Freedom of expression is one of the essential foundations of a civilised and truly democratic society. It is also one of the conditions essential for the development of the human personality.
The freedom of expression serves four broad social purposes: (a). it helps a person to attain self – fulfillment; (b) it assists in the discovery of truth; (c) it strengthens the capacity of an individual in participating in decision making and (d) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
Ideas and experiences may be communicated in many forms.
These include dialogue, publication and distribution of written materials such as newspapers, leaflets, books, pictures and cartoons, instantaneous diffusion of the spoken words and visual image by the electronic media and also of art forms such as paintings, music, sculpture and the cinema.
Article 19 of the Universal Declaration of Human Rights and Article 10 of European Convention of Human Rights, among others guarantee freedom of expression.
The First Amendment to the US Constitution, and Article 19(1) (a) of the Indian Constitution also guarantee this freedom.
Article 14 (a) of our Constitution guarantees to every citizen the freedom of speech and expression including publication apart from statute law. Case law from Sri Lanka is cited below to illustrate its applicability.
Case Law
The Denial of Equal Treatment or Political Discrimination as an Aspect of Freedom of Speech, Expression and Publication.
Among the cases that stand out in this respect, Sunanada Deshapriya v Municipal Council of Nuwara-Eliya may be considered.
In Sunanda Deshapriya, 450 copies of an opposition Newspaper- Yukthiya – were seized on the orders of a Mayor of a provincial city –Nuwara Eliya. It was established that the seized newspaper was a fervent critic of the Government of Sri Lanka.
The action was brought in for the violation of the freedom of speech, expression and publication. The Supreme Court allowed the action, and awarded damages which were ordered to be paid personally by the Lady Major of Nuwara-Eliya. It was under her orders that the copies of the newspaper were seized.
Article 12 of the Constitution, to which the judgment refers, declares in its (2nd) paragraph, that ‘No citizen shall be discriminated against on the grounds of race, language, caste, sex, political opinion, place of birth or anyone of such grounds’. What the Court did in Sunanda Deshapriya was to forge a nexus between that sub-section and the freedom of expression Article.
In doing so, the Court has expanded the ambit of the freedom of expression in Article 14(1) (a) to include ‘denial of equal treatment or discrimination because of political opinion’.
A violation of the Right to Legitimate Political Protect as an Aspect of a Violation of the Freedom of Speech and Express including Publication Legitimate political protest may take several forms.
In Amaratunga v Sirimal, the Sri Lankan Freedom Party, then in the Opposition, organised a rather unusual political protest against the Premadasa government, on 1st July 1992.
On that date, people who opposed the Government were called out to perform what was called in the vernacular a ‘Jana Ghosha’ – a peoples’ vocal protest – by –‘in concert with others causing terrible dim and drumming. The Respondents arrested the Petitioner.
The Supreme Court held that the Respondents had violated the fundamental rights of speech, expression and publications, found in Article 14(1) (a) of the Constitution. Justice Mark Fernando observed:
‘Speech and expression extend to forms of expression other than oral or verbal placards, picketing, the wearing of black arm bands, the burning of draft cards, the display of flags, badges, banners or devices, the wearing of a jacket bearing a statement and so on.’ The Right to organise, hold and conduct meetings as an aspect of the freedom of speech and expression, including publication.
The right to hold meetings has been linked to the set of three rights recognised in Article 14 (1) (a) of the Constitution.
Namely, free speech, expression and the right to publish. In Joseph Perera v Attorney –General, the Petitioner and three others, who were members of the ‘Revolutionary Communist League’ organised a meeting to discuss ‘Popular Fronts and Free Education’.
Two days prior to the meeting a leaflet was issued pertaining to the meeting. In that leaflet ‘the organisers accused the governing United National Party. Acting on the information received, the Police arrested the Petitioner and his principal organisers, with a reasonable impression that the meeting was subversive, stopped the meeting and dispersed those who had come to attend it. They were arrested twice. The Supreme Court held that the initial arrest was justified. The Court found that the further detention of the Petitioners was a violation of Article 14(1)(a) of the Constitution. Sharvananda CJ, wrote:
‘Freedom of speech and expression means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, pictures or by any other mode.
It includes the expressing of one’s ideas through banners, posters, signs and so on. It includes the freedom of discussion and dissemination of knowledge. It includes the freedom of the press and the propagation of ideas; this freedom is ensured by the freedom of circulation.
The right of the people to hear is within the concept of freedom of speech. There must be untrammeled publication of news and views and of the opinions of political parties which are critical of the actions of the Government and expose its weaknesses.
Debate on public issues should be uninhibited, robust and widely open and that may well include vehement, caustic and sometimes sharp attacks on the Government.
