SUNILA ABEYSEKERA v. ARIYA RUBASINGHE, COMPETENT AUTHORITY AND OTHERS

028-SLLR-SLLR-2000-V-1-SUNILA-ABEYSEKERA-v.-ARIYA-RUBASINGHE-COMPETENT-AUTHORITY-AND-OTHERS.pdf


SUNILA ABEYSEKERA
v.AR1YA RUBASINGHE, COMPETENT AUTHORITY AND OTHERS
SUPREME COURTAMERASINGHE, J.
WADUGODAPITIYA, J. ANDWEERASEKERA, J.
S. C. APPLICATION No. 994/9925th FEBRUARY AND23rd MARCH. 2000
Fundamental Rights – Emergency (Prohibition on Publication andTransmission of Sensitive Military Information) Regulation No. 1 of 1998as amended-Articles I. 12(1), 14(l)(a) and 15(7) of the Constitution-PublicSecurity Ordinance, section 5 (Cap. 40) – Pre censorship.
The Emergency (Prohibition on Publication and Transmission of SensitiveMilitary Information) Regulation No. 1 of 1998 published In GazetteExtraordinary No. 1030/28 of 5th June 1998 as amended on 6U' June1999 prohibited the publication, inter alia, oPany publication pertniningto official conduct, morale, the performance of the Head or any memberof the Armed Forces or the Police Force or of any person authorised bythe Commander – in – Chief of the Armed Forces for the purpose ofrendering assistance in the preservation of national security."
The regulation empowered the Competent Authority to prohibit the useof any press or equipment and to seize the same where there has beena contravention of the regulation through such media.
The said regulations were made by the President under section 5 of thePublic Security Ordinance. (Cap. 40).
The petitioner who was actively engaged in furthering Interracial Justiceand Equality and free and fair elections and interested in the resolutionof the “ethnic conflict and the war in the North" complained that therestriction imposed by the aforesaid regulation deprived her of receivinginformation regarding the war and the ethnic conflict in breach of herrights under Article 10 of the Constitution, the said regulation wasunwarranted, discriminatory and arbitrary and violative of Article 12( 1):and that it was overbroad and vague and therefore not necessary in ademocratic State: hence it was violative of her rights under Article14(l)(a) of the Constitution. The petitioner alleged that the aim of the
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and Others (Amerasinghe, J.)
impugned regulation was to prohibit the publication of information thatwas embarrassing to the Government, rather, than to protect nationalsecurity.
At the hearing of the application counsel for the petitioner did not pressthe alleged infringement in respect of Article 10 of the Constitution.
Held :
The petitioner has failed to show that the genuine purpose ordemonstrable effect of the regulation was to protect the governmentfrom embarrassment or wrongdoing. Nor has she shown that theprotection of national security was a “pretext".
The impugned regulations were framed in reasonably precise termsand confined in their application to defined circumstances. As suchthere was no violation of the petitioner’s rights under Article 12( 1)of the Constitution.
a Per Amerasinghe. J.
"Freedom of speech necessarily protects the right to receiveinformation, regardless of the social worth of such information.”
b Article 15(7) of the Constitution provides that the exercise of therights under Article 14( 1 )(a) shall be subject to such restrictions asmay be prescribed by “Law" (which expression includes emergencyregulations) in the interest of, inter alia, national security.
c The burden of establishing restrictions imposed under Article 15(7)is heavy.
Per Amerasinghe, J.
“Exceptions [to Article 14(l)(a)J must be narrowly and strictlyconstrued for the reason that the freedom of speech constitutes oneof the essential foundations of a democratic society, which, as wehave seen, the Constitution, in no uncertain terms, declaresSri Lanka to be"
d While the preservation of morale of the Armed Forces is animportant matter, yet, in a democracy, freedom of speech performsa vital role in keeping in check persons holding public office. Hence,even if the restriction is not expressly related to the conduct of suchpersons in the North and East, the regulations must be interpreted
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restrictively to limit it to information concemingsuch persons in theNorth and EasL
A restriction on the freedom guaranteed by Article 14( l)(a) will beunconstitutionally overbroad and violative of Article 155(2) of theConstitution if there is no proximate or rational nexus between therestrictions imposed and the objecL sought to be achieved namely,the interest of national security. Regulations which vest arbitrarypowers of censorship in administrative officials may be struck downas being overbroad.
Per Amerasinghe, J.
“ if the court is satisfied that the restrictions are
clearly unreasonable, they cannot be regarded as being within theintended scope of the power under Article 15(7)"
a The impugned restrictions had a basis in law. and that as far as the
quality of the law was concerned, it was formulated with sufficientprecision to enable the petitioner to foresee, to a degree that wasreasonable in the circumstances, consequences which a givenaction may entail; and even though the discretion of Lhe CompetentAuthority was wide, the scope of Lhe discretion and the manner ofits exercise were indicated with sufficient clarity to enable thediscretion to be reviewable and to give the petitioner adequateprotection against arbitrary interference.
b The restrictions imposed were not disproportionate to Lhe legitimateaim of the regulations, namely the furtherance of Lhe interest ofnational security in terms of Article 15(7).
In the circumstances, the petitioner's fundamental rights underArticle 14(l)(a) have not been infringed.
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SC SunUa Abeysekera v. Ariya Rubasinghe. Competent. Authority3] 7
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Visuualingam and Others v. Liyanage and Others (1983) 2 SriL. R. 311.
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Karunathilaka and Another v. Dayananda Dissanayake.Commissioner of Elections and Others, (1994) 1 Sri L. R. 157.
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Informationsverein Lentia u. Austria, (1994) 17 E. H. R. R. 93.
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Prager and Obserschlik u. Austria, (1996) 21 E. H. R. R. 1.
Lingens v. Austria, (1986) 8 E. H. R. R. 407.
Worm v. Austria, (1996) 22 E. H. R. R. C. D. 7.
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and Others (Amerasinghe, J.j
McLaughlin v. United Kingdom, (1994) 18 E. H. R. R. 84.
