007-SLLR-SLLR-1996-1-FERNANDO-V.-THE-SRI-LANKA-BROADCASTING-CORPORATION-AND-OTHERS.pdf
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FERNANDO
V.
THE SRI LANKA BROADCASTING CORPORATION AND OTHERS
SUPREME COURT.
FERNANDO, J.
DHEERARATNE, J. ANDWIJETUNGA, J.
S.C. APPLICATION NO. 81/95.
22, 23 and 30 JANUARY, 1996.
Fundamental Rights – Right of freedom of speech and expression includingPublication-Constitution, Article 14 (1) (a)-Stoppage of Non-FormalEducation Programme (NFEP).
For many years the Sri Lanka Broadcasting Corporation’s (SLBC’s)Education Service (originally, the School Service) broadcast educationalprogrammes intended primarily for students in the formal education systembased on school curricula and largely exam-oriented. In June 1994 theSLBC launched the Non – Formal Education Programme (NFEP) of itsEducation Service dealing with a variety of topics such as human rights,ethnicity, sociology, legal and medical issues, arts and culture, politics,current affairs, the environment, behavioral science, history, archaeology,literature, drama, women’s rights and pre-school teacher training. It was nota collection of irregular, sporadic or infrequent programmes but planned tocover a long period with a regular schedule of programmes.The participationwas not restricted to SLBC staff and specially invited experts and resourcepersons, but extended to listeners as well. The petitioner had taken part indiscussions on several programmes concerning current affairs, human rightsand ethnic issues and had also asked questions as a listener from variousresource persons live on several programmes.
By a Cabinet decision taken on 26.10.94 the new Government approved a“Statement on P. A. Government’s Media Policy” which inter alia recognizedthe media's right to expose corruption and misuse of power, widened thescope of the constitutional guarantee of freedom of expression by includingthe Right to Information, assured to the electronic media the right of gatheringand disseminating news, offered government’s co-operation to media andJournalists’ Associations to work towards formulating a charter that will setacceptable parameters of news programmes in all electronic media, grantedmedia personnel in the state-sector media institutions the freedom to decidethe content of news bulletins and news feature programmes, based primarilyon the newsworthiness of events and undertook to amend or rescind therelevant legislation and Standing Orders of Parliament.
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This Cabinet decision was conveyed on 1.11.94 to the Secretary, Ministry ofInformation, Tourism and Aviation for circulation by him to the relevantofficials for implementation. By a circular dated 14.12.94 the 2nd respondent(Chairman, SLBC) forwarded copies to all SLBC directors and heads ofdepartments and requested them to comply.
Tilak Jayaratne who had been the Controller of the Education Service since1988 appeared to have been principally responsible for designing andoperating NFEP. His qualifications and competence for the job was not inissue in the proceedings, nor the costs. The NFEP broadcasts wereacknowledged to be of a high standard.
According to the petitioner on 6.2.95 about 6.30 a.m. an NFEP programmeentitled “Kamkaru Prajawa” (The Working Community) was on the air. Theprogramme included a telephone interview with the Hon. Minister C. V.Gooneratne. In the programme several workers of Kundanmals Ltd., wereinterviewed in connection with a strike and the promises given by theauthorities to the workers. The Hon. Minister of Industries (Mr. C. V.Gooneratne) said that this did not come within his purview but only the Hon.Minister of Labour. Then the workers stated that the Hon. Minister of Labourhad stated that he was not responsible and it was the Minister of Industrieswho was responsible. Workers said that before the General Election 1994,the Hon. Minister Gooneratne came to the work place and promised tosolve all the problems but now he had forgotten everything. There wasindication that the Hon. Minister of Labour was also to be interviewed butsuddenly the programme was stopped and there was an announcementthat songs would be broadcast thereafter. There was not a single NFEPbroadcast after this and the NFEP virtually came to an end.
A few weeks earlier on 1.1.95 the post of Director Education Service hadfallen vacant and Tilak Jayaratne was appointed Acting Director. On 4.2.95it was announced on SLBC news bulletin that Nelson Jayaweera had beenappointed to cover the duties of the Director, Education Service and anotherofficer had been appointed as Acting Controller. Some of the staff of theEducation Service submitted a written protest on 16.2.95. Thereafter byletter dated 17.2.95 Nelson Jayaweera was released from his duties in theEducation Service and the Education Service was placed directly under the3rd respondent (Director-General, SLBC).
By a notice dated 18.2.95 the 3rd respondent directed that only formaleducation programmes be broadcast, that the responsibility for the NFEPbe vested in the Directors in charge of the National Service and the newsand that the non-formal programmes be broadcast on the National Service.By another notice issued on the same day, Tilak Jayaratne was directed,
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until 20.2.95 to broadcast songs during the periods scheduled for the NFEPprogrammes and a decision regarding those programmes would be takenafter 21.2.95. On 3.3.95 Tilak Jayaratne was directed, because his sectionwas no longer producing NFEP programmes, to retain two cassetterecorders and return the remaining fourteen to the stores. By letter dated6.3.95 the 3rd respondent informed the Director-General of the NationalInstitute of Education that the Education Service of the SLBC has beenconfined to formal education programmes and the non-formal programmeshave been brought under the control of the Language Directors. Thepetitioner alleged that the changes whether by way of “restructuring andreformatting” or otherwise were so drastic that there remained only apretence that the NFEP was still being broadcast.
