(As the Criminal Investigation Branch has questioned four representatives from several reputed human rights organisations regarding a pamphlet published on December 10, 2007 calling for the ending of impunity regarding disappearances. We set out below the legal position in Sri Lanka regarding publications as set out by the courts of the country. For details see previous statements:
[AHRC Open Letter] SRI LANKA: Illegal inquiries conducted by Colombo Criminal Division (CCD) and the National Investigation Bureau (NIB) against four reputed human rights organisations in Sri Lanka at: http://www.ahrchk.net/statements/mainfile.php/2008statements/1619/
SRI LANKA: Outlawing discussion on forced disappearances at: http://www.ahrchk.net/statements/mainfile.php/2008statements/1623/
SRI LANKA: Demoralisation of the armed forces and shared values at:
http://www.ahrchk.net/statements/mainfile.php/2008statements/1626/).
General Principles Relating to the issues of this inquiry
The demonstration in question and the leaflets in issue concerned a legitimate question of public inquiry in relation to enforced disappearances that had been the focus of public debate and discussion in Sri Lanka for decades.
The action of the CCD in threatening legal action under the current emergency regulations in relation to the contents of the leaflets infringes and/or imminently infringes a number of constitutional rights, most prominently among them being the freedoms of speech, expression and information as well as the freedoms of assembly and association.
These freedoms have been upheld by the Sri Lankan Supreme Court in very similar contexts of violations in a plethora of cases, most singularly, the following instances that would be individually examined given their importance to the subject mater of the instant infringement and/or imminent infringement.
A. Affirming the General Principle of the Right to Criticise the Government
1. RATNASARA THERO v UDUGAMPOLA
[1983] 1 Sri LR 461
In this instance, leaflets published by an organisation called the Pavidi Handa (constituted by a considerable number of the clergy, Buddhist and Christian, who were opposed to the proposal to extend the life of Parliament for an additional period of 6 years) were seized. The police stated that the leaflets had been seized from the press, because it was illegal to print them under emergency rules and election laws. The Court ruled that the seizure of the leaflets amounted to a serious violation of the fundamental rights of the petitioner, that is the freedom of speech and expression including publication and the 1st respondent was directed to pay Rs. 10,000/- as compensation and Rs. 2,100/- as costs to the petitioner.
2. MOHITTIGE AND OTHERS v GUNATILLEKE AND OTHERS.
[1992] 2 Sri LR 246
Here, the office- bearers of the newly formed Homagama Branch of the Democratic Peoples Organization, was given permission by the police to use a loudspeaker at a meeting (seminar) subject however to a condition that the speakers should refrain from criticising the Government, any Organization or any individual. This al encompassing restriction was ruled to be unconstitutional.
Per Bandaranayake, J: Freedom of speech and expression includes the right to fairly and within reasonable limits criticise a Government. This has been widely recognised in civilized jurisdictions as a natural right inherent in the status of a free citizen. The people have a right to be informed of public issues through sources outside and independent of the Government. This freedom however can be restrained where its exercise is intended to or has a tendency to undermine the security of the state or public order, or incite feelings of disaffection or ill will against the State or bring the Government into hatred or ridicule, etc.
In this instance, it was stated by Court that blanket restrictions imposed by the police such as prohibiting saying anything against the Government or its activities tends to nullify democratic Government as is understood in this country. Such a condition would necessarily evoke feelings of fear and confusion in the public mind and of those wishing to participate at the seminar though upon the evidence speakers did defy the ban.
3. AMARATUNGA v SIRIMAL AND OTHERS (Jana Ghosha case)
[1993] 1 Sri LR 264
Several political parties including the Sri Lanka Freedom Party engaged in a noise protest as a means of showing their disapproval of the policies and actions of the Government. The protestors were assaulted and tear gassed. The Court ruled that this action violated the petitioners fundamental right of speech and expression.
Per 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).
It was a grave, deliberate and unprovoked violation of the Petitioner’s freedom of speech and expression.
