abrams v. U. S., (52)
Gitlow v. New York, (47), New York Times Company v. U. S., and United States v.
The Washington Post Company
et al., (72), usually referred to as New York Times
v. U. S., and particularly on the decisions of the European Court of Human
Rights in The Observer and Guardian v. U. K., (15) and The Sunday Times v. U. K.
(No. 2) (16), in submitting that the conditions
for the imposition of
restrictions stated in Article 15(7) had not been satisfied in the making of the
impugned regulations and
that such regulations were therefore unconstitutional.
348
The Additional Solicitor-General
submitted that the dicta in the American opinions were unhelpful, since the
First Amendment of
the American Constitution did not provide for restrictions
and that the restrictions had been judge-made. On the other hand, he
submitted,
the restrictions in the Sri Lanka Constitution are to be found in the
Constitution itself, as it was the case with the
Indian Constitution, which
provided for restrictions in Article 19(2).
The relevant words of Article 19 of the Indian Constitution are as follows:
"(1) All citizens shall have the right (a) to freedom of speech and expression
... (2) Nothing in sub-clause (a) of Clause
(1) shall affect the operation of
any existing law, or prevent the State from making any law, in so far as such
law imposes reasonable
restrictions on the exercise of the right conferred by
the said sub-clause in the interests of the sovereignty and integrity of
India,
the security of the State, friendly relations with foreign States, public order,
decency or morality, or in relation to
contempt of court, defamation or
incitement to an offence."
The learned Additional Solicitor General cited H. M. Seervai who, in
Constitutional Law of India, 4th Ed., p. 710, drew attention
to the warning
given by the Indian Supreme Court in Travancore-cochin v. Bombay Co. Ltd., (73)
at p. 1120, and in Bombay v. R.
M. D. Chamarabagawalla, (74) at p. 918, about
the use of American decisions, and stated as follows:
"In Express Newspapers (Private) Ltd. v. Union, (75) [pp. 121-122), Bhagwati J.
said that there was a paucity of authority
in India on the nature, scope and
extent of the fundamental right to the freedom of speech and expression and he
added: ".
. . the fundamental right to the freedom of speech and expression
enshrined in . . . our Constitution is based on the provisions
in Amendment I of
the Constitution of the United States ... and it would be therefore legitimate
and
349
proper to refer to those
decisions of the U. S. Supreme Court to appreciate the true nature, scope and
extent of this right in spite
of the warning administered by this Court against
the use of American and other cases."
It is submitted that the provisions of the two Constitutions as to freedom of
speech and expression are essentially different, the
difference being
accentuated by provisions in our Constitution for preventive detention which
have no counterpart in the U. S.
Constitution. The First Amendment enacts an
absolute prohibition, so that a heavy burden lies on anyone transgressing it to
justify
such a transgression. Again, since the Amendment contains no exceptions,
it is not surprising that exceptions have had to be evolved
by judicial
decisions which have limited the scope of such exceptions with increasing
stringency. The position in India is different.
The right to the freedom of
speech and expression, and the limitations on that right are contained in
Article 19(1) (a) read with
sub-Art. (2). Laws which fall under sub-Art. (2) are
expressly permitted by our Constitution and the problem in India is to determine
whether an impugned law falls within Article 19(2), and that is essentially a
problem of construction. No doubt Article 19(2) authorises
the imposition of
"reasonable restrictions", and in the end, the question of reasonableness is a
question for the Court
to decide. However, a law made in respect of the matters
referred to in Article 19(2) must prima facie be presumed to be constitutionally
valid and due weight must be given to the legislative judgment on the question
of reasonableness, though that judgment is subject
to judicial review. It is
difficult, if not impossible, to read into the words "reasonable restrictions"
the test of
"clear and present danger" evolved by the U. S. Supreme Court in
dealing with the freedom of speech and the press. The
difference between the
First Amendment and Article 19(1)(a) was noted by Douglas J. in Kingsley
[International Pictures] Corporation
v. Regents of the University of New York,
(76). In holding that all pre-censorship of cinema films was constitutionally
void, he
said: "If we had a provision in our Constitution for -reasonable"
350
regulation of the press, such as
India has included in hers, there would be room for argument that censorship in
the interest of
morality would be permissible."
The above submission is reinforced by the fact that preventive detention for
reasons connected with the security of a State, the
maintenance of public order
and the maintenance of supplies and services essential to the community is a
subject of concurrent
legislative power ... and Article 22(3) ... provides
safeguards of a very limited nature in respect of such detention. . ."
Admittedly, no restrictions on the exercise of the freedom of speech were
specified in the First Amendment. However, the U. S. Supreme
Court, from the now
famous "footnote 4" of the opinion of Chief Justice Stone in United States v.
Carotene Products Co.,
(77) through Brandenberg v. Ohio, (78), and Hess v.
Indiana, (79) has interpreted the First Amendment in numerous cases and evolved
guidelines, on the one hand, to protect free speech, and, on the other, to
ensure the safety of the State and protect other interests.
Admittedly, due
regard must be had to the fact that an inquiry as to the exercise of the
permissible restrictions under the law
of Sri Lanka involves essentially a
matter of construction by our own courts. Nevertheless, although we are not
bound by the opinions
of the U. S. Supreme Court, yet in the interpretation of
our own Constitutional provisions, especially those that impinge and impact
on
the value of free speech in a democratic State, and concepts relating to matters
expressly referred to in our own Constitution,
e. g. "national security",
"public order", the protection of public health or morality", "securing
due
recognition for the rights and freedoms of others", and "meeting the just
requirements and the general welfare of
a democratic society", some of the
opinions expressed by the U. S. Supreme Court are of great usefulness and of
persuasive
authority, for they are concepts essentially developed over many
years by the U. S. Supreme Court, although more recently, and not
less
importantly, by other domestic courts,
351
including the Supreme Courts of
Sri Lanka and India, and. by international bodies like the European Commission
for Human Rights
and Courts like the European Court for Human Rights. Divergent
approaches must be expected, and we should proceed with caution,
although, in my
view, that is not a good ground for looking at one's own Constitution wearing
blinkers.
Jeremy McBride, Widening Case Law Horizons, Vol. I No. 4, Interights Bulletin,
1986, at pp. 8 - 10, dealt with the question of the
use of precedents from other
systems in the interpretation of international instruments. However, his
observations with regard
to interpretation deserve repetition even with regard
to the interpretation of Constitutional provisions and domestic legislation.
McBride said,
"Differences of this kind are not necessarily undesirable or impermissible even
though the treaties involved -seek to protect
many of the same basic rights and
freedoms and subject them to similar restrictions. After all the framework,
language and political
background of the various instruments is not the same.
The universality of human rights is, therefore, out of the question, at least
as
far as the detailed understanding of individual rights and freedoms is
concerned. However, although uniformity in interpretation
may be precluded by
the terms of the treaties themselves, this cannot be true of the major concepts
underlying them since all share
a common acknowledged lineage back to the
Universal Declaration. While therefore the autonomous meaning of each instrument
can
be insisted upon, it does not follow that the case law emanating from one
system should be regarded as irrelevant to another."
I agree that the universality of human rights is "out of the question, at least
as far as the detailed understanding of individual
rights and freedoms is
concerned." Universality is aspirational. However, we might cooperate in the
ongoing effort to make
universality a reality, although we ought to be
352
vigilant in preserving our own
values, despite attempts by specious promises or plain bullying to jetisson
those things we in our
communities hold to be of intrinsic worth. We might, if
we proceed cautiously, derive assistance from the decisions of other Courts
elsewhere, in appropriate cases, the Court being circumspect and attentive to
all the circumstances affecting its decision.