Justification for the discontinuance of the NFEP was based in four grounds:
The irrelevance of the subject matter of three programmes: PasuVimasuma, a review of the NFEP itself, “Puvath Adahorawa” which dealtwith the speculation about Lionel Fernando's resignation from the fourmember Government delegation to the 1995 Peace Talks with LTTE and the“Subharathi” programme asking for the views of the public on thebroadcasting policy of the Education Service, as well as the “KamkaruPrajawa” programme.
The possible liability of the SLBC and its top management for defamation,civil and criminal, because of the content of the programmes.
The criticisms (contained in “Pasu Vimasuma” of the Programme, and ofthe SLBC, its administration, and its top management, were irrelevant,inapproriate and unacceptable; further the staff were using the NFEP to airtheir own views, and their requests for listener support for NFEP were out ofplace.
Public discontent with the NFEP, as indicated by the complaints received.Held:
All the four reasons given by way of justification, are without merit.
Article 14(1 )(a) of the Constitution is not to be interpreted narrowly. Notonly does it include every form of expression, but its protection may beinvoked in combination with other express guarantees (such as the right toequality); and it extends to and includes implied guarantees necessary tomake the express guarantees meaningful. Thus it may include the right toobtain and record information, may be by means of oral interviews,
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publications, tape-recordings, photographs and the like, and, arguably, itmay even extend to a privilege not to be compelled to disclose sources ofinformation, if that privilege is necessary to make the right to information“fully meaningful”. Likewise other rights may be needed to make the actualexercise of the freedom of speech effective: rights in respect of venues,amplifying devices, etc.
(Semble per Fernando, J : “I doubt, however, that it includes the right toinformation simpliciteF.)
The freedom of speech of the petitioner, qua participatory listener hasbeen infringed, because the stoppage of the NFEP prevented furtherparticipation by him.
Cases referred to:
Ekanayake v. Herath Banda S.C. 25/91 SCM of 15.12.91.
Secretary, Ministry of Information v. Cricket Association of Bengal (1995) 2SCC 161, 292.
Red Lion Broadcasting Co., v. F.C.C. (1969) 395 US 367, 376 (Red Lion
Case).
Prabha Dutt v. Union of India, AIR 1982 S.C. 6.
Leander v. Sweden 26 March 1987, Series A No. 116 (European Court ofHuman Rights).
Open Door Counselling and Dublin Well Woman Centre v. Ireland, 29October 1992, Series A No. 246 (European Court of Human Rights)
N.B. Cases 5×6 cited in “The Article 19 Freedom of Expression ManualAugust 1993).
Stanley v. Georgia 394 US 557.
Martin v. City of Struthers 319 US 141, 143.
Griswold v. Connecticut (1965) 381 US 479.
Joseph Perera v. AG (1992) 1 Sri LR 199.
Visuvalingam v. Liyanage (1984) 2 Sri LR 123, 132.
Narayanan v. Kerala AIR 1973 Kerala 97.
Lamont v. Postmaster General (1969) 331 US 301, 308.
PETITION complaining of infringement of the fundamental right of freedomof speech.
R. K. W. Goonesekera with J. C. Weliamuna for the petitioner.
K. C. Kamalasabayson, DSG with S. Gamlath SSC and Chanaka de SilvaSC for respondents.
Cur. adv. vult.
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30 January, 1996.
FERNANDO, J.
The Petitioner is a retired teacher: since his retirement in 1990, hehas been the Organizing Secretary of the CeylonTeachers’ Union; andalso the National Coordinator for the Movement for Free and Fair Elec-tions which monitored the 1994 General and Presidential Elections.The Petitioner complains that his fundamental right of freedom of speechand expression, including publication (which I will refer to as the “free-dom of speech”), guaranteed by Article 14(1) (a) of the Constitutionwas infringed by the 1 st Respondent, the Sri Lanka Broadcasting Cor-poration (“SLBC”), and the 2nd to 4th Respondents (the Chairman, theDirector-General and the Deputy Director-General (Programming), re-spectively, of the SLBC), by the sudden stoppage of the Non-FormalEducation Programme (“NFEP”) of the SLBC’s Education Service.
THE FACTS
For many years the SLBC’s Education Service (originally, the SchoolService) broadcast educational programmes, intended primarily for stu-dents in the formal education system: they were based on the schoolcurricula and were, largely, exam -oriented. In June 1994 the SLBClaunched the NFEP as part of its Education Service, on a new chan-nel; it was aimed at a different section of the community; and it con-sisted of a series of programmes, dealing with a very wide range oftopics, such as human rights, ethnicity, sociology, legal and medicalissues, arts and culture, politics, current affairs, the environment,behavioral science, history, archaeology, literature, drama, women’srights, and pre-school teacher training. While the topics themselvessuggest a greater emphasis on practical matters relevant to every-daylife and issues of general interest, their broad scope reflects the widthof the target group.
The NFEP was estimated to cost Rs. 4.5 million annually, and theRespondents have not suggested that there was any difficulty in ob-taining those funds. Tilak Jayaratne who had been the Controller of theEducation Service since 1988, and had followed training courses oneducational broadcasting, appears to have been principally responsi-ble for designing and operating the NFEP, with the assistance of ateam of permanent and casual staff. At the hearing, the Respondents
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did not question the qualifications, competence and experience ofTilakJayaratne and his team.