“Stifling the peaceful expression of legitimate dissent today can only result, inexorably, in the catastrophic explosion of violence some other day. Hence the obligation cast on this Court by Article 4 (d) of the Constitution, to respect, secure and advance fundamental rights, would amply justify the exercise of (the power of the Court) under Article 126(4) to give directions to the police to ensure that they will respect the citizen’s fundamental right of speech and expression, and will not suppress peaceful protest.”
4. DESHAPRIYA AND ANOTHER VS. MUNICIPAL COUNCIL, NUWARA ELIYA AND OTHERS.
[1995] 1 Sri LR 362
In issue here was the seizure of the weekly newspaper Yukthiya which were critical of the then Government. In ruling that the seizures resulted in the abridging of the freedom of speech and expression, the Court pronounced particularly important principles on the nature of the right protected.
Per Fernando, J:
while infringements of Article 14 (1) (a) may sometimes have to be viewed in isolation, they often do involve other factors, such as denial of equal treatment or political discrimination violative of Article 12. Suppressing freedom of speech and expression, including publication, whether by preventing a newspaper being published or otherwise, would be graver if motivated either by a desire to benefit a rival or by political antagonism.
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 dissent be tolerated, but that it be encouraged.
5. GUNAWARDENA AND ANOTHER v PATHIRANA, OIC, POLICE STATION, ELPITIYA AND OTHERS
[1997] 1 Sri LR 265
Same factual situation as above with the only difference being that a booklet was seized in this instance.
Per Fernando, J:
The booklet contained nothing more than political criticism of the Government; there was no justification for the arrest of the petitioners particularly without prior examination of the booklet; nor was there any justification for detaining the petitioners at the police station; hence the Petitioners rights under Articles 13(1) and 14(1)(a) have been infringed.
B. Authorities affirming that Exaggerated Criticisms of Government are encompassed within the Legitimate Scope of Freedoms of Speech, Expression and Publication
1. CHANNA PIERIS AND OTHERS Vs. ATTORNEY GENERAL AND OTHERS (Ratawesi Peramuna Case)
[1994] 1Sri LR 01
The petitioners were participants in a movement called the Ratawesi Peramuna formed in November 1991 who were arrested under Emergency Regulations prevalent at that time on the basis that they were engaged in a conspiracy against the government after police officers had eavesdropped on their discussions exhorting citizens to topple the Government. The arrests were held to be unconstitutional, violating the rights of speech, expression and association.
Regarding the basis for violation of the right of speech and expression;
Per Amerasinghe, J.
The Ratawesi Peramuna was an anti-government organisation. However, as a matter of law, merely vehement, caustic and unpleasantly sharp attacks on the government, the President, Ministers, elected representatives or public officers are not per se unlawful
..
“Legitimate agitation cannot be assimilated with incitement to overthrow the government by unlawful means. What the third respondent is supposed to have heard, even according to the fabricated notes he has preferred, was a criticism, of the system of Government, the need to safeguard democracy, and proposals for reform.
The call to topple the President or the Government did not mean that the change was to be brought about by violent means. It was a call to bring down persons in power by removing the base of public support on which they were elevated. If the throwing down was to be accomplished by democratic means, the fact that the tumble may have had shocking or traumatic effects on those who might fall is of no relevance. It is the means and not the circumstances that have to be considered. Although the system of self -Government envisaged is one in which the representatives of the majority of electors are entrusted with the powers of the state, such powers are exercised within a framework of constitutional restraints designed to guarantee all citizens the enjoyment of certain fundamental rights which are set out in Chapter 11 of the Constitution. These rights, including the right to free speech, are important both as values unto themselves, benefiting the individual, and as having an instrumental value bringing aggregate benefits to society.