I should like to make reference to some of the Bangalore Principles declared by
Commonwealth Jurists on 26 February 1988, at the
end of a colloquium on The
Domestic Application of Human Rights Norms. Interights Bulletin, Vol. 3, 1988,
No. 1 p. 2.
I must emphatically state that I do not subscribe to any of the other views
stated in the Bangalore Principles.
"2.... international human rights instruments provide important guidance in
cases concerning fundamental rights and freedoms.
3. There is an impressive body of jurisprudence, both international and
national, concerning the interpretation of particular human
rights and freedoms
and their application. This body of jurisprudence is of practical relevance to
judges and lawyers generally.
4. In most countries whose legal systems are based upon the common law,
international conventions are not directly enforceable in
national courts unless
their provisions have been incorporated by legislation into domestic law.
5.However; there is a growing tendency for national courts to have regard to
these international norms for the purpose of deciding
cases where the domestic
law - whether constitutional, statute or common law - is incomplete.
6. While it is desireable for the norms contained in the international human
rights instruments to be still more widely recognized
and applied by national
courts, this
353
process must take into full
account local laws, traditions, circumstances and needs.
7. It is within the proper nature of the judicial process and well-established
judicial functions for national courts to have regard
to international
obligations which a country undertakes - whether or not they have been
incorporated into domestic law - for the
purpose of removing ambiguity or
uncertainly from national constitutions, regulation or common law.
8. However, where national law is clear and inconsistent with the international
obligations of the State concerned, in common law
countries, the national court
is obliged to give effect to national law. In such cases the court should draw
such inconsistency
to the attention of the appropriate authorities since the
supremacy of national law in no way mitigates a breach of an international
legal
obligation which is undertaken by a country.
9. These views are expressed in recognition of the fact that judges and lawyers
have a special contribution to make in the administration
of justice in
fostering universal respect for fundamental human rights and freedoms."
Decisions from elsewhere are, in my view, of most value where the right or
freedom or limiting concept is expressed in broadly similar
terms. Even when a
formulation is different, the omissions, additions and drafting may shed light
on the result to be reached.
To take account of the case law of another system
should, however, never be a back-door attempt to achieve universality at the
expense of the will of States parties to a convention, or the will of Sovereign
Peoples in the case of domestic Constitutions.
Despite his submissions against the usefulness of looking at the opinions of the
U. S. Supreme Court, the learned Additional Solicitor-General
himself placed
reliance on the following decisions of the U. S. Supreme Court: New York
354
Times Company v. United States,
(72); Schenck v. United States, (64); Frohwerk v. United States, (80); United
States v. David Paul
O'Brien, (81); and Kingsley International Pictures
Corporation v. Regents of the University of the State of New York, (76).
Learned Counsel for the respondents submitted that the dicta in two judgments of
the European Court of Human Rights cited by learned
Counsel for the petitioner
were inapplicable, since they were concerned with the interpretation of Article
10 of the European Convention
for the Protection of Human Rights and Fundamental
Freedoms which was not in terms identical with Article 15(2) and Article 15(7)
of the Sri Lanka Constitution.
Article 10 of the European Convention states as follows:
"Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart
information and ideas without
interference by public authority and regardless of frontiers. This Article shall
not prevent States
from requiring the licensing of broadcasting, television or
cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions,
restrictions
or penalties as are prescribed by law and are necessary in a democratic society,
in the interests of national security,
territorial integrity or public safety,
for the prevention of disorder or crime, for the protection of health or morals,
for the
protection of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for maintaining
the
authority and impartiality of the judiciary."
Admittedly, there are differences in the manner of expression, and we should,
therefore, be cautious in applying decisions concerned
with the interpretation
of Article 10 of
355
the European Convention. At the
same time, as we shall see, there is much assistance to be derived from them in
deciding whether
the impugned regulations were in contravention of the
Constitution, for some of the differences, in my view, relate more to form
than
substance.
ALLEGED UNCONSTITUTIONALITY OF THE IMPUGNED REGULATIONS
There was no dispute that the impugned regulation caused an interference with
the petitioner :s ability to receive and impart information,
and therefore, ex
facie, there was a transgression of her freedom of speech and expression
guaranteed by Article 14(1) of the Constitution.
However, the respondents
maintained that the petitioner's rights were not absolute, and that the exercise
and operation of the
petitioner's rights were subject to restrictions imposed in
terms of Article 15(7) of the Constitution, and therefore there was
no violation
of Article 14(1)(a) of the Constitution.
In paragraph 14 of her petition, the petitioner admits that the right of free
speech could be restricted, but submitted that in
the circumstances of this case
the regulations of 6 November 1999 were unconstitutional, having regard to the
provisions of Article
15(7) read with Article 155(2), and should be struck down.
Learned Counsel for the petitioner submitted that the burden of justifying
restrictions imposed under Article 15(7) is heavy. I
find myself in agreement
with him. Seervai, as we have seen, said, "The First Amendment enacts an
absolute prohibition, so
that a heavy burden lies on anyone transgressing it to
justify such transgression." The burden, in my view, continues to be
heavy even
where freedom of speech is expressed in more or less absolute terms, as it is in
Article 14(1)(a), but where specific
provision is made elsewhere for exceptions.
Exceptions must be narrowly and strictly construed for the reason that. freedom
of
speech constitutes one of the
356
essential foundations of a
democratic society which, as we have seen, the Constitution, in no uncertain
terms, declares Sri Lanka
to be.
PRESCRIBED BY LAW
In order to justify the imposition of restrictions on the operation and exercise
of a citizen's freedom of speech, Article 15(7),
like Article 15(2), requires
that such restrictions shall be "prescribed by law". I will be referring to some
of the
decisions of the European Commission of Human Rights, and the European
Court of Human Rights because I consider them to be apposite,
for Article 10(2)
of the European Convention also has the requirement that restrictions must be
"prescribed by law".
It has been held that "prescribed by law" in Article 10(2)
must be given the same interpretation as the phrase "in
accordance with law",
and that accessibility and foreseeability are two of the requirements inherent
in the phrase "prescribed
by law" and relate to the quality of law. Brind and
Others v. United Kingdom, (19) at p. C. D. 81; Hins and Hugenholtz v.
Netherlands, (82) at p. 126; Vereniging Radio 100 et al. v. Netherlands, (51) at
p. C. D. 203.
The impugned "emergency" regulations were made by the President under section 5
of the Public Security Ordinance. Section
5(1), enables the President to make
such regulations as appear to the President "to be necessary or expedient in the
interests
of public security and the preservation of public order and the
suppression of mutiny, riot or civil commotion, or for the maintenance
of
supplies and services essential to the community." Section 5(2)(d) enables the
President to make emergency regulations
that appear to the President to be
"necessary or expedient", inter alia, in the interests of public security,
"amending
any law, for suspending the operation of any law and for applying any
law with or without modification." The phrase "any
law" does not empower the
President in terms of section 5 of the Public Security Ordinance to amend or
suspend a provision
of the Constitution, such as the guarantee
357
under Article 14(1)(a) relating
to freedom of speech, on the ground of public security. This is evident from
Article 155(2). The
power to do so is derived from Article 15(7) of the
Constitution which enables the President to impose restrictions on the operation
and exercise of the fundamental right of freedom of speech by regulations made
under the law relating to public security.
The restrictions complained of were set out in a regulation made by the
President of the Republic under section 5 of the Public
Security Ordinance, Cap.