Vereinigung Democratischer Soldaten Osterreichs and Gubi u.Austria, (1995) 20 E. H. R. R. 56.
Vereniging Radio 100 et al. v. Netherlands, (1996) 22 E. H. R. R. C.D. 198.
Abramsu. United States. 250 U. S. 616:40 S. Ct. 17:63 L. Ed. 1173,(1919).
Red Lion Broadcasting Co. v. F. C. C., 395 U. S. 376, 89 S. Ct. 1794:23 L. Ed. 2d. 371. (1961).
West Virginia Board of Education v. Barnette, 319 U. S. 624: 633 S.Ct. 1178: 87 L. Ed. 1173, (1943).
Shantha Wijeraine u. Vijitha Perera and Others, S. C. Application379/93, S. C. Minutes of 03.02.94.
Gitlow v. New York. 268 U. S. 652: 45 S. CL 625: 69 L. Ed. 1138.(1925).
Dissanayaka i>. SriJayewardenapura University, (1986) 2 Sri L. R.254.
Gaskin v. United Kingdom, (1987) 9 E. H. R. R. 279.
Gaskin v. United Kingdom, (1989) 11 E. H. R. R. 402.
Leander v. Sweden, (1987) 9 E. H. R. R. 433.
Wallen v. Sweden (1986) 8 E. H. R. R. 320.
Chaplinsky v. New Hampshire, 315 U. S. 568, (1942).
Cantwell u. Connecticut, 310 U. S. 296 (1940).
Schenck v. United States, 249 U. S. 47; S. Ct. 247; 63 L. Eld. 470,(1919).
Mallowaarachchi v. Seneviratne, S. C. Application 212/88. S. C.Minutes of 28.09.1989.
Bernard Soysa and Two Others v. The A.G. and Two Others, (1991)2 Sri L. R. 56.
Saranapala u. Solanga Arachchi, Senior Superintendent of Police,and Others, (1999) 2 Sri L. R. 166.
Mahinda Rajapakse v. Kudahetti and Others, (1992) 2 Sri L. R. 223.
Walker v. City of Birmingham 388 U. S. 307: 87 S. Ct. 1824: 18L. Ed. 2d 1210, (1967).
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Markt Intern Veriag and Beeman u. Germany. (1990) 12 E. H. R. R.161.
Dennisv. UnUedStates. 341 U. S. 495: 71 S. Ct. 857:95 L. Ed. 1157.(1951).
New York Times Co. v. U. S.. and United States v. The WashingtonPost Company et al.. 403 U. S. 713: 91 S. CL 2140. (1971).
Travancore-Cochin v. Bombay Co. Ltd., (152) S. C. R. 11 12.
Bombay v. R. M. D. Chamarabagawalla, (157) S. C. R. 874.
Express Newspapers (Private) Ltd. v. Union. (1959) S. C. R. 12.
Kingsley International Pictures Corporation v. Regents of theUniversity of New York. 360 U. S. 684: 79 S. Ct. 1362: 3 L. Ed.2d 1512(1959).
United States v. Carotene Products Co.. 304 U. S. 144. 58 S. Ct. 778:82 L. Ed. 1234. (1938).
Brandenberg v. Ohio. 395 U. S. 444: 89 S. Ct. 1827: 23 L. Ed. 2d.430. (1969).
Hess v. Indiana. 414 U. S. 105: 94 S. Ct. 326: L. Ed. 303. (1973).
Frohwerk v. United States, 249 U. S. 204 (1919).
United States v. David Paul O'Brien. 391 U. S. 367: 88 S. Ct. 1673.(1968).
Hins and Hugenholtzv. Netherlands. (1996)21 E. H. R. R. C. D. 124.
Gay News v. United Kingdom, (1983) 5 E. H. R. R. 123.
G. V". Germany, (1984) 6 E. H. R. R. 467.
Markt Intern and Beerman v. Germany. (1989) 11 E. H. R. R. 212.
Times Newspapers Ltd. and Neil v. United Kingdom (1993) 15 E. H.R. R. C. D. 49.
Groppera Radio AG v. Switzerland. (1990) 12 E. H. R. R. 321.
Arrowsmith v. United Kingdom. (1982) 3 E. H. R. R. 218.
Tolstoy Miloslavsky v. United Kingdom (1995) 20 E. H. R. R. 442.
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Wickremasinghe v. Edmund Jayasinghe, (1995) 1 Sri L. R. 300.
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and Others (Amerasinghe, J.)
Debs v. United States, 249 U. S. 211, (1919).
Ekanayake u. HerathBanda, S. C. App. 25/91 (F. R.), S. C. Minutesofl 1.10.91.
Amaratungav. SirimaL, S. C.App. 468/92, S. C. Minutesof08.03.93.
McCray u. United States, 195 U. S. 27, 56: 24 S. Ct. 769, 776: 49L. Ed. 78. (1904).
State of Arizona v. State of California, 283 U. S. 423: 455; 51 S. Ct522; 75 L. Ed., 1154, (1931).
Malalgoda v. A. G. and Another, (1982) 2 Sri L. R. 777.
Lingens and Leitgens v. Austria, (1982) 4 E. H. R. R. 373.
App. No. 12230/86 v. Germany, (1989) 11 E. H. R. R. 101.
Barfod v. Denmark. (1991) 13 E. H. R. R. 493.
Wickremabandu v. Herath and Others. (1990) 2 Sri L. R. 348.
Bohr v. Switzerland, (1989) 11 E. H. R. R. 81.
Bowman v. U. K.. (1996) 22 E. H. R. R. C. D. 13.
AutronicAG v. Switzerland, (1990) 12 E. H. R. R. 485.
Weber v. Switzerland, (1990) 12 E. H. R. R. 508.
Shelton v. Tucker 364 U. S. 479, 81 S. Ct. 247. (1960).
Siriwardene and Others v. Liyanage, (1983) 2 Sri L. R. 164.
108; Klass andOthers v. Federal Republic of Germany, (1979-80) 2 E. H.R. R. 214.
App. No. 10628/83 v. Switzerland, (1987) 9 E. H. R. R. 107.
