FREEDOM OF SPEECH.

CONSTITUTIONAL ARTICLES & DECIDED JUDGEMENTS ON FREEDOM OF SPEECH.

Duncan Abeynayaka – LLB, Attorney At Law

 

SRI LANKA'S CONSTITUTION OF 1978

Article 10. FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION

Every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice.

 

Article 14. FREEDOM OF SPEECH, ASSEMBLY, ASSOCIATION, OCCUPATION, MOVEMENT ETC

1. Every citizen is entitled to –

a. the freedom of speech and expression including publication;

 

Article 15. RESTRICTIONS ON FUNDAMENTAL RIGHTS

2. The exercise and operation of the fundamental right declared and recognized by Article 14(1)(a) 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.

7. The exercise and operation of all the fundamental rights declared and recognized by Articles 12, 13(1), 13(2) and 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 welfare of a democratic society. For the purposes of this paragraph “law” includes regulations made under the law for the time being relating to public security.

8. The exercise and operation of the fundamental rights declared and recognized by Articles 12(1), 13 and 14 shall, in their application to the members of the Armed Forces, Police Force and other Forces charged with the maintenance of public order, be subject to such restrictions as may be prescribed by law in the interests of the proper discharge of their duties and the maintenance of discipline among them.

 

UNIVERSAL DECLARATIONS OF HUMAN RIGHTS

Article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 29

(I) Everyone has duties to the community in which alone the free and full development of his personality is possible.

(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

 

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

Article 19

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

 

DECIDED JUDGEMENTS

01. JOSEPH PERERA V. THE ATTORNEY GENERAL (1992) 1 SRI LR 199

25th May, 1987.

SHARVANANDA, C.J.

Article 14 of the Constitution deals with those great and basic rights which are recognised and guaranteed as the natural rights Inherent In the status of a citizen of a free country. Freedom of speech by Article 14(1)(a) goes to the heart of the natural rights of an organised freedom loving society to impart and acquire information. Of that freedom one may say that it is the matrix, the indispensable condition of nearly every other freedom. This freedom is not absolute. There is no such thing as absolute and unrestricted freedom of speech and expression, wholly free from restraint; for, that would amount to uncontrolled licence which would lead to anarchy and disorder. Article 29(2) of the Universal Declaration of Human Rights sets forth the cases in which this freedom of expression may legitimately be restricted. On similar lines, there are provisions in our Constitution. Article 15(2) provides that the exercise and operation of the right of freedom of speech and expression 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) further provides that “the exercise and operation of all the fundamental rights declared and recognised by Articles 12, 13(1), 13(2) and 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 the due recognition and respect of the rights and freedoms of others or of meeting the just requirements of the general welfare of a democratic society.

Freedom of speech and expression means the right to express one's convictions and opinions freely by word of mouth, writing, printing, pictures or any other mode. It includes the expression of one's ideas through banners, posters, signs etc. It includes the freedom of discussion and dissemination of knowledge. It includes freedom of the press and propagation of ideas, this freedom is ensured by the freedom of circulation. The right of the people to hear is within the concept of freedom of speech. There must be untramelled publication of news and views and of the opinions of political parties which are critical of the actions of the government and expose its weaknesses. Debate on public issues should be uninhibited, robust and widely open and that may well include vehement, caustic and sometimes sharp attacks on government.

Such debate is not calculated and does not bring the government into hatred and contempt.

It is only when the words written or spoken which have the tendency or objection of creating public disorder that the law steps in to prevent such activities in the interests of public security or public order.

Freedom of speech must yield to public order. In the interest of public order the State can prohibit and punish the causers of loud noises in the streets and public places by means of sound amplifying instruments, regulate the hours and places of public discussion, the use of public streets for the purpose of exercising freedom of speech, provide for the expulsion of hecklers from meetings and assemblies, punish utterances tending to incite an immediate breach of the peace or riot as distinguished from utterances causing mere public inconvenience, annoyance or unrest.

The general rule is that any form of previous restraint is regarded on the face of it as an abridgment of the freedom of expression and offends Article 14(1)(a) of the Constitution. Any system of prior restraint of expression comes to court to bearing a heavy burden of showing justification for the enforcement of such a restraint.

Following judgments were referred:

Palks v. Connecticut (1937) 302 us 319.

“Of that freedom one may say that it is the matrix, the indispensable condition of nearly every other freedom”

Griswald v. Connecticut (1965) 28 US 479

“The right of freedom of speech and press includes not only the right to distribute, the right to receive, the right to read and freedom of inquiry and the right to teach ... These are proper peripheral rights” per Douglas, J.

Thornhill v. State of Alabama 310 US 88

“Public opinion plays a crucial role in modern democracy. Freedom to form public opinion is of great importance. Public opinion, in order to meet such responsibilities, demands the condition of virtually unobstructed access to and diffusion of ideas. The fundamental principle involved here is the people’s right to know. The freedom of speech guaranteed by the Constitution embraces at the least the liberty to discuss publicly all matters of public concern without previous restraint or fear of subsequent punishments.”

Without free political discussion, no public education, so essential for the proper functioning of the process of popular government, is possible. The welfare of the community requires that those who decide shall understand them. The right of the people to hear is within the concept of freedom of speech.

 

02. DESHAPRIYA AND ANOTHER V. MUNICIPAL COUNCIL NUWARA ELIYA AND OTHERS (1995) 1 SRI LR 362

March 10, 1995.

FERNANDO, J.

The infringement of Article 14(1) (a), by executive or administrative action, can take many forms, and may be direct or indirect; the exclusion of anti-Government news and views in newspapers owned or controlled by the Government, particularly when it amounts to a denial of equal treatment or discrimination because of political opinion (of Article 12), would be as much an infringement as the suppression (by force or otherwise) of such news and views in newspapers independent of the Government. The infringement in this case was in the latter category, and in my opinion was more serious.