51 of the Legislative Enactments. The Ordinance was enacted prior to the
Constitution. Article 170 of
the Constitution states that "law" means any Act of
Parliament, and any law enacted by any legislature at any time prior
to the
commencement of the Constitution and includes an Order in Council.- Article
168(1) of the Constitution states that "Unless
Parliament otherwise provides,
all written laws and unwritten laws in force immediately before the commencement
of the Constitution,
shall, mutatis mutandis, and except as otherwise expressly
provided in the Constitution, continue in force." Article 155 of
the
Constitution states that 'The Public Security Ordinance as amended and in force,
immediately prior to the commencement of the
Constitution shall be deemed to be
a law enacted by Parliament." Article 155 further provides that "The power to
make
emergency regulations under the Public Security Ordinance or the law for
the time being in force relating to public security shall
include the power to
make regulations having the legal effect of over-riding amending or suspending
the operation of the provisions
of any law except the provisions of the
Constitution." Freedom of speech is protected by Article 14(1) (a) of the
Constitution.
However, the Constitution provides in Article 15(7) that the
exercise and operation of that Article "shall be subject to such
restrictions as
may be prescribed by law in the interests of national security. . ." Article
15(7) states that "For the
purposes of this paragraph "law" includes regulations
made under the law for the time being relating to public security."
358
Ex facie, the restrictions
complained of which were contained in regulations made under section 5 of the
Public Security Ordinance,
had a basis in law and were in accordance with law.
The petititoner, however, maintained that the impugned regulations were
imprecise and vague. She stated in her petition that "any
law which confers
unguided and unfettered discretion without narrow objectives and definite
standards to guide such authority is
unconstitutional." She added that "it is of
fundamental importance that such a law should not be incomplete and should
contain within itself all the vital and necessary components relating to its
operation, including precise restrictions that it
seeks to impose." The impugned
regulations, the petitioner stated, were "not subject to any rational guidelines
and hence
permits the authorities to apply the said regulations arbitrarily and
discriminately". There was, she said, a discrepancy between
the Sinhala and
English versions, "thus facilitating an arbitrary and incoherent application of
the said regulations."
In The Sunday Times v. The United Kingdom, (10) at p. 271, (see also Gay News v.
United Kingdom, (83) at pp. 127-128; G v. Germany,
(84) at p. 503; Markt Intern
and Beerman v. Germany, (85) at p. 231; Times Newspapers Ltd and Neil v. United
Kingdom, (86) at p.
C. D. 55: Hinz and Hugenholtz v. Netherlands, (82) at p.
(26), the European Court of Human Rights stated as follows:
"In the Court's opinion, the following are two of the requirements that flow
from the expression 'prescribed by law'. First,
the law must be accesible: the
citizen must be able to have an indication in the circumstances of the legal
rules applicable to
a given case. Secondly, a norm cannot be regarded as a 'law
unless it is formulated with sufficient precision to enable the citizen
to
regulate his conduct: he must be able - if need be with appropriate advice - to
foresee, to a degree that is reasonable in the
circumstances,
359
the consequences which a given
action may entail. Those consequences need not be foreseeable with absolute
certainty: experience
shows this to be unattainable. Again, whilst certainty is
highly desirable, it may bring in its train excessive rigidity and the
law must
be able to keep pace with changing circumstances. Accordingly, many laws are
inevitably couched in terms which, to a greater
or lesser extent, are vague and
whose interpretation and application are questions of practice."
The European Court of Human Rights has had occasion to recognize the difficulty
or impossibility of attaining absolute precision
in the framing of laws,
especially in spheres in which the situation governed by the law in question is
constantly changing. Barthold
v. Germany, (11) at p. 399; Markt Intern and
Beerman v. Germany, (70) at p. 173; Muller v. Switzerland (14) at p. 226.
Indeed,
in certain areas flexibility might be desirable. Goodwin v. United
Kingdom, (24) at p. 140. The provisions in question should afford
sufficient
protection against arbitrariness and make it possible for the persons concerned
to foresee the consequences of their
actions. However, the level of precision
depends to a considerable degree on the content of the instrument in issue, the
field
it is designed to cover and the number and status of those to whom it is
addressed. Groppera Radio AG v. Switzerland, (87) at p.
341; Vereinigung
Demokratischer Soldaten Osterreichs and Gubi v. Austria, (50) at p. 81 .
It appears from the words of the regulations that the impugned regulations were
primarily intended for editors, publishers of newspapers
and persons authorised
to establish and operate Broadcasting or Television Stations. It could be
expected that such persons, if
necessary, with the help of legal advisers, could
inform themselves about the regulations applicable to them. The regulations
imposed
restrictions on the publication and transmission of certain specified
sensitive information relating to what the petitioner described
as "the
360
ethnic conflict and the war ...
in the North and East." The need for regulations of the sort in question to be
framed without
excessive rigidity to take account of changing circumstances is,
in my view, inevitable. Indeed, as experience has shown, it has
been necessary
to amend even broadly framed regulations, such as the Emergency (Prohibition on
Publication and Transmission of
Sensitive Military Information) Regulations,
from time to time to take account of changing circumstances. The regulations in
question
were not so vague as to exclude any predicability, if need be with
appropriate advice, as to what act on the petitioners part might
give rise to
the adverse consequences referred to in paragraphs 3 and 5 of the Emergency
(Prohibition on Publication of Sensitive
Military Information) Regulations 1 of
1996. Cf. Arrow smith v. United Kingdom, (88) at p. 231. Moreover, the impugned
regulations
were accessible, for they were published in the Government Gazette
No: 1104/28 of 06 November, 1999, and, as the petitioner states,
they were
"announced publicly in the government media." She submitted a newspaper article
in support of the averment
that the law had received publicity in the press.
The petitioner complained that the authority was clothed with wide powers of
discretion by reason of the formulation of the regulation
and by differences in
the English and Sinhala versions. The broadly worded nature of the impugned
regulations and the differences
in the Sinhala and English versions might have
caused difficulties in interpretation. However, the mere fact that a provision
may
give rise to problems of interpretation does not mean it is so vague and
imprecise as to lack the quality of 'law'. Hodgson, Woolf
Productions and
National Union of Journalists and Channel Four Television v. United Kingdom,
(12) at p. 508. Nor is the quality
of law necessarily diminished by the
conferment of discretion. A law conferring a discretion is not in itself
inconsistent with
the requirement of foreseeability, provided that the scope of
the discretion and the manner of its exercise
361
are indicated with sufficient
clarity, having regard to the legitimate aim in question, so as to give the
individual adequate protection
against arbitrary interference. Brind and Others
v. United Kingdom, (19) at p. C. D. 81; Tolstoy Miloslavsky v. United Kingdom,
(89) at p. 468, Hins and HugenhoLtz v. Netherlands, (82) at p. C. D. 126;
Goodwin v. U. K. (24) at p. 140; Vereniging Radio 100
et al. v. Netherlands,
(51) at p. C. D. 203; Wingrove v. U. K. (26) at pp. 26-27.
Against the foregoing background, I hold that the impugned restrictions had a
basis in law, and that as far as the quality of law
was concerned, it was
accessible to the petitioner and formulated with sufficient precision to enable
her - if need be, with appropriate
legal advice - to foresee, to a degree that
was reasonable in the circumstances, the consequences which a given action may
entail.
Admittedly, the first respondent, the 'Competent Authority' was given a
wide discretion; yet, as we shall see later in considering
the question of
necessity, the scope of the discretion and the manner of its exercise were
indicated with sufficient clarity, having
regard to the purported aim in
question, to make the decisions of the Competent Authority reviewable and to
give her adequate protection
against arbitrary interference. I therefore
conclude that the impugned restrictions were "prescribed by law" for the
purposes of Article 15(7) of the Constitution.