App. No. 11508 v. Denmark, (1989) 111 E. H. R. R. 543.
Lovell v. Grifpn, 303 U. S. 444; 58 S. Ct. 666: 82 L. Ed. 949, (1938).
Cantwell v. Connecticut, 310 U. S. 296; S. Ct. 900; 84 L. Ed. 1213.(1940).
Saia v. New York, 334 U. S. 558: 68 S. CL 1148; 92 L. Ed. 1574.(1948).
Kunz v. New York. 340 U. S. 290: 71S. CL 312:95 L. Ed. 280. (1951).
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APPLICATION for relief for infringement of fundamental rights.
R. K. W. Goonesekera with S. H. Hewamarme, J. C. Welianmna andKishali Pinto Jayawardena for the petitioner.
SaleemMarsoof, P. C.,A. S. G. with U. Egalaheiva. S. C. for the respondent
Cur. adu. uull.
May 15, 2000
AMERASINGHE, J.THE IMPUGNED EMERGENCY REGULATIONS AND THEIR PRECURSORS
On 21 September 1995, the President of Sri Lanka(hereinafter referred to as the President) made the followingregulations under section 5 of the Public Security Ordinance.
“1. These Regulations may be cited as the Emergency(Restriction on Publication and Transmission of SensitiveMilitary Information) Regulations, No. 1 of 1995.
The President may for the purpose of these regulations,appoint, by name or by office, any person or body of personsto be the Competent Authority.
No Editor or Publisher of a Newspaper or anyperson authorized by or under law, to establish and operate aBroadcasting Station orTelevision Station shall, whether in oroutside Sri Lanka, print, publish or distribute or transmit,whether by means of electronic devices or otherwise, or causeto be printed, published, distributed or transmitted whetherby electronic means or otherwise, any material containing anymatter which pertains to any operations carried out, orproposed to be carried out, by the Armed Forces or the PoliceForce (including the Special Task Force), the procurement orproposed procurement of amis or supplies by any such Forces,the deployment of troops or personnel, or the deployment oruse of equipment, including aircraft or naval vessels, by anysuch Forces.
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and Others (Amerasinghe, J.)
Where any person prints, publishes, distributes ortransmits, or causes to be printed, published, distributed ortransmitted, whether by electronic means or otherwise, anymatter in contravention of the provisions of regulation 3, theCompetent Authority may, after issuing such directions, as heconsiders necessary to effect compliance with the provisions ofsuch regulation, make order that the press or equipment usedfor such printing, publication, distribution or transmissionshall, for such period as is specified in that order not be usedfor the purpose of printing, publication, distribution ortransmission of any matter referred to in regulation 3 and theCompetent Authority may by the same order authorise anyperson specified therein to take such steps as appears to theperson so authorised to be necessary, for preventing theprinting, publication, distribution or transmission of any suchmaterial.
Any person who prints, publishes, distributes ortransmits, any material in contravention of the provisions ofregulation 3, shall be guilty of an offence."
On October 02, 1995, (Gazette IZxtraordinary No. 891/3)the President amended the regulations made on 21 September1995 by adding, “any statement pertaining to the officialconduct or the performance of the Head or any member of anyof the Armed Forces or the Police Force”, to the list of restrictedsubjects.
On December 20, 1995, the President, acting undersection 5 of the Public Security Ordinance, rescinded theEmergency (Restriction on Publication and Transmission ofSensitive Military Information) Regulation No. 1 of 1995, asamended by the regulation of October 2, 1995.
On 19 April 1996, the President made the followingregulations under section 5 of the Public Security Ordinance.
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“ 1. These Regulations may be cited as the Emergency(Prohibition on Publication and Transmission of SensitiveMilitary Information) Regulations No. 1 of 1996-
No Editor or Publisher of a Newspaper or anyperson authorised by or under law to establish and operate aBroadcasting Station or a Television Station shall, whether inor outside Sri Lanka, print, publish, distribute or transmit,whether by means of electronic devices or otherwise, or causeto be printed, published, distributed or transmitted whetherby electronic means or otherwise, any material containingany matter which pertains to any operations carried out orproposed to be carried out, by the Armed Forces or the PoliceForce (including the Special Task Force), the procurement orproposed procurement of arms or supplies by any such Forces,the deployment of troops or personnel, or the deployment oruse of equipment, including aircraft or naval vessels, byany such Forces, or any statement pertaining to the officialconduct or the performance of the Head or any member of anyof the Armed Forces or the Police Force.
Where any person prints, publishes, distributes ortransmits, or causes to be printed, published, distributed ortransmitted, whether by electronic means or otherwise, anymatter in contravention of the provisions of regulation 2, theCompetent Authority may, after issuing such directions as heconsiders necessary to effect compliance with the provisions ofsuch regulation, make order that the press or equipment usedfor such printing, publication, distribution or transmissionshall for such period as is specified in that order not beused for the purpose of printing, publication, distribution ortransmission of any matter referred to in regulation 2 and theCompetent Authority may by the same order authorise anyperson specified therein to take such steps as appears to theperson so authorised to be necessary, for preventing theprinting, publication, distribution or transmission of anysuch material.
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and Others (Amerasinghe, J.)
The President may for the purpose of theseregulations, appoint, by name or by office, any person orbody of persons to be the Competent Authority.
Any person who prints, publishes, distributes ortransmits, any material in contravention of regulation 2shall be guilty of an offence.”
On 8 October 1996, the Emergency (Prohibition onPublication and Transmission of Sensitive Military Information)Regulations No. 1 of 1996 were rescinded by a regulation madeby the President under section 5 of the Public SecurityOrdinance.
On 5 June 1998, the President made the followingregulations under section 5 of the Public Security Ordinance:
“1. These Regulations may be cited as the Emergency(Prohibition on Publication and Transmission of SensitiveMilitary Information) Regulations No. 1 of 1998.