Freedom of thought and expression is an indispensable condition if Sri Lanka is to be more than a nominally representative democracy, 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 elected representative, in deciding to vote for one group of persons rather than another, a voter must necessarily have the opportunity of being informed and educated with regard to proposed policies. The election of representatives is based on an appeal to reason and not to the emotions. Party symbols and faces on posters merely stand of ideas, That sometimes is not the case in practice; but a system of government based on representative democracy assumed it to be so. There can be no appeal to reason without the freedom to express ideas and propagate them and discuss them with a view to forming private opinions and mobilizing such ideas to be accepted in the competition for the right to represent the people. How else can a voter be convinced of the validity and benefit of what a candidate says he stands for and promises to espouse?
He must be able to freely and openly, without previous restraint or fear of harassment, discuss such matters and obtain clarification so as to be able to form his own Judgment on matters affecting his life.
It is only by discussion that proposals adduced can be modified so that the political, social and economic measures desired by the voter can be brought about. The right to free speech enhances the potential of individual contribution to social welfare, thus enlarging the prospects for individual self-fulfillment.
“Members of the public must be free to influence intelligently the decisions of those persons for the time being empowered to act for them which may affect themselves. 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. Freedom of speech ensures that minority opinions are heard and not smothered by a tyrannizing majority. It is the only way of enabling the majority in power to have an educated sympathy for the rights and aspirations of other members of the community. The health of a society of self-government is nurtured by the contributions of individuals to its functioning. It is the way that makes possible the valuable and distinctive contribution of a minority group to the ideals and beliefs of our society.”
Regarding the violation of the right of association;
The petitioners had no purpose of helping to make the Ratawesi Peramuna an instrument of terrorism or violence which would menace the peace and welfare of the State. They were considering matters of personal concern and were anxious to mobilize public opinion to accept their views so that they might replace those in power with other representatives who may give effect to their views. The fundamental right of freedom of expression under Article 14(1) (a) of all the petitioners (except of petitioner in SC Application No. 150/92) has been violated.
The arrest and detention was likely to adversely affect the ability of the Petitioners to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce some of them to withdraw from the Peramuna and dissuade others from joining it because of fear on the expressive and associational activities of those who had the temerity to continue to be members of the Ratawesi Preramuna, which was not a proscribed organization.
The right of association is not only guaranteed by the Constitution to protect the freedom of intimate association but also as an indispensable means of preserving other individual liberties concerned with a wide variety of political, social, economic, educational, religious and cultural ends. In essence the petitioners complaint is that their right of association for the advancement of certain beliefs and ideas was organization whose members or adherents were engaged in purposes prejudicial to national security or the maintenance of public order or in other unlawful activities.
The Court, specifically considering whether the existing Emergency Regulation applied to such conduct, ruled in the negative. It was stated as follows;
The obvious purpose of Regulation 23(a) is to protect the existing government not from change by peaceable, orderly, constitutional and therefore by lawful means, but from change by violence, revolution and terrorism, by means of criminal force or show of criminal force.
There was no basis for arrest under Regulation 18 read with Regulation 23(a) for there was nothing the 3rd respondent heard which suggested that the petitioners were doing anything to overthrow the Government by means that were not lawful. Further the arrest could not have been made on the basis that Regulation 23(b) was being violated. There was not a word in the 3rd respondents notes about murdering or confining anyone:
2. MARIAN AND ANOTHER v UPASENA
[1998] 3 Sri LR 177
The petitioners were arrested by the police for possession of posters containing clearly exaggerated slogans stating that Chandrika was responsible for making the May day a black day for which she should pay compensation and exhorting the public to fight against privatisation / war despite assaults by Chandrika’s police. According to the police, the posters contained material aimed at influencing the Armed Forces from engaging in the war and also enticing the people to react violently against the President, the Government and the Police. The petitioners were arrested under Emergency Regulations.
The arrest was held to be unconstitutional
Per Fernando J.
The impugned posters appeared to be a legitimate exercise of the freedom of expression, and therefore, no offence had been caused
C. Cases Affirming the Right to Assembly and Association for Legitimate Purposes of Criticisng the Government
See Ratawesi Peramuna Case above.