LEGITIMATE AIM
In addition to being "prescribed by law'", restrictions on the Constitutional
right of freedom of speech, in order to
be valid, must have a legitimate aim
recognized by the Constitution. No doubt after balancing interests, albeit at a
very general,
wholesale level, the makers of our Constitution have in Article 15
made a threshold categorization, inter alia, of the varieties
of speech that are
not protected absolutely, but which may be limited by law. Channa Pieris, (3),
at p. 140. Speech and expression
concerning "the interests of national security"
is one of them. (Article 15(7)).
362
The petitioner suggested that the
aim of the President in making the impugned regulations was not the interests of
national security.
In paragraphs 15, 16, 17 of her affidavit, she stated that,
although censorship had been relaxed at a certain time and "media
personnel were
also taken on conducted tours of the Northern and Eastern provinces on the
initiative of the 1st Respondent on every
occasion that the Government claimed
to have won a significant military victory in those areas", yet the impugned
regulations
"tightening the censorship" were made "following renewed fighting in
the Wanni area leading to heavy loss of life,
loss of territorial gains
previously held by the Army and State military equipment." The petitioner's
submission was that
the aim of the impugned regulations was to prohibit the
publication of information that was embarrassing to the Government, rather
than
to protect national security. As such, the regulations offended "the established
principle in international law that
restrictions on freedom of expression based
on national security interests would not be legitimate if their genuine purpose
or
demonstrable effect is to protect interests unrelated to national security,
such as to protect a Government from embarrassment or
wrongdoing or to entrench
a particular ideology." (Vide paragraph 24 of the petitioner's affidavit.) In
paragraph 10 of her
petition, the petitioner stated that "it is of extreme
importance that the pretext of national security is not used to place
unjustified restrictions on the exercise of these freedoms."
Learned counsel for the petitioner cited the following dicta from New York Times
v. U. S. (72): ". . . the Founding fathers
gave the free press the protection it
must have to fulfill its essential role in our democracy. The press was to serve
the governed,
not the governors ... only a free and unrestrained press can
effectively expose deception in government." (Justice Black).
"The dominant
purpose of the 1st Amendment was to prohibit the widespread practice of
governmental suppression of embarrassing
information . . . secrecy in government
is fundamentally anti democratic, perpetuating
363
bureaucratic errors. Open debate
and discussion of public issues are vital to our national security." (Justice
Douglas)
Justices Black and Douglas argued that no system of prior restraint was ever
justified. Yet, the fragmented Court, which decided
the case in nine separate
opinions by a six to three majority, agreed on only two general themes - any
system of prior restraint
of expression bears a heavy presumption against its
constitutional validity, and the Government carries a "heavy burden"
to justify
enforcing any system of prior restraint. As we have seen, prior restraint is not
per se impermissible. Even Near u.
Minnesota, (90), which firmly embedded the
prior restraint doctrine in American jurisprudence, did recognize three
"exceptional
cases" justifying prior restraint.
The Times case was considered by this Court in Wickremasinghe u. Edmund
Jayasinghe, (91). In that case, the petitioner, the Chief
Editor and publisher
of a newspaper, alleged that his fundamental rights guaranteed by Articles 12
and 14(1) (1) had been infringed
by the application of the Emergency
(Restriction of Publication of and Transmission of Sensitive Military
Information) Regulation
No. 1 of 1995. I have already reproduced those
regulations in my judgment. Justice Kulatunga (with whom G. P. S. de Silva, C.
J.,
and Ramanathan, J. agreed) at pp. 307-308 said that the New York Times case:
". . . involved a restraint on newspapers against a publication which appears to
relate to a war situation. . . That case is
clearly distinguishable for the
reason that the policy under discussion there was the involvement of the United
States of America
in the affairs of a foreign state.
In the instant case, it cannot be said that the occasion and manner of
pre-censorship is arbitrary. The Government is faced with
a serious civil war.
The matters in respect of which censorship is imposed are specified. The
restriction is
364
against the publication of
matters which could be classified as `sensitive information'. All such matters
relate to the prosecution
of the war. Hence, the impugned censorship cannot be
described as a blanket censorship; clearer guidelines may not be demanded in
the
present circumstances."
Learned counsel for the petitioner was critical of the judgment in
Wickremasinghe's case. He said, "The Court was clearly influenced
by the
assumption that there was a 'war situation' and there must be some curtailment
of the freedom to publish ... Kulatunga,
J. only saw that the situation was
different without considering the underlying reasons which consequently apply
even when a "Government
is faced with a serious. civil war", as the learned
judge put it. It is respectfully submitted that pre-censorship by the Emergency
Regulations was not properly addressed for over-breadth and vagueness by the
intrusion of "serious civil war" into the
picture."
I am unable to agree with the submissions of learned counsel for the petitioner.
I shall later in my judgment deal with the question
of over-breadth, but for the
present I should like to observe that the question of over-breadth was not
overlooked by Kulatunga,
J. At p. 304, His Lordship did say that "The Court will
no doubt consider whether the regulations are bad for over-breadth."
His
Lordship also, at p. 308, rejected the demand for "clearer guidelines" and
therefore had addressed his mind to the
question of "vagueness". I have in this
judgment dealt with the question of vagueness at some length, and hold that the
authorities amply justify the conclusion reached by Kulatunga, J. Yes, indeed
Kulatunga, J. was clearly influenced not only by
"the assumption" that there was
a "war situation" but, as acknowledged by the petitioner herself, that there
was
indeed such a situation. It was a matter of central importance.
The importance of freedom of speech in a democracy cannot be overstated.
Nevertheless, there are occasions where that importance
must give way to other
considerations.
365
National security is one such
consideration. Notwithstanding the dicta of Justices Black and Douglas in the
New York Times case
(72), cited by learned counsel for the petitioner, there is,
as we shall see, abundant judicial support in the opinions of the United
States
Supreme Court and internationally for the proposition that when a nation's
security and integrity is at stake, all else,
including the cherished,
constitutionally assured, freedom of speech must take second place. We must not
lose sight of priorities.
Indeed, at paragraph 04 of the written submissions of
learned counsel for the petitioner, citing Donna Gomien, David Harris and
Leo
Zwak, Law and Practice of the European Convention on Human Rights and the
European Social Charter, it is quite properly acknowledged
that international
human rights jurisprudence permits "derogations from human/ fundamental rights
in times of war or public
emergency." This is the case not only where national
constitutions or international conventions permit such derogations, but
even in
countries, such as the United States, where no express constitutional. provision
is made for the imposition of restrictions
in times of war or national
emergency. E. g. see Schenck v. United States, (64); Frohwerk v. United States,
(80); Debs v. United
States, (92).
It has never been doubted that when a government is in the throes of a struggle
for the very existence of the state, the security
of the community may be
protected. Justice Brandeis observed in Whitney v. California (8), (followed in
Ekanayake v. Herath Banda,
(93), Amaratunga v. Sirimal, (94) and Channa Pieris
v. Attorney-General, (3) at p. (138), ". . . But although the rights of
free
speech and assembly are fundamental, they are not absolute. Their exercise is
subject to restriction, if the particular restriction
proposed is required in
order to protect the state from destruction or from serious
366
injury, political, economic or
moral." In Dennis v. United States, (71), Chief Justice Vinson said, ". . .
Overthrow of
the government by force and violence is certainly a substantial
enough interest for the government to limit speech". In Schenck
u. United
States, (64), Holmes, J. - one of the most eloquent and enthusiastic advocates
of free speech - said, "When a nation
is at war many things that may be said in
times of peace are such a hindrance to its effort that their utterance will not
be endured
so long as men fight and that no Court could regard them as protected
by any Constitutional right."