No Editor or Publisher of a Newspaper or any personauthorised by or under law, to establish and operate aBroadcasting Station or a Television Station shall whether inor outside Sri Lanka, print, publish, distribute or transmitwhether by means of electronic devices or otherwise, or causeto be printed, published, distributed or transmitted whetherby electronic means or otherwise, any material containingany matter which pertains to any operations carried out orproposed to be carried out, by the Armed Forces or the PoliceForce (including the Special Task Force), the deployment oftroops or personnel, or the deployment or use of equipment,including aircraft or naval vessels, by any such forces, orany statement pertaining to the official conduct or theperformance of the Head or any member of the Armed Forcesor the Police Force.
Where any person prints, publishes, distributes ortransmits, or causes to be printed, published, distributed or
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transmitted, whether by electronic means or otherwise, anymatter in contravention of the provisions of Regulation 2. theCompetent Authority may, after issuing such directions as heconsiders necessary to effect compliance with the provisions ofsuch regulation, make order that the press or equipment usedfor such printing, publication distribution or transmissionshall for such period as is specified in that order not be usedfor such printing, publication, distribution or transmission ofany matter referred to in Regulation 2 and the CompetentAuthority may by the same order authorise any personspecified therein to take such steps as appears to the personso authorised to be necessary for preventing the printing,publication, distribution or transmission of any suchmaterial.
The President may for the purpose of theseregulations, appoint by name or office, any person or bodyof persons to be the Competent Authority.
Any person who prints, publishes, distributes ortransmits any material in contravention of the provisions ofRegulation 2 shall be guilty of an offence."
On 6 November 1999, the President made the followingregulations, hereinafter referred to as the impugnedregulations', under section 5 of the Public Security Ordinance:
“l.The Emergency (Prohibition on Publication andTransmission of Sensitive Military Information) Regulation01 of 1998 published in Gazette Extraordinary No. 1030/28 of05th June, 1998 and deemed to be in force by virtue of Section2A of the Public Security Ordinance, is hereby amended by thesubstitution for Regulation 2 thereof, of the following newRegulation
2. No Editor or Publisher of a newspaper or anyperson authorised by or under law to establish and operate aBroadcasting Station or a Television Station shall, except
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and Others (Amerasinghe, J.)
with the permission of the Competent Authority, print,publish, distribute or transmit whether by means of electronicdevices or otherwise cause to be printed, pubb'shed, distributedor transmitted any material (inclusive of documents, pictorialrepresentations, photographs or cinematograph films)containing any matter pertaining to mibtary operations in theNorthern and Eastern Province (sic.) including any operationcarried out or being carried ou t or proposed to be carried outby the Armed Forces or by the Police Force (including theSpecial Task Force), the deployment of troops or personnel orthe deployment or use of equipment including aircraft or Navalvessel by any such forces or any statement pertaining to theofficial conduct, moral|e), the performance of the Head or anymember of the Armed Forces or the Police Force or of anyperson authorised by the Commander-in-Chief of theArmed Forces for the purpose of rendering assistance in thepreservation of national security.”
THE PETITIONER AND HER COMPLAINT
The petitioner is the President of the Movement forInterracial Justice and Equality (MIRJE) and a member of theExecutive Committee of the Movement for Free and FairElections (MFFE). The petitioner stated that during thePresidential election campaign of 1999, any citizen or politicalparty had the right to “seek, receive and impart information onthe ethnic conflict and the war and” had “the concomitant rightto seek and receive and impart information on the militarystrategies and drawbacks in the conduct of the militaryoperations in the North and East.” The petitioner went on tostate that she is “a registered voter in the country and a publicspirited citizen concerned about the integrity of the democraticprocess and the people's franchise guaranteed by Article 3 ofthe Constitution. As a social/human rights activist concernedabout the ethnic conflict and the war in the North and East",she said she had "actively taken part in debate to resolve thesaid conflict and hence she is required to know the correctposition with regard to the long drawn out war between the
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Armed Forces and the LTTE", The petitioner said that her“opinion on all activities relating to the ethnic conflict in thecountry in general and in relation to the (1999 Presidential)election is based on information received by her on the said warand hence any prior restraints on information as aforesaid iscontrary to the rights guaranteed to the petitioner underArticle 10 of the Constitution".
The petitioner states that the amended regulationmade by the President on 6 November 1999 had "been imposedby Presidential Order in a manner that is unwarranted,discriminatory, and arbitrary and violative of Article 12(1) ofthe Constitution”.
The petitioner further states that “as a result of the saidamended Regulation. . . she is constrained from forming (sic.)and communicating information on matters of public debateand which are of vital concern to the nation and which task shehad been hitherto responsibly engaged in as an ExecutiveDirector of INFORM.” Consequently, it is alleged, that thepetitioner’s fundamental rights guaranteed by Article 14(1)(a)of the Constitution have been violated.
Article 10 of the Constitution states: “Every personis entitled to freedom of thought, conscience and religion,including the freedom to adopt a religion or belief of his choice.”
Article 12(1) states: “All persons are equal before the lawand are entitled to the equal protection of the law.”
Article 14(1)(a) states: “Every citizen is entitled to thefreedom of speech and expression including publication."
On the face of it, the impugned regulations apply to allpersons and they have not been shown to have been appliedin a discriminating manner. In Joseph Perera alias BrutenPerera v. The Attorney-General and Others, (1) especially atp. 230, the Court held that the impugned regulation in thatcase violated Article 12 of the Constitution since it had vested
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and Others (Amerasinghe, J.)
the Police with “naked” “unguided” and "arbitrary” power“enabling them to discriminate”. In the instant case, however,as we shall see, the impugned regulations were framed inreasonably precise terms and confined in their applicationto defined circumstances. Therefore, I fall to see how theimpugned regulations violate the petitioner’s rights underArticle 12(1) of the Constitution and I declare that there hasbeen no violation of that Article. With regard to Article 10, thegravamen of the petitioner’s complaint was that she wasdeprived of the opportunity of forming her own judgment aswell as influencing others by being able, freely and openlywithout restraint, to have access to and receive and disseminateinformation on what the petitioner describes in her petition asthe “ethnic conflict and the war in the North and East.” Thepetitioner’s substantial complaint is that the impugnedregulations interfered with her freedom of speech andexpression guaranteed by Article 14(1) (a) of the Constitution.