Two other aspects of the NFEP need to be stressed. It was not acollection of irregular, sporadic or infrequent programmes, but wasplanned to cover a long period with a regular schedule c:programmes.Thus the schedule for the whole of 1995 was availableearly in 1995, and provided for almost 24 hours broadcasting (in Sinhala)per week: approximately 6 hours each on Sundays, Mondays, Tues-days, and Wednesdays. There were similar programmes in Tamil onSaturdays, Thursdays and Fridays. A second important feature wasthat participation was not restricted to SLBC staff and specially in-vited experts and resource persons, but extended to listeners as well.The Petitioner averred that he had taken part in discussions in severalprogrammes concerning current affairs, human rights and ethnic is-sues, and had also asked questions as a listener from various re-source persons live on several programmes. That was not denied bythe Respondents.
The NFEP commenced before the August 1994 ParliamentaryGeneral Election, and continued thereafter. By a Cabinet decision takenon 26.10.94 the new Government approved a “Statement on PA Gov-ernment’s Media Policy”, which included the following:
“The subject of media freedom has gained considerable importancein the past few years, particularly due to the direct and indirectrestrictions imposed on the media by the previous government,and the new broad-based activities by journalists to expand thescope of media freedom in the country …
… The threats levelled in the recent past against journalists aswell as media institutions have largely emanated in response totheir attempts to expose and to bring to the notice of the publiccorruption and abuse of political power. In order to eradicate onemajor threat to media freedom, our government recognizes themedia’s right to expose corruption and misuse of power.
Freedom of Expression: In order to ensure media freedom, thefollowing measures will be immediately taken:
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Freedom of Expression is already guaranteed to all media throughthe present Constitution, and it shall be our endeavour to carry out allreforms with regard to the media in keeping with this salutary provisionin the Constitution. In future amendments to the Constitution, the gov-ernment shall seek to widen the scope of this constitutional guaranteeby including the Right to Information.
All electronic media will be granted the right of gathering anddisseminating news. We urge the state-owned and private electronicmedia to present balanced coverage of news, exercising freedom withresponsibility. The government will (extend) its cooperation to mediaand journalists' associations to work towards formulating a charter thatwill set acceptable parameters of news programmes in all electronicmedia.
Media personnel in the state-sector media institutions will havethe freedom to decide the content of news bulletins and news featureprogrammes, based primarily on the newsworthiness of events. Wewill not use state-owned media for partisan political propaganda.
In order to rescind or amend where necessary, the Governmentwill draft legislation, reforming the Press Council Law, the Official Se-crets Act, Parliamentary Powers and Privileges Act, and the existinglaws relating to Cabinet secrets and contempt of court so that thefreedom of expression as well as the public right to information con-cerning the spheres of governmental activity (will) be ensured.
Priority will be given to rescinding the existing Parliamentary Privi-leges Act and replace it with a new Act. The provisions of the new Actwill not be an obstacle to free and fair reportage of the proceedings ofParliament; it will also transfer to the higher judiciary the responsibilityof inquiry and punishment for any breaches of parliamentary privilege.We will also seek to amend the Standing Orders of Parliament to permitjournalists to cover the proceedings of Parliamentary ConsultativeCommittees.”
This Cabinet decision was conveyed on 1.11.94 to the Secretary,Ministry of Information, Tourism and Aviation, for circulation by him tothe relevant officials for implementation. By a circular dated 14.12.94,
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the 2nd Respondent forwarded copies to all SLBC directors and headsof departments, and requested them to comply. By letter dated 27.12.94the Minister appointedTilak Jayaratne as Chairman/Member of a Com-mittee established to implement one aspect of that decision, by mak-ing recommendations to improve the economic conditions and statusof journalists.
On 6.2.95 the NFEP broadcasts commenced at 5.30 a.m. with aprogramme entitled “Subharathi” (which, the Petitioner says, means“the voice that carries knowledge”). According to a transcript (2R7)produced by the Respondents, remarks were made to the followingeffect: the NFEP was of a high standard, and had set an example tothe electronic media; its quality was largely due to the suggestionsand criticisms of listeners; it had retained its independence, both be-fore and after the new Government came into power; the producers ofthe NFEP were not prepared to turn back from that path; however, nowthere were obstacles to progress; should the producers proceed inde-pendently as before, or should they be puppets of the management?Listeners were invited, if they could, to convey their views on twospecified telephone lines which were kept open.
Thereafter, says the Petitioner:
“On 6-2-95, at or about 6.30 a.m., I was listening to the EducationService and there was a live presentation with short recorded portionson tape.The programme was called “Kamkaru Prajawa” (“The WorkingCommunity”) which included a telephone interview with the Hon. Minis-ter C. V. Gooneratne. To the best of my knowledge, in the said pro-gramme, several workers of the Kundanmals Ltd. were interviewed inconnection with a strike and the promises given by the authorities tothe workers. The Hon. Minister of Industries stated (that) he is notresponsible for labour matters as this did not come under his purviewbut only the Hon. Minister of Labour.Then the workers stated that theHon. Minister of Labour had stated that he was not responsible and itwas the responsibility of the Minister of Industries who is responsiblefor (the) labour which falls within his purview. Workers said that beforethe General Election 1994, the Hon. Minister Gooneratne came to thework place and promised to solve all the problems but now he hasforgotten everything. Then the Minister said that anyway now it is the
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responsibility of the Hon. Minister of Labour.There was {sic) indicationthat the Hon. Minister of Labour was also to be interviewed but sud-denly the programme was stopped and there was an announcementthat songs would be broadcast from then onwards. On that day therewas not a single NFEP broadcast until the close of transmission in themorning session.”