The right to publish is inherent in the freedom of speech and expression
Freedom of thought enshrined in Article 10 of the Constitution is meaningless unless there is the fullest support in the Constitution to the freedoms of speech and expression. These two freedoms, become a reality through the freedom to publish.
These freedoms therefore are inter linked and do provide the underpinnings for the other freedoms that provide for a democratic society.
The Constitutionality of the Sri Lanka Broadcasting Bill, the Petitioners raised the issue before the Supreme Court as to whether the Bill in its present form violated, among others, Article 14(1) (a) of the Constitution.
The facts revealed that the government broadcaster was subject to a less strict standard of accountability than the private broadcaster. The Court held that there was a violation of the equality provisions of the Constitution and a violation of Article 14(1) (a), the freedom of publishing.
Right to receive information as an aspect of the right to free speech, expression and publication.
The right to receive news is intertwined with the right of free speech, expression and publication. These together underpin education.
In Wimal Fernando v the Sri Lanka Broadcasting Corporation, the Petitioner alleged that the government controlled Sri Lanka Broadcasting Corporation terminated its ‘non-formal education program’ and by doing so the Corporation violated his fundamental rights to ‘freedom of speech and expression’.
The program dealt with a wide range of subjects, namely: human rights, ethnicity, sociology, legal and medical issues, culture and so on.
The Supreme Court unanimously held that his right to receive and impart his views, which the program provided was an aspect of his fundamental right to free speech, expression and publication and therefore its withdrawal constituted a violation of Article 14 (1) (a) of the Constitution.
The petitioner in Environmental Foundation Ltd v Urban Development Authority challenged the handing over of the management and control of Galle Face Green, a 14 acre seaside promenade in Colombo, to E.A.P. Ltd.
The request by the Petitioner to deliver to it copies of the Order vesting the Green in the UDA, lease agreement with the EAP group and approved plan was rejected by the UDA.
His Lordship S. N. Silva CJ with two other judges agreeing by a far sighted approach well in advance of the recent 20th Amendment guaranteeing right to information held that although the freedom of information was not specifically guaranteed in the Constitution, for the freedom of speech and expression including publication to be meaningful and effective, it should carry within its scope and implicit right of a person to secure relevant information from a public authority in respect of a matter that should be in the public domain.
The bare denial of access to official information amounted to a violation of petitioners right under Article 14 (1) (a). A Right to vote at elections as an aspect of the freedom of expression
The right to vote, is central to the whole process of Government, and the Courts have interpreted the right to vote as an aspect of the freedom of expression which is a fundamental human right under the Constitution.
In Janatha Vimukthi Peramuna v AG and five others, the Supreme Court held among other grounds, that the provisions of the Provincial Councils Elections (Special Provisions) Bill violated Article 14(1) (a) of the Constitution. The Supreme Court held that the right to vote was an aspect of the right of free speech and of expression.
Franchise was not limited to voting. It includes the right to stand for elections, and indeed the whole process stretching from the right to be nominated to the declaration of the person elected at the end of the process.
Restrictions
A Constitution that declares fundamental rights and freedoms lays down permissible restrictions in order to maintain a balance between individual rights and freedoms on the one hand and the interests of the society on the other.
While the rights and freedoms represents the claims of the individual, the permissible restrictions represent the claims of society.
Under our Constitution, the freedom of thought, conscience and religion ( Article 10), freedom from torture (Article 11), the right to a fair trial (Article 13 (3)) and the freedom from punishment with death or impressment except in accordance with law ( Article 13 (4)) are all absolute.
They cannot be restricted under any circumstances. All other fundamental rights are subject to restrictions under Article 15.
Restrictions on Articles 12, 13 (1), (2) and 14 are very wide in scope. According to Article 15 (7), the above are subjected 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 purpose of Article 15(7), “law” includes regulations made under the law for the time being relating to public security. Thus the aforesaid rights can be restricted by emergency regulations made by the President under the Public Security Ordinance, this subject being further governed under Chapter XVIII - Public Security - of our Constitution.
The various statutes such as Penal Code, Police Ordinance also prescribe limitations thereon.
Article 15 (8) declares a further restriction of Articles 12 (1),13 and 14 in their applicability to members of the Armed Forces, the Police and other Forces charged with the maintenance of public order as may be prescribed by law in the interests of proper discharge of their duties and maintenance of discipline among them.
The World Press Freedom Day – 2021 recently remembered world over, acts as a reminder of the governments of the need to respect their commitment to press freedom.
It is also a day of reflection among media professionals about issues of press freedom and professional ethics.
The Writer is a retired Professor in Law at the University of Sri Jayewardenepura. He is an Attorney –at – Law practiced in courts and holds a Ph.D. in law with four other University post degrees