Freedom of speech and expression represents the meansthat enable the community, when exercising its options tobe sufficiently informed. Cf. Re Compulsory membershipof journalists’ association, (2) at p. 184 para. 70. Links betweenfree speech and some of the other rights and freedomsrecognized by our Constitution, including freedom of thoughtand conscience, do exist. This hardly comes as a surprisewhen we consider the words of the First Amendment of theAmerican Constitution, described in ChannaPieris and Othersv. The Attorney-General and Others, (3) at p. 137, as “theprogenitor of Article 14(1 )(a) (freedom of speech), 14( 1)(b)(freedom of peaceful assembly), and 14( 1 )(c) (freedom ofassociation) of the Constitution." The First Amendmentstates as follows: "Congress shall make no law respecting anestablishment of religion, or prohibiting the free exercisethereof; or abridging the freedom of speech, or of the press; orof the right of the people peaceably to assemble, and to petitionthe Government for a redress of grievances.” Justice Cardozoobserved that free speech is "the matrix, the indispensablecondition of nearly every other form of freedom.” Pcdko
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v. Connecticut, (4) cited in Chcmna Pieris and Others u.Attorney-General and Others, (3) at p. 143.
The submissions of learned counsel for the petitionerconcentrated on the question of interference with thepetitioner’s freedom of speech and expression, including herright to receive and impart information. The complaint, itseems, related to the deprivation of food for thought by reasonof interference with her right to receive information which shecould process and transmit by speech and expression, ratherthan to an interference with her freedom of thought andbeliefs: Access to information made her right of freedom ofspeech fully meaningful. Cf. the observations of Fernando,J. in Fernando u. The S. L. B. C. and Others (5) at p. 179. Cf. alsoSumithJayanthaDias u. Reggie Ranatunge, Deputy Minister ojTransport and Others, (6) at pp. 21 – 22. In the instant case thecomplaint was not that the Government was exercising controlover the mind of the petitioner by dictating to her. while shesat down in her own house, what she may read or whataudio-visual information she may gather. Cf. Stanley u. Stateoj Georgia, (7). Understandably, learned Counsel for thepetitioner did not press the matter of the alleged violation ofthe petitioner’s right to freedom of thought, although leaveto proceed in respect of the alleged violation of Article 10had been granted. In the circumstances, it is unnecessary todeal separately with the question whether there has been aviolation of Article 10.
FREEDOM OF SPEECH IN A REPRESENTATIVE DEMOCRACY
Freedom of speech is vitally important in the discovery oftruth in the market place of ideas so that the wishes ofthe people safely can be carried out; in serving the need ofevery man and woman to achieve personal fulfilment; and inmeeting the demands of a democratic regime. I had, at somelength, endeavoured to discuss these three intrinsic bases ofthe right to freedom of expression in Channa Pieris, (3), at pp.131-137 and feel reluctant to repeat what I said. However.Thomas Emerson (Toward a General Theory of the First
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and Others (Amerasinghe, J.)
Amendment, 1963, 72 Yale L. J. 877, 894) observed: “Thetheory of freedom of expression is a sophisticated and evencomplex one. It does not come naturally to the ordinarycitizen but needs to be learned. It must be restated andreiterated not only for each generation, but for each newsituation.” In relation to the issues before this Court, wherethe Constitutional validity of the impugned regulations isbeing challenged, principally on the ground that it is overbroadand therefore not necessary in a democratic state, I should liketo reiterate the following:
The preamble to the Constitution states that the peopleof Sri Lanka empowered their representatives by a mandateto “draft, adopt and operate” a new Constitution “in orderto achieve the goals of the DEMOCRATIC SOCIALISTREPUBLIC, and having solemnly resolved by the grant of suchmandate … to constitute Sri Lanka into a DEMOCRATICSOCIALIST REPUBLIC, whilst ratifying the immutablerepublican principles of REPRESENTATIVE DEMOCRACY,and assuring to all peoples FREEDOM, EQUALITY, JUSTICE,FUNDAMENTAL HUMAN RIGHTS and the INDEPENDENCEOFTHE JUDICIARY as the intangible heritage that guaranteesthe dignity and well-being of the succeeding generations of thePeople of SRI LANKA and of all the people .of the World, whocome to share with those generations the effort of working forthe creation and preservation of a JUST AND FREE SOCIETY:
WE, THE FREELY ELECTED REPRESENTATIVES OF THEPEOPLE OF SRI LANKA, in pursuance of such mandate … dohereby adopt and enact this Constitution as the Supreme Lawof the Democratic Socialist Republic of Sri Lanka."
The words in capital letters so appear in the Constitution.
Article 1 of the Constitution states, “Sri Lanka (Ceylon) isa Free, Sovereign, Independent and Democratic SocialistRepublic and shall be known as the Democratic SocialistRepublic of Sri Lanka.” Article 27(2) states that “The State
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is pledged to establish in Sri Lanka a democratic socialistsociety …"
Article 27(2) states that ‘The State is pledged to establishin Sri Lanka a democratic socialist republic . . .“
"Democratic" is derived from the Greek words demos (thepeople) and Kratos (rule). Democracy is the rule of the people.Although at a time when the Greek States had small populationsand limited franchise it was possible for the people – at any ratethose who were empowered at the time – to directly decide eveiyimportant issue, today, with large populations, universalsuffrage, infinitely more complex organizations of societiesand the costs involved in holding elections or referrenda, thepeople of most countries, including Sri Lanka, cannot directlyparticipate in deciding every important issue, although Article3 of the Constitution does state that “In the Republic ofSri Lanka sovereignty is in the people and is inalienable”, andthat "sovereignty includes the powers of government . . ."