Also;
1. WANIGASURIYA v S.I.PEIRIS
SC(FR) 199/87, SCM 22.9.88
The petitioners, who belonged to a religious organization, had been prevented by the Urban Council from holding a discussion on Adult Education which included discussion of Supreme Court decisions on fundamental rights. This was declared by the Court to infringe the rights of freedom of speech and peaceful assembly. The topic was deemed to be a perfectly legitimate topic of discussion.
2. WIJERATNE v PERERA
SC(FR) 379/93, SCM 2.3.94.
The petitioners planned to hold a peaceful picketing campaign on salaries and permanency issues and printed posters for that purpose. Their seizure (with the inevitable consequence of the cancellation of the campaign) was held to be unconstitutional.
3. SARANAPALA v SOLANGA ARACHCHI AND OTHERS
SC (FR)No: 470/96, SCM 17/07/1997
Members of the NSSP had been prevented from holding their May Day procession by the police. This was held to be unconstitutional by the Court.
Per Amerasinghe, J.
In this case, what was in issue was a demonstration on a public highway. While an apparently limitless variety of conduct cannot be labeled speech whenever the person engaging in the conduct intends thereby to express an idea, marching, parading and picketing on the streets and holding meetings in parks and other public places may constitute methods of expression entitled to the protection of the freedoms declared and recognised in Article 14(1)(a) and (b) of the Constitution. Streets and parks and public places that have been customarily used for purposes of assembly, communicating thoughts between citizens, and discussing pubic questions were held to be in trust for the use of the public and use of such public places were held to be part of the privileges, immunities, rights and liberties of citizens.
The denial of the use of public streets to conduct a May Day procession involves freedom of speech as well as other forms of expression:
When pure speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element could,
justify incidental limitations on the exercise and operation of the fundamental rights declared and recognised by Article 14(1)(a) and (b).
Restrictions on the NSSP procession were imposed by law. Since the restrictions were said to be in the interests of national security and public order, they were ex facie constitutionally within the power of the government to impose. The question was however whether the restriction furthered an important or substantial interest of the government.
When the matter of public safety is complicated by other exceptional facts, such as acts of terrorism, government interest in intervention must necessarily be increased in a commensurable manner.
ex facie, the prohibition on the NSSP procession did further an important or substantial interest of government.
Nevertheless, this important or substantial interest of government is qualified in that:
government interest must be unrelated to the suppression of free expression: The right of free speech and expression cannot be abridged or denied in the guise of regulation for the pretended purpose of furthering legitimate government interests
.
Further,
the incidental restriction on the exercise of the free expression must be no greater than is essential to the furtherance of the interest in maintaining public order.
Applicability of the Case Law to the Facts of this Case.
The above decisions illustrate the nature of the expansion by the Court, of the rights so protected. In the instant case, the actions engaged by the said members of the organizations were fundamentally peaceful and did not even invoke the character of exhortations against the Government as was the case in some of the cases cited above, for example in the Ratawesi Peramuna Case. It is to be noted that the Court upheld the nature of the right to speech and expression in issue in the Ratawesi Peramuna Case. If so, the protection extended to actions which are in issue in this instant case must be even greater.
As stated in Section1. of this Opinion above, the said members of the organizations distributed leaflets that only reflected raised by the Courts themselves regarding two primary matters;
a. the right to invoke the jurisdiction of the Court in protesting against unlawful harassment etc by security forces and police officers;
b. the right to protest against forced disappearances, given the hundreds of cases pending in the High Courts which have named officers of the military and police establishment as being responsible for grave human rights violations, including enforced disappearances and extra judicial executions as well as the relevant reports of the Disappearances Commissions of 1994 and 1998 who in some cases under confidential cover and in other cases, in the Commission Report itself, named the alleged perpetrator.
Within that framework, it is clear that the contents of the leaflets on which arrest in terms of Emergency Regulations have been threatened, is innocuous and is firmly within the rights of legitimate speech, expression and publication.