The petitioner furnished the Court with a copy of a document entitled "The
Johannesburg Principles on National Security, Freedom
of Expression and Access
to Information," and placed great reliance on that document. According to the
"Introduction"
to that document, the "Principles were adopted on 1st October
1995 by a group of experts in international law, national security,
and human
rights convened by Article 19, the International Centre Against Censorship, in
collaboration with the Centre for Applied
Legal Studies of the University of the
Witwatersrand, in Johannesburg." The preamble to the document, inter alia,
states that
the 'principles' are meant to "discourage governments from using the
pretext of national security, to place unjustified restrictions
on the exercise
of "freedom of speech and expression". While recognizing that restrictions may
be placed in the interests
of national security, the 'principles' state that
they should be prescribed by law, and have "the genuine purpose and demonstrable
effect of protecting" "a country's existence or its territorial integrity
against the use or threat of force, or its
capacity to respond to the use or
threat of force". A restriction sought to be justified on the ground of national
security
is not legitimate if its genuine purpose or demonstrable effect is to
protect interests unrelated to national security, including
for example, to
protect
367
a government from embarrassment
or exposure of wrongdoing, or to conceal information about the functioning of
its public institutions,
or to entrench a particular ideology or to suppress
industrial unrest."
In paragraphs 28 and 29 of the petition, it is stated that any citizen or
political party was entitled to seek, receive and impart
information on the
"policy of the Government on the ethnic conflict and the war and has the
concomitant right to seek, receive
and impart information on the military
strategies and drawbacks in the conduct of the military operations in the North
and East."
In paragraph 29, the petitioner states that "as a social/human rights
activist concerned about the ethnic conflict and the
war in the North and East,
she has actively taken part in debates to resolve the said conflict and hence
she is required to know
the correct position with regard to the long drawn out
war between the Armed Forces and the LTTE . . ."
There is an acknowledgment by the petitioner of the existence of a violent
conflict in the North and East between the Armed Forces
and the LTTE. The
regulations are called the "Emergency (Prohibition on Publication and
Transmission of Sensitive Military
Information) regulations." The text of the
impugned regulations makes it abundantly clear that the material that has to be
published with the approval of the Competent Authority relates to matters
pertaining to the Forces engaged in the Northern and
Eastern provinces and their
operations in those areas. Admittedly, the impugned regulation followed soon
after what the petitioner
described as "renewed fighting in the Wanni area
leading to heavy loss of life, loss of territorial gains previously held by
the
Army and State military equipment." The petitioner submitted newspaper reports
of what was described as "a humiliating
368
debacle", and suggesting that it
was caused, by the negligence of "the top brass." The petitioner pointed to the
fact that, whereas the earlier regulation contained the words "or any statement
pertaining to the official conduct or the performance
of the Head or any member
of any of the Armed Forces or the Police Force", the impugned regulations had
the words, "or
any statement pertaining to the official conduct, morale or the
performance of the Head or of any member of the Armed Forces or
the Police Force
or of any person authorised by the Commander - in - Chief of the Armed Forces
for the rendering of assistance
in the preservation of national security." The
reasons for the changes were explained by the Competent Authority in a statement
published in the press and submitted to us by the petitioner. He said that "some
media institutions distorted news relating
to the war in the North-East (sic.)
which has led to pain of mind to the soldiers and their parents and the morale
of the troops."
The petitioner does not dispute that. Her irrelevant response
was that the Competent Authority failed to identify the "irresponsible
media
institutions."
The petitioner, in my view, has failed to show, in terms of Principle 2(b) of
the "Johannesburg Principles" that "the
genuine purpose or demonstrable effect"
of the regulation was "to protect (the) government from embarrassment or
exposure
or wrongdoing". Nor has she shown that the protection of national
security was a "pretext". It was observed in United
States v. O'Brien, (81) at
para. 15, that
"It is a familiar principle of constitutional law that this Court will not
strike down an otherwise constitutional statute
on the basis of an alleged
illicit legislative motive. As the Court long ago stated: "The decisions of this
Court
369
from the beginning lend no
support whatever to the assumption that the judiciary may restrain the exercise
of lawful power on the
assumption that a wrongful purpose or motive has caused
the power to be exerted. "McCray a. United States, (95). This fundamental
principle of constitutional adjudication was reaffirmed and the many cases were
collected for the Court in State of Arizona u.
State of California, 283 U. S.
423, 455, 51 S. Ct. 522, 526, 75 L. Ed. 1154 (1931)."
NECESSARY IN A DEMOCRATIC STATE
Mr. Goonesekera submitted that the regulation had to be shown to be necessary in
a democratic state. On the other hand, Mr. Marsoof
argued that, although the
phrase "necessary in a democratic state" was found in Article 10(2) of the
European Convention,
it was not a requirement stipulated in Article 15 of our
Constitution, and therefore ought not to be read into the Constitution.
On this matter, I find the submission of the Additional Solicitor-General to be
unpersuasive. Admittedly, the phrase "necessary
in a democratic society" is not
to be found in Article 15 of the Constitution. Nevertheless the ideas
encapsulated in that
phrase, and therefore the opinions of the European
Commission and the judgments of the European Court in construing that phrase,
are relevant as sustaining the logic of our own Constitution with regard to the
imposition of restrictions on the operation and
exercise of the fundamental
right of freedom of speech and expression guaranteed by Article 14(1)(a).
Sri Lanka, as we have seen is a representative democracy in which freedom of
speech and expression is a cornerstone.
370
That is the defining context for
the interpretation of restrictions imposed by Article 15 on the fundamental
right of freedom of
speech guaranteed to citizens in our representative
democracy by Article 14(1)(a). Cf. per Fernando J., in Karunathilaka and Another
v. Dayananda Dissanayake, Commissioner of Elections and Others, (36) at p. 173;
Re Compulsory membership of journalists' association,
(2) at p. 174.
In Malalgoda v. A. G. & Another, (97) at pp. 784-785 Soza, J., having referred
to the observations of Seervai on the differences
between the Indian and
American Constitutions, and noting that the 'clear and present danger' test had
been rejected by the Indian
Supreme Court, since the Indian Constitution had
provided instead for the test of 'reasonableness', went on to state that "the
limitations to the right of freedom of speech are in Sri Lanka prescribed in
more absolute terms than in India. In Sri Lanka, the
operation and exercise of
the right to freedom of speech are made subject to restrictions of law not
qualified by any test of reasonableness.
Neither the validity nor the
reasonableness of the law imposing restrictions is open to question unlike in
America or India. This
is not to say of course that the Court should not be
reasonable in applying the law imposing restrictions. Freedom of speech in
Sri
Lanka therefore is subject to such restrictions as the law may impose under the
heads mentioned in Article 15(2)." In
that case, the petitioner had complained
that the Police had seized a book published by him. It was defamatory, but the
petitioner
contended that his fundamental right of freedom of speech and
expression had been violated. The court held that "so far as
concerns the case
before us freedom of publication means that the applicant may publish whatever
will not expose him to a prosecution
or a civil action for defamation. In
exercising his fundamental
371
right of freedom of publication
he cannot shake off the constraints imposed by law. The freedom of publication
does not include
the licence to defame and vilify others."