For practical reasons, people must act in a modemdemocracy through their elected representatives. And so,Article 4 states:
‘The sovereignty of the People shall be exercised andenjoyed in the following manner: –
the legislative power of the People shall be exercised byParliament, consisting of elected representatives of the Peopleand by the People at a referendum:
the executive power of the People, including thedefence of Sri Lanka, shall be exercised by the President ofthe Republic elected by the People;
the judicial power of the People shall be exercised byParliament through courts, tribunals and institutions createdand established, or recognized by the Constitution, or createdand established by law, except in regard to matters relating to
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and Others (Ameraslnghe, J.)
the privileges, immunities and powers of Parliament and of itsmembers, wherein the judicial power of the People may beexercised directly by Parliament according to law . .
The value of free speech in a democracy has been recognizedby the Courts of many democratic countries around theworld. In Whitney v. California, (8) quoted in Channa Pleris,(3), at p. 137, explaining why the framers of the AmericanConstitution, who in 1787 had felt no need to include in theoriginal document a general theory of freedom of speech, in1791, by the First Amendment, did introduce the concept.Justice Brandeis, said:
‘Those who won our independence believed that the finalend of the State was to make men free to develop their faculties;and that in its government the deliberative forces shouldprevail over the arbitrary. They valued liberty both as an endand as a means. They believed liberty to be the secret ofhappiness and courage to be the secret of liberty. They believedthat freedom to think as you wish and to speak as youthink are means indispensable to the discovery and spreadof political truth; that without free speech and assemblydiscussion would be futile; that with them, discussion affordsordinarily adequate protection against the dissemination ofnoxious doctrine; that the greatest menace to freedom isan inert people; that public discussion is a political duty;and that this should be a fundamental principle of theAmerican Government. They recognized the risks to which allhuman institutions are subject. But they knew that ordercannot be secured merely through fear of punishment for itsinfraction; that it is hazardous to discourage drought, hopeand imaginadon; that fear breeds repression; that repressionbreeds hate; that hate menaces stable government; that thepath of safety lies in the opportunity to discuss freely supposedgrievances and proposed remedies; and that the fitting remedyfor evil counsels is good ones. Believing in the power ofreason as applied through public discussion, they eschewedsilence coerced by law – the argument of force in its worstform. Recognizing the occasional tyrannies of governing
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majorities, they amended the Constitution so that free speechand assembly should be guaranteed.”
The European Commission of Human Rights and theEuropean Court of Human Rights have repeatedly stressedthat freedom of expression, in particular freedom ofpolitical and public debate, constitutes one of the essentialfoundations of a democratic society, in addition to beingone of the basic conditions for its progress, and for individualself-fulfilment and development of every man and woman.Handyside v. The United Kingdom, (9) at p. 754: The SundayTimes v. The United Kingdom, (10) at p. 280: Bartholdv,. Germany, (11) at p. 403; Hodgson, Woolf Productionsand National Union ofJournalists and Channel Four Televisionv. United Kingdom (12) at p. 507; App. No. 11508/85 v.Denmark, (13); Muller v. Switzerland, (14) at p. 228; TheObserver and the Guardian v. United Kingdom, (15) p. 178,and p. 191; The Sunday Times v. United Kingdom (No. 2) (16)at p. 235 and p. 241: Castells v. Spain, (17) at p. 476:Thorgeirson v. Iceland, (18) at p. 865; Brind and Others v.United Kingdom (19) at p. C. D. 82; Jersild u. Denmark, (20)at p. 25; Otto Preminger Institute v. Austria (21) at p. 57;Oberschlick v. Austria (22) at p. 421; Piermoni v. France, (23)at p. 341; Goodwin v. United Kingdom, (24) at p. 143; AdamsandBenn v. United Kingdom (25) at p. C. D. 164; Wingrove v.United Kingdom, (26) at p. 52.
The Inter-American Court of Human Rights in Recompulsory membership of journalists’ association, (2) at pp.183-184, has expressed similar views. It stated: “Freedomof expression is a cornerstone upon which the very existenceof a democratic society rests. It is indispensable for theformation of public opinion. It is a conditio sine qua non for thedevelopment of political parties, trade unions, scientific andcultural societies and, in general, those who wish to influencethe public. It represents, in short, the means that enable thecommunity, when exercising its options, to be sufficientlyinformed. Consequently, it can be said that a society that is notwell informed is not a society that is truly free.”
SC Suntla Abeysekera u. Ariya Rubastnghe. Competent. Authority 335
and Others (Ameraslnghe, J.)
Various important international bodies have, from time totime, also endorsed the value of free speech and expression ina democracy. For instance, on the 29th of April 1982, theCommittee of Ministers of the Member States of the Council ofEurope, in their Declaration on the Freedom ojExpression andInformation", among other things, reiterated “their firmattachment to the principles of freedom of expression andinformation as a basic element of democratic and pluralistsociety." (1983) 5 E. H. R. R. 311.
The Supreme Court of Sri Lanka too has statedthat "freedom of speech and expression is not only avaluable freedom in itself but is basic to a democratic form ofGovernment." Joseph Perera's case, (1), at p. 223. TheSupreme Court stated in Channa Pteris's case, (3), at p. 132:"Freedom of thought and expression is an indispensablecondition if Sri Lanka is to be more than a nominallyrepresentative democracy.”
In Visuvalingamand Others v. Liyanage and Others (27) atpp. 320-323, Wanasundera, J. referred to the submissionsmade to the Constitutional Court on the Sri Lanka PressCouncil Bill which, in ter alia, provided "the background for thedrafting of the present constitutional provisions relating tofundamental rights," and at p. 548 said: "I am in agreementwith Mr. Nadesan when he says that the freedom of the pressembraces the freedom to propagate a diversity of views andideas and the right of free and general discussions of all publicmatters . , See also the observations of Wimalaratne, J.accepted by Colin Thome, J., Ranasinghe, J., Abdul Cader, J.and in a separate Judgment by Rodrigo, J., in Visuvalingamand Others u. Liyanage (28) at p. 131.