These averments were not denied by the Respondents. The Peti-tioner adds that thereafter the NFEP virtually came to an end:
“. . . almost all the programmes with quality and editorially inde-pendent programmes are not broadcast now. In one programme, legalcounselling was broadcast but important issues in human rights or anycontroversial legal issues were not dealt with. Although a very fewprogrammes are broadcast in the nature of Non Formal Programmes,there is no quality, intellectual discussion or people’s participation…(the) aforesaid programmes are broadcast only in order to please theGovernment and to give a biased, one-sided picture to the people andto pretend that the NFPs are still broadcast."
A few weeks earlier, the post of Director, Education Service, hadfallen vacant on 1.1.95. On 11.1.95Tilak Jayaratne was appointed asActing Director. According to the Petitioner, it was announced on theSLBC news bulletin on 4.2.95 that Nelson Jayaweera had been ap-pointed to cover the duties of the Director, Education Service, and thatanother officer had been appointed as Acting Controller. Some of thestaff of the Education Service submitted a written protest on 16.2.95.Thereafter, by letter dated 17.2.95 Nelson Jayaweera was releasedfrom his duties in the Education Service, and the Education Servicewas placed directly under the 3rd Respondent, Director-General, SLBC.In his affidavit, the 2nd Respondent claims that when the post of Di-rector fell vacant, “in accordance with the usual practice the next sen-ior officer, in this case Mr. Jayaratne, was requested to cover the du-ties of the Director until a suitable replacement was appointed"; noexplanation was ventured, however, as to how Tilak Jayaratne wassuperseded – not by a “replacement” – but by another officer also “cov-ering up duties”, and how that officer was then released without a “suit-able (permanent) replacement”.
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By a notice dated 18.2.95 the 3rd Respondent directed that onlyformal education programmes be broadcast, that the responsibility forthe NFEP be vested in the Directors in charge of the National Serviceand the News, and that the non-formal programmes be broadcast onthe National Service. By another notice issued the same day, TilakJayaratne was directed, until 20.2.95, to broadcast songs during theperiods scheduled for the NFEP programmes, and he was also toldthat a decision regarding those programmes would be taken after21.2.95. On 3.3.95Tilak Jayaratne was directed, because his sectionwas no longer producing NFEP programmes, to retain two cassetterecorders and to return the remaining fourteen to the main stores. Byletter dated 6.3.95, the 3rd Respondent informed the Director Generalof the National Institute of Education that the Education Service of theSLBC:
“has been confined to formal education programmes and the non-formal programmes have been brought under the control of theLanguage Directors. These arrangements will enable the EducationService to devote more time for planning their programmes inconsultation with you.”
Despite this the Respondents claim that, apart from restructuringand reformatting certain programmes, no changes have been made inthe Non-Formal Education programmes (except for the changes duringthe period up to 20.2.95). They have produced neither the schedule ofbroadcasts nor any other documents showing the nature and contentof the programmes broadcast after 20.2.95. Thus they have failed totender material to rebut the Petitioner’s allegations that the changes(whether by way of “restructuring and reformatting”, or otherwise) wereso drastic that there remained only a pretence that the NFEP was stillbeing broadcast.
THE CONTENTIONSMr. Goonesekea contended that the NFEP had been stopped arbi-trarily and without reason; and that thereby the Petitioner’s fundamen-tal right of freedom of speech had been infringed. His principal submis-sion may be summarized thus: freedom of speech is the right of oneperson to convey views, ideas and information to others; communica-
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tion is the essence of that right; such communication necessarily pos-tulates a recipient, because without a recipient the right is futile; andtherefore freedom of speech implies and includes the right of the re-cipient to receive the views, ideas or information sought to be con-veyed. So, he argues, the Petitioner as a regular listener to the NFEPhad the freedom of speech to receive whatever was broadcast on theNFEP, and when it was suddenly stopped that freedom was impaired.His subsidiary contention, advanced with noticeably less enthusiasm,was that the petitioner was not simply a listener, but a participatorylistener – because he was not just passively receiving information, butwas himself actively communicating views, ideas and information bymeans of the NFEP; and that stopping the NFEP infringed his right asa participatory listener, and thereby his freedom of speech.
Mr. Kamalasabayson, DSG, for the Respondents, submitted thatit was for valid reasons that the NFEP had been stopped on 6.2.95,and that in any event it had not been permanently stopped, but hadlater been resumed.
Mr. Goonesekera strenuously denied that there been any such re-sumption, stating that whatever was being broadcast now was com-pletely different in character to the NFEP. Mr. Kamalasabayson admit-ted that, as noted earlier, the Respondents had submitted no evidenceto prove the resumption of the NFEP.
On the legal issue, Mr. Kamalasabayson contended that if a thirdparty had caused the stoppage of the broadcasts, a listener mighthave been able to complain that that infringed his freedom of speech;but a listener had no such right where the stoppage was the decisionof the broadcaster itself: for if a person chose not to speak, how, heasked, could any one else claim a right to listen?The first submissionseemed to concede a fundamental right to a mere listener, and so weasked him whether (where a third party stopped the broadcasts) if thebroadcaster himself did not complain of the infringement, a listenerhad an independent right to receive information, which would entitlehim to complain of that stoppage? He hesitated to concede such aright, and it thus becomes necessary to consider whether a listenerdoes have any such right.
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JUSTIFICATION FOR STOPPINGTHE NFEPBoth Counsel agreed that if the Respondents were justified in stop-ping the NFEP on 6.2.95, no question of infringement of fundamentalrights would arise. Mr. Goonesekera submitted that it was because ofthe “Kamkaru Prajawa” programme that the Respondents had acted,and that, he said, afforded no justification whatever for the stoppage.