Article 28(e) states that the exercise and enjoyment of rights and freedoms is
inseparable from the performance of duties and obligations,
and accordingly it
is the duty of every person in Sri Lanka to respect the rights and freedoms of
others. Article 15(2) states
that the exercise and operation of the fundamental
right of freedom of speech and expression declared and recognized by Article
14(1) (a) shall be subject to such restrictions as may be prescribed by law,
inter alia, in relation to defamation. In terms of
Article 15(7) the exercise
and operation of the right of freedom of speech is "subject to such restrictions
as may be prescribed
by law ... for the purpose of securing due recognition and
respect for the rights and freedoms of others." However, with great
respect,
"subject to" not only means subject to a restriction set out in Articles 15(2)
and 15(7) but includes, in my
view, an assessment of a restriction purported to
be imposed under Article 15(2) or 15(7) from the point of view of necessity,
unless the law is an "existing law" within the meaning of Article 16(1) of the
Constitution. In the case of defamation,
this would require an examination of
the law imposing the interference with a person's freedom of speech, if it is
not an "existing
law", as well as the application of the law in the particular
circumstances of a case. Cf. Lingens and Leitgens v. Austria,
(98) at pp.
393-394. In some cases, it may be found that the law of defamation or conviction
for defamation or some measure taken
to protect the reputation of others may be
disproportionate to the aim pursued, and therefore an unnecessary interference
with
freedom of speech. E. g. see App. No. 11508/85 v. Denmark, (13);
Thorgeirson v. Iceland,
372
(18); Oberschlick v. Austria,
(22); Tolstoy Miloslavsky v. U. K., (89); Cf. Castells v. Spain, (17) at p. 478
where the prosecution
was for insulting the government. In others, it may be
found that the measures taken were necessary to protect the reputations of
others. E. g. see App. No. 12230/86 v. Germany, (99); Barfod v. Denmark (100);
Praeger and Oberschlick v. Austria, (46). However,
in deciding on the
constitutional validity of a restriction imposed on freedom of expression,
otherwise than by an "existing
law", there must be an examination of its need.
"Necessity" is inherent in Article 15(7) read with Article 155(2). The Supreme
Court has already recognized the concept
of necessity in deciding whether
regulations restricting freedom of speech and expression are Constitutionally
valid. In Joseph
Perera v. The Attorney General and Others, (1), at pp. 216-217
Sharvananda, C. J. said:
"The Regulation to be valid must satisfy the objective test. Though the Court
may give due weight to the opinion of the President
that the regulation is
necessary or expedient in the interests of public security and order, it is
competent to the Court to question
the necessity of the Emergency Regulation and
whether there is a proximate or rational nexus between the restriction imposed
on
a citizen's fundamental right by emergency regulation and the object sought
to be achieved by the regulation. If the Court does
not find any such nexus or
finds the activities which are not pernicious have been included within the
sweep of the restriction,
the Court is not barred from declaring such regulation
void as infringing Article 155(2) of the Constitution."
It was held that the impugned Emergency Regulation in that case, requiring
police permission for publication,
373
imposed a form of prior restraint
abridging the freedom of expression that was invalid and incapable of forming
the basis of any
law. See especially the observations of Sharvananda, C. J. at
pp. 216-217. The Court's reasoning was that the power to make emergency
regulations did not include the power to over-ride, amend or suspend the
operation of the provisions of the Constitution, except
in accordance with the
provisions of the Constitution. Constitutionally valid restrictions on the
fundamental right of freedom
of speech and expression in the interests of
national security and public order could only be imposed in terms of Article
15(7).
Since, in its view, there was no proximate or rational nexus between the
restriction imposed and the object sought to be achieved
by the regulation
namely, the interests of national security and public order, and since the
regulation conferred an unfettered
discretion on a public authority in enforcing
the regulation, the regulation was, as the Chief Justice said at p. 230,
"unconstitutionally
over-broad". The regulation was held to be unconstitutional,
since it violated Article 155(2) of the Constitution which prohibited
the
amendment or suspension of the operation of Article 14(1)(a) except in
accordance with the provisions of Article 15(7).
In Wickramasinghe v. Edmund Jayasinghe, (91), Kulatunga, J. at p. 304, after
stating that regulations made by the President under
the Public Security
Ordinance will not be struck down by the Court "unless there are good grounds
for doing so", added:
"The Court will no doubt consider whether the regulations
are bad for over-breadth and impinge upon fundamental rights."
In The Sunday Times v. U. K., (10) the European Court of Human Rights observed
at p. 268 that the applicants complained of continuing
restraints "as a result
of over-breadth
374
and lack of precision of the law
of contempt of court. In Open Door Counseling and Dublin Well Woman v. Ireland,
(10) at p. 266,
that Court, in considering the question of proportionality, held
that "the sweeping nature of the restriction" made it
"over-broad and
disproportionate."
In Wickremabandu v. Herath and Others, (101) at p. 358, H. A. G. de Silva, J.
(Fernando J. agreeing) said: "Article 15(7) permits,
inter alia, restrictions in
the interests of national security and public order. The learned
Attorney-General contends that the
Court could not interpolate "reasonable" into
that provision, and hence could not inquire into the reasonableness of a
restriction. It is not a matter of interpolation, but of interpretation: can we
assume that the power conferred by the Constitution
was intended to be used
unreasonably, by imposing the reasonable restrictions on fundamental rights? The
State may not have any
burden of establishing the reasonableness of the
restrictions placed by law or Emergency Regulations, but if the Court is
satisfied
that the restrictions are clearly unreasonable, they cannot be
regarded as being within the intended scope of the power under Article
15(7)."
It has been held that ''necessary", while not synonymous with `indispensable',
implies a `pressing social need', Re Compulsory
membership of journalists'
association, (2) at p. 176; Lingens v. Austria, (47) at p. 418; Leander v.
Sweden, (60) at p. 452; Hodgson
and Others v. U. K., (12) at p. 508; Markt
Intern and Beerman v. Germany, (85) at p. 232; Muller v. Switzerland, (14) at p.
227,
The Sunday Times v. U. K. (No. 2), (16) at p. 234; Castells v. Spain, (17)
at p. 461; Jersild v. Denmark, (20) at p. 14, Hins and
Hugenholtz v.
Netherlands, (82) at p. C. D. 126; Goodwin v. U. K., (24) at p. 143; Bowman v.
U. K. (103) at p. C. D. 17; and, therefore,
for a restriction
375
to be 'necessary it is not enough
to show that a restriction was 'useful' 'reasonable' or 'desirable'. The Sunday
limes v. U. K.,
(1979 (10) at p. 275; G. v. Germany, (84) at p. 504; Barthold v.
Germany, (11) at p. 402. Necessity must be convincingly established.
Thorgeirson
v. Iceland (18) at p. 865; Brind and Others v. U. K., (19) at p. C. D. 82;
Autronic AG v. Switzerland, (104) at p.
503; Weber v. Switzerland, (105) at p.
523; Hins and Hugenholtz v. Netherlands, (82) at p. C. D. 126, Goodwin v. U. K.,
(103) at
p. C. D. 17; Adams and Benn v. U. K. (25) at p. C. D. 164.
The 'necessity' requirement involves a review of whether the restrictions are
proportionate to the legitimate aim pursued. G. v.
Germany, (84) at p. 504;
Leander v. Sweden, (60) at p. 452; Rohr v. Switzerland, (102); The Sunday limes
v. U. K. (No. 2),(16)
at 234. Proportionality is, in my view, inherent in
Article 15(7) read with Article 155(2) of the Constitution. Cf. Joseph Perera,
(1) at pp. 215-217; and Wickramasinghe (91) at p. 304, just as it is inherent in
Article 10(2) of the European Convention. Gay
News U. K., (83) at p. 130. A
restriction, even if justified by compelling governmental interests, such as the
interests of national
security, must be so framed as not to limit the right
protected by Article 14(1)(a) more than is necessary. That is, the restriction
must be proportionate and closely tailored to the accomplishment of the
legitimate governmental objective necessitating it. Re
Compulsory membership of
journalists' association, (2) at p. 176.