In Ratnasara Thero u. Udugampola (29), the Court heldthat the seizure by the Police of copies of pamphlets that hadbeen printed on a question of interest to voters violated thepetitioner’s freedom of speech and expression includingpublication and awarded him compensation and costs. InMohottige and Others u. Gunatillake and Others (30), at p. 255,
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a prohibition imposed by the Police on persons seeking tocriticize the government and its activities was said to “nullifydemocratic government as is understood in this country". InAmaratunga v. Sirimal and Others, (31), at p. 271, and inDeshctpriya and Another v. Municipal Council, Nuwaia Eliyaand Others, (32), at p. 370, Fernando, J. said: The right tosupport or to criticize Governments and political parties,policies and programmes, is fundamental to the democraticway of life, and the freedom of speech and expression is onewhich cannot be denied without violating those fundamentalprinciples of liberty and justice which lie at the base of all civiland political institutions. Dejonge v. Oregon (23)." Cf. Mahanand Another v. Upasena, (34). In awarding compensation forthe violation of freedom of speech, the Court has taken accountof its numerous decisions stressing the importance of thatfundamental right. Gunawardena and Another u. Pathirana.O. I. C., Police Station, Elpitiya and Others, (35), at p. 274. Andif has been held that the Constitutional guarantee of freespeech must be interpreted in the light of the “fundamentalprinciples of democracy and the Rule of Law which are thebedrock of the Constitution.”: Karunathilake and Anotherv. Dayananda Dissanayalce, Commissioner of Elections andOthers, (36) at p. 173.
Speech concerning public affairs is more than self-expression: it is the essence of self-government. To make aninformed and educated decision in choosing his or her elected,representative, in deciding to vote for one group of personsrather than another, a voter must necessarily have theopportunity of being informed with regard to proposedpolicies. The election of representatives is based on an appealto reason and not to emotions: a system of government basedon representative democracy assumes it to be so. In theformation of opinions and the mobilization of such ideasoffered for acceptance in the competition for the right torepresent the people, there can be no appeal to reason withoutthe freedom to express and propagate and discuss ideas,based on adequate and reliable information.
SC SunUa Abeysekera v. Ariya Rubasinghe. Competent Authority 337
and Others (Ameraslnghe, J.)
In its social dimension, freedom of expression is a meansfor the interchange of ideas and information among humanbeings and for mass communication. It includes the right ofeach person to seek to communicate his or her own views toothers, as well as the right to receive opinions and informationfrom others. Open Door Counselling and Dublin Well Woman v.Ireland, (37) at p. 261; InformationsvereinLentiav. Austrial38),at p. 113. Freedom of speech necessarily protects the right toreceive information, regardless of the social worth of suchinformation. The right is fundamental to a free society. Martinv. City of Struthers, (39); Winters v. New York, (40): Griswold u.Connecticut, (41); Lamontv. Postmaster-General, (42); Stanleyv. Georgia, (7); Cf. Pierce v. Society of Sisters, (43). For theaverage citizen, it is just as important to know the opinions ofothers or to have access to information generally as the veryright to impart his or her opinions. Re Compulsory membershipof journalists’ association, (2) at pp. 171-172.
In this connection the “dual aspect” of freedom ofexpression needs to be stressed. It requires, on the one hand,that no one be arbitrarily limited or impeded in expressinghisor her own thoughts. In that sense, it is a right that belongs toeach individual. Its second aspect, on the other hand, ingeneral, implies a collective right to receive information andhave access to the thoughts expressed by others. The right toreceive information is an important aspect of free speech andexpression. Visuvalingam and Others u. Liyanage and Others.(28) at pp. 131-133.
Since the petitioners’s complaint is concerned with politicalmatters and freedom to use the print media, I have focussedattention on those aspects. However, the impugned regulationsextend to all forms of expression and communication.Therefore it must be stressed that the principles relating tofreedom of speech and expression do not apply solely to certaintypes of information or ideas or forms of expression. Freedomof speech and expression protects not only the substance ofthe ideas and information expressed, but also the form in
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which they are conveyed. Oberschlick u. Austria, (22) at p. 422.In its individual dimension, although formulated primarilywith regard to speech and the print media, freedom of speechand expression includes "all forms of freedom of speech andexpression”, Karunathilaka and Another v. DayanandaDissanayake, Commissioner of Elections and Others, (36) atp. 173, including the right to use audio-visual media, Jersildv. Denmark, (20) at p. 26, and indeed whatever mediumis deemed appropriate to impart ideas and to have them reachas wide an audience as possible, and it includes artisticexpression. See Article 19(2) of the International Covenant onCivil and Political Rights: Muller u. Switzerland, (supra), (14) atp. 225. It also encompasses information of a commercialnature and even music, and commercials transmitted bycable. Casado Coca v. Spain, (44) at p. 20.
In Amaratunga u. Sirimal and Others, (31), disapproval ofthe policies and actions of government on a range of issues wasexpressed by a fifteen minute, noisy cacophany of publicprotests – Jana Chosha – which included the ringing of bells,tooting of motor vehicle horns, the banging of saucepans andthe beating of drums. It was held at p. 270, citing severalopinions of the U. S. Supreme Court, that "speech andexpression” extended to forms of symbolic speech andexpression and that Jana Ghosha could be regarded as“speech and expression”. In Abeyratne v. Gunatilake andOthers, (45) at p. 295 it was held that the guarantee of freedomof speech and expression and freedom of peaceful assembly“could be rendered meaningless if permission for the use ofamplifying mechanical devices in furtherance of free speech isunreasonably withheld.”
It is only by informed discussion that proposals adducedcan be modified so that the political, social and economicmeasures desired by voters can be brought about. And, inbetween elections, it is only through free and informed debateand exchange of ideas that the elected majority can bemade to remain responsive to and reflect the will of the people.
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and Others (Amerasingtw, J.)
The fact that people have elected representatives does hotimply that such representatives may always do as they will;members of the public must, in matters affecting them, be freeto influence intelligently the decisions of those persons for thetime being empowered to act for them. Every legitimateinterest of the people or a section of them should have theopportunity of being made known and felt in the politicalprocess. Moreover, in a representative democracy theremust be a continuing public interest in the workings ofgovernment which should be open to scrutiny andwell-founded constructive criticism. Indeed, a central valueof free speech, and the concomitant rights of freedom ofassociation and assembly, lies in checking the abuse ofpower by those in authority. The free press has a legitimateinterest in reporting on and drawing the public’s attentionto deficiencies in the operation of Government services,including possible illegal activities. It is incumbent on thepress to impart information and ideas about such mattersand the public has a right to receive them. The Observer andthe Guardian v. United Kingdom, (15) at p. 178; The SundayTimes v. United Kingdom, (No. 2), (16) at p. 235.