Mr. Kamalasabayson contended that although the stoppage tookplace midway through the “Kamkaru Prajawa” programme, it was be-cause of other, more weighty, reasons connected with previous pro-grammes, that the decision was taken to stop the NFEP. In his affida-vit the 2nd Respondent accepted the responsibility for that decision,which he took on 6.2.95 soon after the contents of the “Subharathi”programme had been brought to his notice. He urged the followingmatters in justification:
Some of the NFEP programmes were ceasing to be educationalin character; two were mentioned, namely, “Pasu Vimasuma”(“Review") of 15.1.95, and “Puvath Adahorawa” (“News Half Hour”)of 5.2.95, and transcripts were produced as 2R1 and 2R2.
This was due partly to the format of the said programmes, andpartly to the fact that the general public were allowed direct accessby telephone to the broadcasts.
The said programmes were being used to air the views of certainstaff members on irrelevant matters, relating to SLBCadministration.
Complaints were received, and three of these (dated 25.11.94,2.12.94, and 5.12.94) were produced.
The programme format and implementation exposed the SLBC tocriminal and/or civil liability, and embarassment.
Certain steps were proposed for the restructuring and reformattingof the said programme – what these steps were and the processof consultation were not disclosed; a memorandum was preparedseeking Cabinet approval – this was not produced.
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Certain sections of the Education Service appeared to opposethe above proposals, but without endeavouring to meet the 2ndRespondent, they sought to solicit support from the public on amatter which was purely internal to the SLBC. Tilak Jayaratnewent to the extent of sending a questionnaire, dated 2.3.95, inhis capacity as Controller, directing that answers be sent to anoutside organization.
The “Subharathi” programme, broadcast on 6.2.95, asked thepublic for their views on the broadcasting policy of the EducationService.
The contents of the two programmes mentioned (2R1 and 2R2)may be summarized as follows. “Pasu Vimasuma” was a review of theNFEP itself. Reference was made to political pressures before the1994 General Election,and the efforts made to establish a tradition ofa free media; the high expectations after the new Government waselected; the exposure of the former regime's wrongdoings, and espe-cially violations of the human rights of the people; these werecommended by the new management; when some officials tried tostop certain programmes, the Free Media Movement opposed this,and the Minister agreed to the latter’s requests; the PA manifesto onMedia Freedom was converted from election promise to operative law.Specific complaints were made that necessary facilities were not pro-vided: a guest speaker had not been provided with transport, althoughpromised; and publicity for the NFEP had not been given on otherSLBC broadcasts, despite approval by the Chairman. A programmewhich provided for listener participation was stopped. Finally, it wassaid that although the Government desires media freedom, politicalappointees try to suppress it.
“Puvath Adahorawa” dealt with speculation about Lionel Fernando’sresignation from the four-member Government delegation to the 1995Peace Talks with the LTTE. Because no reasons had been given, therewas wide speculation why he had resigned; some said that he hadrefused to proceed with talks under the LTTE flag; others claimed thatthe LTTE had wanted the Government to remove him from the delega-tion, and that he resigned because the Government did not include himin the second round; it was also said that he resigned on account of
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allegations first heard over LTTE Radio; and it was believed by somethat there must have been some substantial reason for his conduct,because he resigned although the President had wanted him to with-draw his letter of resignation. The comment was also made that thesuccess of the Talks depends on the acceptance of the proposals byboth sides, and not on the presence of a particular person, and so hisresignation would not affect the outcome.
The Respondents do not suggest that there were constraints inrespect of money, time, equipment or personnel which required thediscontinuance of the NFEP.Their claim of justification has four com-ponents:
1 .The irrelevancy of the subject-matter of three programmes (2R1,2R2 and 2R7), as well as the “Kamkaru Prajawa” programme.
The possible liability (of the SLBC and its top management) fordefamation, civil and criminal, because of the content of pro-grammes.
The criticisms (contained in “Pasu Vimasuma") of the Pro-gramme, and of the SLBC, its administration, and its top man-agement, were irrelevant, inappropriate and unacceptable; further,the staff were using the NFEP to air their own views, and theirrequests (in 2R7) for listener support for the NFEP were out ofplace.
Public discontent with the NFEP, as indicated by the com-plaints received. I
I find all these contentions to be without merit. If the reason forLionel Fernando’s resignation had not officially been disclosed, thepublic had an interest in knowing that reason. On the other hand, theGovernment may have had some justification for not disclosing it, atthat particular point of time. But so long as there were no legal restric-tions – and the Respondents have not referred us to any – on the dis-closure or the discussion of that reason, public discussion was legiti-mate. Likewise, industrial unrest, its causes and its resolution, werematters of public interest, especially to workers who must have been
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an important target group of the NFEP: and as I observed (although ina different context in Ekanayake v Herath Banda,0) “every concernedcitizen would have discussed these issues with great interest and agi-tation”. Indeed, the Government’s Media Policy amply justified suchprogrammes. As for Mr. Kamalasabayson’s submission that it was forthe management of the NFEP to determine what was relevant to non-formal education, and that there was no point in ascertaining the ideas,the views and the needs of the “student”, by way of a review of theNFEP, that is a narrow and out-dated view of education, especially ofnon-formal or adult education. However competent the “teachers” mighthave been, it was useful for them to know the shortcomings of theNFEP, what improvements were possible, and the needs of the lis-tener, in order to plan more fruitfully for the future.