"Necessity" and, hence, the legality of restrictions imposed under Article 15(7)
on freedom of expression, depend upon
a showing that the restrictions are
required by a compelling governmental interest. If there are various options to
achieve this
objective, that which least restricts the right protected
376
must be selected. Even though the
governmental purpose be legitimate and substantial, that purpose cannot be
pursued by means that
broadly stifle fundamental liberties of citizens when that
end can be narrowly achieved. The breadth of legislative abridgement
must be
viewed in the light of less drastic means for achieving the same basic purpose.
Shelton v. Tucker, (106) (U. S.) at p.
488 (S. Ct.) at p. 252. Given this
standard, it is not enough to demonstrate, for example, that a regulation
performs a useful
or desirable purpose; to be compatible with the Constitution,
the restrictions must be justified by reference to governmental objectives
which, because of their importance, clearly outweigh the social need for the
full enjoyment of the right Article 14(1)(a) guarantees.
Cf. Re Compulsory
membership of journalists' association, (2) at p. 176.
In Joseph Perera's case, (1) at pp. 228-229, Sharvananda, C. J. stressed the
need for regulations restricting freedom of speech
to be drawn with "narrow
specificity". His Lordship said: "There can be no doubt of the Government's
interest in
protecting the State from subversion. But 'even though the
Government's purpose be legitimate and substantial, that purpose cannot
be
pursued by means that broadly stifle fundamental personal liberties when the end
can be more narrowly achieved.' Shelton v.
Tucker, (106) at p. 488." The
difficulty, however, is striking a fair balance when making such regulations.
Thus in Brind
and Others v. U. K., (19) at pp. C. D. 83-84, the European Court
of Human Rights had adverted to the special problems involved in
combating
terrorism, and observed that -the Commission has no doubt as to the difficulties
involved in striking a fair balance
between the requirements of freedom of
information - especially the free flow of information from the media - and the
need to protect
the State and the public against armed conspiracies seeking
377
to overthrow the democratic order
which guarantees this freedom and other human rights." In the instant case,
attention should
be drawn to the fact that the regulations have been amended
from time to time. The petitioner points out that this may have been
in response
to public and international criticism. On the other hand, the respondents
maintain that the regulations have been amended
from time to time to take
account of changing circumstances and as a response to the needs of the time. In
the instant case, given
the difficulties involved, I am of the view 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 Court is not required to deal with the question of necessity in a general
and abstract manner, but only in so far as the facts
in a particular case are
concerned. Markt Intern and Beerman v. Germany, (85) at p. 232. The criterion of
"necessity"
cannot be applied in absolute terms but calls for the assessment of
various factors. These include the nature of the right in question,
the degree
of interference, the nature of the public interest and the extent to which it
needed to be protected in the particular
circumstances. App. No. 12230/86 v.
Germany, (99) at p. 102.
I have explained the importance of the right in question: In sum, freedom of
speech and expression is the cornerstone of our representative
democracy.
At the same time, due account must be taken of the fact that the aim of the
regulation was the protection of national
378
security within the meaning of
Article 15(7). In order to verify that the interference was not excessive in the
instant case, a
fair balance between competing interests must be struck: the
requirement of protecting national security must be weighed against
the
petitioner's right of free speech and expression. Cf. Groppera Radio AG v.
Switzerland, (87) at p. 343; Barfod v. Denmark (100)
at p. 499. In matters of
this nature, the interests of society as a whole must be considered. Otto
Preminger Institute v. Austria,
(21) at p. 59. The notion "necessary", as we
have seen, implies" a pressing social need". This may include the
"clear and
present danger" test, as developed by the American Supreme Court, pace Seervai,
and the question "pressing
social need", must be addressed in the light of the
circumstances of a given case. Arrowsmith v. U. K., (88) at p. 233. On
the three
phases in the development of the clear and present danger' doctrine, see Nowak,
Rotunda and Young, Constitutional Law,
3rd Ed., pp. 853-874.
In the instant case, there is, as the petitioner herself states a "war" between
the LTTE and the Government Forces. Judicial
notice of the fact that "the
Government is faced with a serious civil war" was taken by this Court in
Wickramasinghe
v. Edmund Jayasinghe, (91) at p. 307. Terrorism is a tactic that
is resorted to by the LTTE in that "war". That is a matter
that is well and
widely known, and of which judges of this Court have taken cognizance. See
Visuvalingam & Others v. Liyanage,
(28) at p. 333. Terrorism not only hurts, but
tends to destroy democracy and. democratic institutions. There are imminent
dangers
threatening the free, democratic constitutional order of the Republic of
Sri Lanka. In such a situation, national security must
take precedence over the
right of free speech, for, as Chief Justice Vinson observed in Dennis v. U. S.,
(71), the safety of the
nation is "the ultimate value of society. For if
379
a society cannot protect its very
structure from armed internal attack, it must follow that no subordinate value
can be protected."
In Visuvalingam & Others v. Liyanage, (27) at p. 375, Soza, J. said:
"The. Government, too, undoubtedly values the freedom of the Press and believes
that democracy will sustain itself best, as
it has been said, in the free market
of ideas ... But at times of national crisis, the safety of the nation becomes
paramount and
some inroads have of necessity to be made into the freedom of the
Press . . ." In Siriwardene and Others v. Liyanage (107)
at p. 187 Wimalaratne,
J. (Ratwatte, Colin-Thome, Abdul Cader, Rodrigo, JJ., agreeing) said: "In .a
word, there are essential
limits on the rights to publish. The limitations are
greater when a nation is at war or under a state of emergency. . ."
In Klass and Others v. Federal Republic of Germany, (108) the complaint to the
European Court of Human Rights related to legislation
granting powers of secret
surveillance. The Court, at p. 232, said that it could not "but take judicial
notice of two important
facts. The first consists of the technical advances made
in the means of espionage and, correspondingly, of surveillance, the second
is
the development of terrorism in Europe in recent years. Democratic societies
nowadays find themselves threatened by highly sophisticated
forms of espionage
and by terrorism, with the result that the State must be able, in order to
effectively counter such threats,
to undertake the secret surveillance of
subversive elements operating within its jurisdiction. The Court has therefore
to accept
that the existence of some legislation granting powers of secret
surveillance over the mail, post and like
380
communications, is under
exceptional conditions, necessary in a democratic society in the interests of
national security and/or
for the prevention of disorder or crime." The Court,
having examined the contested legislation and the manner of its application
concluded at p. 237 that the interference resulting from that legislation was
"necessary in a democratic society in the interests
of national security and for
the prevention of disorder". The decision was followed in G. v. Germany (84) at
p. 504; and in
App. No. 10628/83 v. Switzerland, (109) at p. 109.
The impugned regulations were stated to be "Emergency (Prohibition on
Publication and Transmission of Sensitive Military Information)
Regulations.
They applied to information pertaining to specified matters, namely, "military
operations in the North and East,
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
in naval vessel by any
such forces, or any statement pertaining to the official conduct, morale or the
performance of the Head
or of any member of the Armed Forces or the Police Force
or of any person authorised by the Commander-in-Chief of the Armed Forces
for
the purpose of rendering assistance in the preservation of national security."
The emphasis is mine. One of the petitioner's principal concerns was with the
provision protecting the conduct and performance of
the persons referred to in
the words emphasised. As we have seen, the explanation given for the protection
of the persons designated
was to prevent a recurrence of attacks of the nature
that had been made leading to the demoralization of the Armed Forces. While
the
preservation of
381
the morale of the Armed Forces is
an important matter, yet, as we have seen, in a democracy, freedom of speech
performs a vital
role in keeping in check persons holding public office. For a
citizen to keep a critical control of the exercise of public power,
it is
essential that particularly strict limits be imposed on the publication of
information which refers to the activities of
public authorities. App. No.