The right to support or to criticise governments and political parties, policies and programmes is fundamental to the democratic way of life; 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”; and democracy requires not merely that dissent be tolerated, but that it be encouraged.

 

03. WIJERATNE V. VIJITHA PERERA, SUB-INSPECTOR OF POLICE, POLONNARUWA AND OTHERS (2002) 3 SLR 319

March 02, 1994

FERNANDO, J.

The Constitution, and in particular Articles 10, 12, and 14 recognise the fundamental right of every Sri Lankan to be different; to think differently; and to have and to express different opinions - not merely a right to disagree privately in silence, but to communicate disagreement openly, by word, conduct and action, by peaceful and lawful means. Dissent, or disagreement manifested by conduct or action, is a cornerstone of the Constitution. It is a right enjoyed by Members who speak and vote as they wish in Parliament; by “Judges, who must decide controversies according to their considered opinion; and by every citizen at election time when he casts his vote for the candidate of his choice. Democracy requires not merely that dissent be tolerated, but that it be encouraged; and this obligation of the Executive is expressly recognized by Article 4 (d), which therefore requires that the police not only refrain from suppressing lawful dissent, but also that they ‘respect, secure and advance” the right to dissent. As Justice Jackson ominously observed in West Virginia State Board of Education v. Barnettd (1943) 319 US 624, 641

“Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. It seems trite but necessary to say that the first amendment was designed to avoid these ends by avoiding these beginnings.”

 

04. AMARATUNGA V. SIRIMAL AND OTHERS (1993) 1 SRI LR 264

MARCH 08, 1993.

FERNANDO, J.

"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 ".

Criticism of the Government, and of political parties and policies, is per se, a permissible exercise of the freedom of speech and expression under Article 14 (1)(a)

 

05. SUNILA ABEYSEKARA V. ARIYA RUBASINGHE, COMPETENT AUTHORITY AND OTHERS (2000) 1 SLR 314)

May 15, 2000

AMERASINGHE, J.

"Freedom of speech necessarily protects the right to receive information, regardless of the social worth of such information.”

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, in ter alia, national security.

The burden of establishing restrictions imposed under Article 15 (7) is heavy.

“Exceptions [to Article 14(l) (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 term s, declares Sri Lanka to be"

While the preservation of morale of the Armed Forces is an important matter, yet, in a democracy, freedom of speech perform s 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 restrictively to limit it to information concerning such persons in the North and East.

A restriction on the freedom guaranteed by Article 14(l)(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.

 “....if the court is satisfied that the restrictions are clearly unreasonable, they can n o t be regarded as being within the intended scope of the power under Article 15(7)"

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.

The restrictions imposed were not disproportionate to the legitimate aim of the regulations, namely the furtherance of the interest of national security in term s of Article 15(7).

 

06. DISSANAYAKE V. UNIVERSITY OF SRI JAYAWARDENAPURA (1986) 2 SLR 254

23.06.1986.

SHARVANANDA, C.J.

The fundamental rights guaranteed by Article 14 of the Constitution are not absolute but are subject to the elemental need for order without which the guarantees of. Civil rights to others would be a mockery. The guarantee of freedom of speech spelt by Article 14(1)(a) of the Constitution is subject to the qualification that it should not violate or infringe the rights of others. The right of freedom of speech has also to be subordinated to the obligation of the State and its agencies to maintain order and discipline. The right is not free from regulation imposed in the interests of efficiency, discipline, health, morality, public order and the like.

Article 14 (1) (a) does not give a carte blanche to University students to violate the rights of the Vice-Chancellor by publishing baseless allegations respecting his administration or by defaming him.

 

07. MALLAWARACHCHI V. SENEVIRATNE, OIC KEKIRAWA (1992) 1 SLR 181

28th September, 1989.

KULATUNGA, J.

Every statement which is per se defamatory does not cease to be in the exercise of the freedom of speech.

A true statement, made in the public interest or in the protection of a lawful interest, would be clearly in the exercise of freedom of speech although ex facie defamatory. Such statements may be made by way of criticism of those holding or seeking public office, particularly where relevant to such office.

 

08. FERNANDO V. THE SRI LANKA BROADCASTING CORPORATION AND OTHERS (1996) 1 SLR 157

30 January, 1996.

FERNANDO, J.

Article 14 (1) (a) of the Constitution is not to be interpreted narrowly. Not only does it include every form of expression, but its protection may be invoked in combination with other express guarantees (such as the right to equality); and it extends to and includes implied guarantees necessary to make the express guarantees meaningful. Thus it may include the right to obtain and record information , may be by mean s of oral interview  publications, tape-recordings, photographs and the like, and, arguably, it may even extend to a privilege not to be compelled to disclose sources of information, if that privilege is necessary to make the right to information “fully meaningful". Likewise other rights may be needed to make the actual exercise of the freedom of speech effective: rights in respect of venues, amplifying devices, etc.

 

09. VISUVALINGAM V. LIYANAGE (1984) 2 SLR 123

18 November. 1983.

WANASUNDERA, J.

The fundamental rights guaranteed by the Constitution cannot by their very nature be interpreted as being absolute rights. There are well recognized restrictions and exceptions to the exercise of these rights. Freedom of speech, press and assembly are dependent upon the powers of Constitutional government to survive. If it is to survive it must have the power to protect itself against unlawful conduct and under certain circumstances against incitements to commit unlawful acts.

Apart from a fatal prohibition and ban on certain topics offensive to society and orderly government, freedom of speech in other matters may be circumscribed by time, place and circumstances. What is permissible at one place and time may not be permissible at another place or time.