Mr. Kamalasabayson has not been able to show us anything evenfaintly defamatory in the three programmes specifically mentioned (i.e.2R1,2R2 and 2R7), or in “Kamkaru PrajaweP, or otherwise; the possi-bility of legal action is thus mere speculation,and in any event it hasnot even been suggested that there was any difficulty in scrutinizingthe script of programmes before broadcast.The 2nd Respondent's al-legation that there were dangers in the public being allowed direct ac-cess by telephone to the NFEP broadcasts, is unacceptable: the Peti-tioner stated in his counter-affidavit that such calls were subject toscreening before broadcast, and Mr. Kamalasabayson conceded thisat the hearing.
The three programmes do contain some criticisms. The Respond-ents have not averred that these are untrue or exaggerated, and itmust be presumed that what was said was factually correct.Their Coun-sel says that the SLBC could not allow itself to be criticised in its ownbroadcasts. The criticisms were not something irrelevant, but relatedto matters connected to the success of the NFEP. What is more, thecriticisms were restrained in language and balanced in content: thusthe Chairman was commended for his positive response, while subor-dinates who failed to comply with orders from the top were criticised.Mr. Kamalasabayson argued that these issues should have been raisedinternally. However, the Respondents have not averred that this wasnot done; and in any event such a default would, at most, have justi-fied a reprimand to the officer concerned but not the stoppage of the
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whole NFEP. As to its right to stifle criticism of itself on its own broad-casts, it is well to remember that the media asserts, and does nothesitate to exercise, the right to criticise public institutions and per-sons holding public office; while, of course, such criticism must bedeplored when it is without justification, the right to make and publishlegitimate criticism is too deeply ingrained to be denied. Here, too, it isrelevant to note that the Government’s Media Policy was intended toencourage criticism, in the public interest, in order to expose short-comings. If nothing else, the right to equality requires that the mediaitself is not immune from justifiable criticism, internally and externally.And in the context of broadcasting, the observations of the SupremeCourt of India, in Secretary, Ministry of Information v Cricket Associa-tion of Bengal,® are apposite:
"Broadcasting media by its very nature is different from press.Airwaves are public property … it is the obligation of the State … toensure that they are used for public good.”
The frequencies available for television and raido broadcasts areso limited that only a handful of persons can be allowed the privilegeof operating on them (cf. Red Lion Broadcasting Co. vF.C.C.®) Thosewho have that privilege, including the State, are therefore subject to acorrespondingly greater obligation to be sensitive to the rights and in-terests of the public.
I also cannot accept the 2nd Respondent’s reference to the ques-tionnaire which Tilak Jayaratne sent as being any justification for theconduct of the Respondents.That was sent only on 2.3.95, and couldnot have constituted justification for the two decisions taken long be-fore that date: to remove Tilak Jayaratne from the post of Acting Direc-tor, and to stop the NFEP.
The three complaints produced were to the effect that while mediafreedom was necessary, yet there should be some limit to criticismsof the Government, the SLBC and high officers. As I have pointed out,the criticisms were far from excessive.
In any event, all these matters – irrelevancies, possible legal liabil-ity, criticisms and complaints – should have been communicated to
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Tilak Jayaratne and his team; if he could not explain or justify them,he should have been reprimanded and directed to avoid repetition; andif he declined to do that, the offending programmes should have beenreplaced. The baby should not have been thrown out with the bathwater. The undue haste with which the 2nd Respondent acted sug-gests that the stoppage was not bona fide.
Different considerations might have arisen if the NFEP had beenjustifiably stopped, e.g. with proper notice, or in response to listeneropinion, or even simply discontinued after the expiry of the currentschedule. I express no opinion on that aspect of the case. I hold thatthe sudden and arbitrary stoppage of the NFEP was not justified, and,if done without the consent of those responsible for its production,would have amounted to an infringement of their freedom of speech,besides being inconsistent with Government policy on MediaFreedom.But those persons have not complained, and I make no find-ing in respect of their rights.The question is whether the Petitioner cancomplain, qua listener.
FREEDOM OF SPEECH AND EXPRESSION, INCLUDINGPUBLICATION
There are dicta in decisions, both local and foreign, which appearto support Mr. Goonesekera’s submission that mere listeners can com-plain, because the freedom of speech includes the right of the recipi-ent to receive information. It is necessary to examine these decisionsin order to ascertain their true ratio decidendi, and their relevance tothe interpretation of Article 14(1) (a) of our Constitution.
The first group of decisions deals with a person’s right to receiveinformation, which is either related to or necessary for the exercise ofhis own freedom of speech. Prabha Dutt v Union of India,w seems tofall into this category. The Court upheld the right of journalists to inter-view prisoners under sentence of death, who were willing to be inter-viewed, thus acknowledging their right to obtain information, throughthe interviews (cf. also Red Lion Broadcasting Co v F.C.C., {supra))but it by no means follows that there is a right to information simpliciter(i.e., for one’s own edification only), and not intended to facilitate theexercise of the freedom of speech.
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Other decisions which have upheld the right to receive informationare not helpful because they deal with Constitutional provisions which- unlike ours – expressly recognise that right.Thus the European Courtof Human Rights has held that the right to receive information “basi-cally prohibits a Government from restricting a person from receivinginformation that others may wish or may be willing to impart to him”(Leander v Sweden,(S> and Open Door Counselling and Dublin WellWoman Centre v Ireland,(6) both cited in “The Article 19 Freedom ofExpression Manual”, August 1993). In the latter case the Court notedthat family planning counsellors wished to impart, and women wishedto receive, information about where to obtain abortions outside Ire-land. An injunction which prohibited counsellors from giving such infor-mation was held to violate Article 10(1) of the European Convention,which expressly provides:
“Everyone has the right to freedom of expression. This right shallinclude freedom … to receive and impart information.”