11508/85 v. Denmark, (110) at p. 561. Relying on the decision of this Court in
Joseph Perera's case,
(1), and particularly on the dicta of Sharvananda, C. J.
at p. 217 and p. 230, learned counsel for the petitioner submitted that
the
impugned regulation was "over-broad" and "disproportionate" for two reasons.
First, if the aim of the regulation
was, as explained by the first respondent in
his affidavit, inter alia, to ensure that the morale of government forces in the
North
and East was sustained, the manner in which the regulation was framed did
not confine the restrictions to the conduct of the persons
in the North and
East. The restrictions were applicable to the conduct of the persons in the
other parts of the State as well and
there was therefore no nexus between the
stated aim and the regulation framed. Secondly, citing examples from newspapers,
learned
counsel submitted that the Competent Authority in practice arbitrarily
censored information that was not covered by the terms of
the regulations.
With regard to the first matter, I agree there was ambiguity. However, where
there is ambiguity, such provisions, since they impinge
on Constitutionally
guaranteed rights, must be interpreted restrictively. Therefore, the meaning to
be ascribed to the words objected
to must be that they applied to information
concerning such persons with regard to their activities in the North and the
East.
This interpretation is reinforced by the Sinhala version which
382
leaves no doubt as to the
intention of the maker of the regulations.
I agree that where laws, including regulations, vest in administrative officials
a power of censorship over communications not confined
within standards designed
to curb the dangers of arbitrary or discriminatory action, such laws, being
unnecessary to achieve even
a legitimate aim may be struck down as being
over-broad. Lovell v. Griffin, (I11); Cantwell v. Connecticut, (112), Saia v.
New
York, (113); Kunz v. New York, (114). The "breadth" with which those cases
were concerned was the breadth of unrestricted
discretion left to a censor,
which permitted him to make his own subjective opinions the practically
unbelievable measure of permissible
speech. That is not so in the instant case.
Unlike in Joseph Perera's case (1) at p. 230, the authority was not given a
"naked
and arbitrary power. . . without any guiding principle to regulate the
exercise of the Competent Authority's discretion. There was
no mention in the
impugned regulation in that case of the reasons for which an application to
publish may have been refused. In
the instant case, however, the matters falling
within the Competent Authority's purview are, in my view, set out with
sufficient
clarity to make the decisions reviewable.
The petitioner's case is that the examples cited from the newspaper articles
showed that there had been an improper exercise of
the powers of the Competent
Authority. H. A. G. de Silva, J. (Fernando. agreeing) observed in Wickramabandu
v. Herath and Others,
(101) at p. 358, that the fact that `a power may be abused
does not render the regulation invalid; such abuse of power is by no
means
beyond challenge." In the same case Kulatunga, J. at p. 378 (Ramanathan, J.
agreeing) said:
383
"I cannot agree that the
possibility of abuse is a ground for declaring [the regulation] ultra wires: the
remedy against abuse
is judicial review." The observations of the European Court
of Human Rights in Klass and Others v. Federal Republic of Germany
(108) at p.
237, are also worth recalling: "While the possibility of improper action by a
dishonest, negligent or overzealous
official can never be ruled out, whatever
the system, the considerations that matter for the Court's present review are
the likelihood
of such action and the safeguards provided to protect against
it."
If it turns out that the regulations are abused, we would have a different kind
of case than that presently before us. All that
is now here is the validity of
the regulations ex facie, not the review of particular actions of the Competent
Authority, and I
am unable to agree that in this posture of things the
regulations can be said to be unconstitutional. Shelton v. Tucker, (106) at
(U.
S.) p. 499 and (S. Ct.) p. 258.
Moreover, in matters of this nature, although this Court has the power to decide
whether a regulation made under section 5 of the
Public Security Ordinance is
"necessary", see Channa Pieris's case, (3) at pp. 140-141; Siriwardene v.
Liyanage, (107)
at p. 329; or 'expedient' in the sense of being a timely
measure, neither too early nor too late, having regard to prevailing
circumstances,
yet "due weight" ought to be given to "the opinion of the
President that the regulation is necessary or expedient
in the interests of
public security and order." Per Sharvananda, C. J., in Joseph Perera's case, (1)
at pp. 216-217.
Although the Government in Brind's case, (19) did not contend that the
interference with the applicant's rights
384
was a prime element in the
struggle against terrorism, the European Commission of Human Rights found that
it could be regarded as
"one aspect of a very important area of domestic
policy." Vide pp. C. D. 83-84. Having regard to the extensive experience
of the
executive and legislature on terrorist matters, and "bearing in mind the margin
of appreciation permitted to States,"
the limited extent of the interference
with the applicant's rights and the "importance of measures to combat
terrorism",
the Commission found that it could not be said that the interference
with the applicant's freedom of expression was disproportionate
to the aim
sought to be pursued. Vide p. C. D. 84. Similar views were expressed by the
Commission in McLaughlin v. U. K, (49) at
p. C. D. 92. The margin of
appreciation in assessing the pressing social need, and in choosing the means,
and fixing the conditions
for achieving the legitimate aim of protecting
national security is a wide one. Klass and Others v. Federal Republic of
Germany,
(108) at p. 232; Leander v. Sweden, (60) at p. 453; The Observer and
the Guardian v. U. K., (15) at p. 178. See also Yasapala v.
Wickramasinghe,
(115). In Visuvalingam & Others v. Liyanage, (27) at p. 375, Soza, J. said: "It
would be difficult for
anyone but the repository of power to form an opinion as
to the occasion for its exercise. He is entrusted with the maintenance
of public
security. He has a better "feel" of the crisis with the intelligence services at
his command than anyone else.
. ."
The petitioner contended that "the imposing of censorship in this manner has, in
any event, been rendered an obsolete exercise
by the advent of the communication
revolution with its laptop publishing facilities, satellite telephones, portable
scanners and
TV transmission equipment that
385
transmit news at the speed of
light." I agree that if information has been already made public or had ceased
to be confidential,
it would be unnecessary to prevent disclosure. Weber v.
Switzerland, (105) at p. 524; The Observer and the Guardian v. U. K., (15)
paras
67-70; The Sunday Times v. U. K., (16) at pp. 243-244, Vereninging Weekblad Bluf
v. The Netherlands, (116) at p. 203. However,
there was no evidence in the
instant case that information that had in fact been disclosed or ceased to be
confidential was being
suppressed by the regulations. The possibility that
prohibited information may be transmitted always exists, but that does not carry
with it the corollary that such information should not, in the interests of
national security, be classified as confidential.
Having regard to all the circumstances, I am of the view that the restrictions
imposed were not disproportionate to the legitimate
aim of the regulation,
namely, the furtherance of the interests of national security within the meaning
of Article 15(7) of the
Constitution, and that a fair balance between competing
interests has been struck. The restrictions complained of correspond to
a
countervailing social need sufficiently pressing to outweigh and overbear the
petitioner's; (and having regard to the societal
value of Article 14(1)(a), as
well as the public's) interest in freedom of speech and expression, within the
meaning of the Constitution.
ORDER
For the reasons set out in my judgment, I declare that the petitioner's
fundamental rights guaranteed by Articles 10, 12(1) and
14(1) (a) have not been
violated, and dismiss the petition.
386
In all the circumstances, I make
no order as to costs.
WADUGODAPITIYA, J. - I agree.
WEERASEKERA, J. - I agree.
Application dismissed.
] [Hide Context]
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