Indeed, as has been judicially observed;
The right to criticize public men and matters includes the freedom to speak foolishly and without moderation
Per Sharvananda CJ in Dissanayake v Sri Jayawardenpura University, [1986]2, SLR, 254
Unconstitutional Nature of the Relevant Emergency Regulation
The pertinent emergency regulations in this regard are as follows;
-
Regulation 18 (1) (vi) of the EMPPR 2005 which enables the Secretary to the Minister of Defence to make an order imposing upon a person restrictions on association or communication, and in relation to dissemination of news or the propagation of opinions, to prevent that person acting in any manner prejudicial to national security, public order or the maintenance of essential services;
-
Regulation 27 of the EMPPR 2005 which makes it an offence to distribute leaflets that are prejudicial to public security, public order or essential services.
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Regulation 28 of the EMPPR 2005 which states: No person shall, by words of mouth or by another other means whatsoever, communicate or spread any rumour or false statement which is likely to cause public alarm or public disorder.
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Regulation 33 of the EMPPR 2005 which makes it an offence to possess any book, document or paper containing any writing or representation which is likely to be prejudicial to the interests of national security or to the preservation of public order or which is likely to arouse, encourage or promote feelings of hatred or contempt to the Government, or which is likely to incite any person directly or indirectly to take any step towards the overthrowing of the Government [
]
The above regulations under which the threatened action may be taken, are phrased in so broad terms as to render them unconstitutional, also amounting to a form of prior censorship which is greatly inimical to free speech.
In several decisions, (most notably, Joseph Perera Vs The Attorney General (1992) 1 Sri LR 199, 230), the Supreme Court has maintained that the right to initiate a responsible and responsive communication of public interest issues assumes crucial importance in times of national emergency and civil unrest where any restrictions imposed on the right to free speech and expression in the interests of national security can only be to the extent strictly required by the exigencies of the situation. Therefore 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.
Further, the Court has held that while it is acknowledged that the constitutional rights of freedom of speech and expression, including publication and freedoms of assembly and association could be restricted by the executive in the interests of national security or public order under Article 15(7) of the Constitution this provision is counterbalanced by Article 155(2) of the Constitution which places a limitation on the executive to make regulations inconsistent with fundamental rights. Whatever regulations that are made by virtue of Article 15(7) must be intra vires regulations and must therefore show a proximate or reasonable connection between the nature of the speech prohibited and the ground on which it is prohibited.
The principle is that any law which confers unguided and unfettered discretion upon an executive authority without narrow objectives and definite standards to guide such authority is unconstitutional and states that it is of fundamental importance that such a law should not be incomplete and should express and contain within itself all the vital and necessary components relating to its operation, including the precise restrictions that it seeks to impose. The above principles have been laid down in Sri Lankan jurisprudence as well as by the Courts in other jurisdictions as for example, New York Times C. Vs U.S. (1971 403 US 713), Organization for a Better Austin Vs Keefe (1971 402 US 415),Venugopal & Ors(AIR 1954 Madras 901) and In Himat Lal, (Ahemedabad AIR 1972 SC 87 1973 2 SCR 226 )
The International Legal Position
These principles are also recognised internationally and are embodied in the International Covenant on Civil and Political Rights to which Sri Lanka is a signatory. The aforesaid principles have been further elaborated in a definitive study undertaken by a group of experts in international law, national security and human rights in October 1995 at the University of the Witwatersrand, South Africa and known as the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, (the Johannesburg Principles).
Jurisprudence to this effect has solidified into a comprehensive principle of international law that information or ideas concerning matters of public interest, or communicated in the context of a political debate are to be afforded special protection. (Lingens v. Austria, Judgement of 8 July 1986, Series A no. 103, para. 42; Oberschlick, Judgment of 23 May 1991, Series A no. 204, paras. 57-61).
The freedom of publication and also expression & information has been held to basically prohibit a Government from restricting a person from receiving (legitimate) information that others may wish or may be willing to impart to him (Leander v Sweden, Judgment of 26 March, 1987, Series A. No 116, 9, EHHR 433).
These legal principles are applicable wholesale to the facts of the present case which amounts to restricting the rights of the persons interrogated and threatened with action under emergency from disseminating legitimate action to the public.