A third category of decisions deals with rights of listeners to replyto adverse comments made about them; thus in Red Lion Broadcast-ing Co v F.C.C., {supra) where a listener had been subjected to a per-sonal attack by a guest speaker, it was held that the broadcastingstation was bound to provide him with the tape, a transcript, or a sum-mary of the broadcast, and time to reply, free of charge. It was ob-served that:
“It is the right of the public to receive suitable access to social,political, esthetic, moral and other ideas and experiences which is cru-cial here. That right may not constitutionally be abridged either by Con-gress or by the FCC” (at p.390)
The decision, however, did not turn upon the broad principle of alistener’s right, passively, to receive information, but was based ontwo other rights: his right to equality, and his right to information neededto make his freedom of speech effective. The broadcasting station hadpermitted the guest speaker time to attack him; it was therefore boundto treat him equally; equal treatment demanded equal time to reply,and a reply through the very same medium; and that reply was anexercise of his freedom of speech. In order to exercise that freedom
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effectively, he needed information about the attack, and therefore hehad a right to the tape or a transcript. So that case did not involve justthe right to information, but a right to information ancillary to the free-dom of speech.
Fourthly, there are decisions, under Constitutional provisions similarto ours, containing statements suggesting that listeners (or readers)do have a right to receive information. Thus in Stanley v Georgia,(7)the Supreme Court set aside a State obscenity statute insofar as itpenalised merely private possession of obscene matter:
“It is now well established that the Constitution protects the rightsto receive information and ideas. This freedom (of speech andpress).. . necessarily protects the right to receive … Martin vCity of Struthers,™… This right to receive information and ideas,regardless of their social worth. . . is fundamental to our freesociety.
Moreover, in the context of this case … that right takes on anadded dimension. For also fundamental is the right to be free,except in very limited circumstances, from unwantedgovernmental intrusions into one’s privacy.”(at p.564)
I find it difficult to treat this as being a decision based on freedomof speech. It seems referable, rather, to the freedom of thought:
“If the First Amendment means anything, it means that a Statehas no business telling a man, sitting alone in his own house,what books he may read or what films he may watch. Our wholeconstitutional heritage rebels at the thought of giving governmentthe power to control men’s minds.” (at p.565; cf. also Griswold vConnecticut,™ “freedom of speech… includes . .. freedom ofthought”).
Sharvananda, CJ. observed in Joseph Perera v AG,m that;
“Freedom of speech and expression consists primarily not onlyin the liberty of the citizen to speak and write what he chooses,but in the liberty of the public to hear and read, what it needs. No
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one can doubt if a democracy is to work satisfactorily that theordinary man and woman should feel that they have some sharein Government. The basic assumption in a democratic polity isthat Government shall be based on the consent of the governed.The consent of the governed implies not only that consent shallbe free but also that it shall be grounded on adequate informationand discussion aided by the widest possible dissemination ofinformation from diverse and antagonistic sources. The crucialpoint to note is that freedom of expression is not only politicallyuseful but that it is indispensable to the operation of a democraticsystem. . .
Public opinion plays a crucial role in modern democracy. Freedomto form public opinion is of great importance. Public opinion, inorder to meet such responsibilities, demands the condition ofvirtually unobstructed access to and diffusion of ideas. Thefundamental principle involved here is the people’s right to know.The freedom of speech guaranteed by the Constitution embracesat the least the liberty to discuss publicly all matters of publicconcern, without previous restraint or fear of subsequentpunishments (Thornhill v State of Alabama).. .The welfare of thecommunity requires that those who decide shall understand them.The right of the people to hear is within the concept of freedom ofspeech.” (at 223-224).
The three Petitioners were arrested while they were taking steps toorganise a meeting; one Petitioner was the intended speaker. The Courtheld that an Emergency Regulation, which was relied on to justify thearrest, was ultra vires Article 12; (by a majority) that the original arrestand detention was not illegal; and that the subsequent detention wasunduly prolonged. There was no finding that their freedom of speechhad been infringed, and thus observations regarding the right to hear,read, and receive information, are obiter.
Finally, there are a few decisions the ratio decidendi of which isthat the right to information simplicitehs part of the freedom of speech.In Visuvalingam v Liyanage.w a newspaper had been banned. Twoapplications were filed by several petitioners who were regular read-ers; one was also a regular contributor to a column, for which he was
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paid.They alleged that the ban violated their fundamental right of free-dom of speech, and also their right to equality (because other newspa-pers had not been bannd, but only subjected to censorship).The DeputySolicitor General had argued that the petitioners had no locus standibecause the order was against the printers, publishers and distributorsof the newspaper, and they alone were entitled to complain. What hadbeen restricted was the right to publish; the right to read flowed frompublication; and there could be no right to read what had not beenpublished.The Petitioners had replied that within the ambit of the free-dom of speech is included the freedom of the recipient of information;in order to give a meaning to the freedom of speech one has of neces-sity to recognise the freedom of the recipient to information, news, andviews.
The Court held that public discussion was important in a democ-racy, and that for its full realisation public discussion demanded therecognition of the right of the person who is the recipient of informa-tion; and said;
“… the fundamental right to the freedom of speech and expressionincludes the freedom of the recipient. Accordingly the Petitionershave a locus standi to seek relief under Article 126. But like allfundamental rights, the fundamental right of the recipient is alsosubject to the same restrictions.”(at p.132)
However, dealing with the merits, the Court held that, in the cir-cumstances, the ban was a lawful restriction on the fundamental rightof the publishers of the newspaper; and accordingly that fundamentalright of the Petitioners, as readers and contributors, had also beenlawfully restricted.
In the strict sense, when A merely reads (or hears) what B writes(or says) in the exercise of B’s freedom of speech, it does not seemthat A receives information in the exercise of A’s freedom of speech,because that would be to equate reading to writing, and listening tospeaking. Accordingly, while preventing A from reading or listeningwould constitute a violation of B’s freedom of speech, it may not in-fringe A’s freedom of speech. A’s right to read or listen is much moreappropriately referable to his freedom of thought, because it is infor-mation that enables him to exercise that right fruitfully.
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I have similar reservations about Narayanan v Kerala,™ The ques-tion was whether restrictions could be placed on books provided to aperson in detention. It was held that while books conducive to instigat-ing violence, disturbing public order, etc., could lawfully be denied,nevertheless other books could not. It was observed that the freedomof speech meant that “a person under detention can continue to giveexpression to his views, indulge in writing books, in reading books,and in learning subjects, and generally in acquiring knowledge”.
In Lamont v Postmaster General,™ the Supreme Court consid-ered the constitutionality of a statute which required the detention anddestruction of mail containing “communist political propaganda” un-less the addressee requested delivery by filling and returning a replycard. Lamont was engaged in publishing and distributing pamphlets. Itwas held that the statute, as construed and applied, was unconstitu-tional because it imposed a limitation (viz. returning the reply card) onthe unfettered exercise of the freedom of speech:
“It is true that the First Amendment contains no specific guaranteeof access to publications. However, the protection of the Bill ofRights goes beyond the specific guarantees to protect fromcongressional abridgement those equally fundamental personalrights necessary to make the express guarantees fully meaning-ful .. . the right to receive publications is such a fundamentalright."(p.308)
However, so far as Lamont was concerned, he was receiving thepublications for the purpose of distribution, and his claim to the publi-cations was thus for the purpose of exercising his freedom of speech.
Lamont’s case was considered together with another similar case(F/xa v Heilberg). Only one judgment was given, and that does notdisclose the purpose for which the plaintiff, Heilberg, wanted the pub-lications. In the absence of a finding that he wanted them for the exer-cise of his freedom of speech, the judgment seems to support a rightto information simpliciter.
Neither these decisions nor the arguments of Mr Goonesekerapersuade me that the right to receive information, simpliciter, is in-cluded in the freedom of speech and expression. Those decisions do
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not set out the process of reasoning by which the conclusion wasreached that the freedom of speech does include the right to receiveinformation, simpliciter.The observations in Stanley v Georgia™sug-gest a better rationale that information is the staple food of thought,and that the right to information, simpliciter, is a corollary of the free-dom of thought guaranteed by Article 10. Article 10 denies govern-ment the power to control men’s minds, while Article 14(1) (a) excludesthe power to curb their tongues. And that may explain and justify dif-ferences in regard to restrictions: e.g. that less restrictions are per-missible in regard to possession of obscene material for private usethan for distribution. In our Constitution no restrictions are permitted inrelation to freedom of thought, while Article 15 permits some on free-dom of speech. But leave to proceed was not sought, and the casewas not presented in the pleadings or at the hearing, on the basis ofArticle 10, and so no finding is permissible on that basis.
CONCLUSIONThe decisions I have considered demonstrate that Article 14(1) (a)is not to be interpreted narrowly. Not only does it include every form ofexpression, but its protection may be invoked in combination with otherexpress guarantees (such as the right to equality, as in the Red Lioncase;(supra) and it extends to and includes implied guarantees “nec-essary to make the express guarantees fully meaningful” (as noted inLamont(supra). Thus it may include the right to obtain and recordinformation,and that may be by means of oral interviews (as in Dutf*)publications (as in Lamont), tape-recordings (as in the Red Lion Case),photographs, and the like; and, arguably, it may even extend to a privi-lege not to be compelled to disclose sources of information, if thatprivilege is necessary to make the right to information “fully meaning-ful”. Likewise, other rights may be needed to make the actual exerciseof the freedom of speech effective: rights in respect of venues, ampli-fying devices, etc. I doubt, however, that it includes the right to infor-mation simpliciter.
However, I have no hesitation in holding that the freedom of speechof the Petitioner, qua participatory listener, has been infringed, becausethe stoppage of the NFEP prevented further participation by him. Hewas thus in the same position as the contributor of a column inVisuvalingani11> and the plaintiff in Lamont.('3)
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The evidence does not disclose any responsibility on the part ofthe 3rd and 4th Respondents for that infringement. I declare that the1 st and 2nd Respondents have infringed the Petitioner’s fundamentalright under Article 14 (1) (a). As for relief, this application was onlytaken up for hearing in January 1996, by which time the 1995 schedulefor the NFEP had expired. Considering also that the question involvedarose for the first time, a direction to resume the NFEP is inappropri-ate. I direct the 1st Respondent to pay the Petitioner a sum of Rs.15,000 as compensation and Rs. 5,000 as costs.
DHEERARATNE, J. -1 agree.
WIJETUNGA, J. -1 agree.
Relief granted.