Journalism, it has been held, “is the primary and principalmanifestation of freedom of expression of thought." ReCompulsory membership of journalists’ association, (2) atp. 184. With regard to the press, it has been stated that it hasa pre-eminent role in a State governed by the rule of lawand, that whilst it must not overstep the bounds set, it isnevertheless incumbent on the press, in away consistent withits duties and responsibilities, to disseminate informationand ideas and stimulate debate on political issues and onother matters of public interest. Castells v. Spain, (17) at 476;Prager and Obserschlick v. Austria, (46) at p. 19-20. Not onlydoes the press have the task of imparting such informationand ideas, the public also have a right to receive them. SundayTimes v. U. K., (10) at p. 280; Lingens v. Austria, (47) at p. 418;Worm u. Austria, (48)atp. C. D. 39. Were it otherwise, the presswould be unable to play its vital role of ‘public watchdog’. The
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Observer and the Guardian, v. U. K.. (15) atp. 191: Thorgeirsortv. Iceland. (18), at p. 865: Brind and Others v. U. K.. (19) dtp. 82; Jersild u. Denmark. (20) at p. 14; Goodwin v. U. K., (24)at p. 136. Freedom of the press affords the public one ofthe best means of discovering and forming an opinion of theideas and attitudes of their political leaders. In particular,it gives politicians the opportunity to reflect and commenton the preoccupations of public opinion; it thus enableseveryone to participate in political debate which is at the verycore of the concept of a democratic society. Lingens v. Austria,(47) at pp. 418-419; Castells v. Spain. (17) at p. 476; Brind andOthers v. U. K., (19) at p. 82; McLaughlin v. United Kingdom. (49)at p. C. D. 92; Oberschlick v. Austria, (22) at p. 422.
Freedom of speech and expression protects not onlyinformation or ideas that are favourably received or regardedas inoffensive or as a matter of indifference, but also thosethat offend, shock or disturb the State or any sector of tinepopulation. See Channa Pieris, (3) at p. 134, cited inGunawardena and Another v. Pathircma, O. I. C.. Police StationElpitiya and Others, (35) at p. 278. Such are the demandsof that pluralism, tolerance and broadmindedness withoutwhich there is no ‘democratic society’. Hcmdyside v. U. K., (9)at p. 754; The Sunday Times v. U. K., (10) at p. 280; ApplNo. 11508/85 v. Denmark, (13) at pp. 560-561; Lingens v.Austria (47), at p. 418; Muller v. Switzerland, (14) at p. 228;Castells v. Spain (17) at p. 476; Thorgeirson v. Iceland, (18) atp. 865; Brind and Others v. U. K., (19) at p. 82; Jersild v.Denmark, (20) at p. 14; Otto Preminger Institute v. Austria,(21) atp. 57; Obserschlickv. Austria, (22) atp. 421; VereinigungDemocratischer Soldaten Osterreichs and Gubi v. Austria.
at p. 83; Piermont v. France, (23) at p. 341; Goodwin v.U. K. (24) at p. 136; Vereniging Radio 100 et al. u. Netherlands,
at p. C. D. 204.
Justice Holmes in Abrams v. United States, (52) quotedin Channa Pieris, (3) at p. 136, said:
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and Others (Amerasinghe, J.l
“Persecution for the expression of opinions seems to meperfectly logical. If you have no doubt of your premises or yourpower and want a result with all your heart you naturallyexpress your wishes in law and sweep away all opposition. Toallow opposition by speech seems to indicate that you thinkthe speech impotent, as when a man says that he has squaredthe circle, or that you do not care wholeheartedly for the result,or that you doubt either your power or your premises. Butwhen men have realised that time has upset many fightingfaiths, they may come to believe even more than they believethe very foundations of their conduct that the ultimate gooddesired is better reached by free trade in ideas – that the besttest of truth is the power of the thought to get itself acceptedin the competition of the market, and that truth is the onlyground upon which their wishes can be carried out. That atany rate is the theory of our Constitution . . .”
There is a vital societal interest in preserving an uninhibitedmarket place of ideas in which truth will ultimately prevail.Red Lion Broadcasting Co. v. FCC, (53). We are committedto the principle that debate on public issues should beuninhibited, robust and wide open. ChannaPieris, (3) at p. 36.An assumption underlying Article 14( 1)(a) of the Constitutionis that speech can rebut speech, propaganda will answerpropaganda and that free debate of ideas will result inthe wisest policies, at least for the time being. Channa Pieris,(3) at p. 135.
Attempts to secure uniformity of ideas is fraught withdanger. “Those who begin coercive elimination of dissentsoon find themselves eliminating dissenters. Compulsoryunification of opinion achieves only the unanimity of thegraveyard. It seems trite that [the Constitutional guarantee offreedom of expression] was designed to avoid these ends byavoiding beginnings.” West Virginia Board of Education u.Barnette, (54), followed in Shantha Wyeratne u. Vtjitha Pereraand Others, (55), Channa Pieris, (3) at pp. 42-43, and inGunawardena and Another v. Pathirana, O. I. C., Police Station,
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Elpitiya and Others, (35) at p. 277. As we have seen. JusticeBrandeis pointed out in Whitney u. California, (8) repressionbreeds hate and hate menaces stable government. Nowak,Rotunda and Young, Constitutional Law, pp. 836-7), cited withapproval in Channa Pieris, (3) at p. 43, pointed out:
“Just as the ancient Roman eventually learnedthat executing Christians did not suppress Christianity,modem governments should realize that forbidding people totalk about certain topics does not encourage public stability.It only creates martyrs. Punishing people for speech doesnot discourage speech; it only drives it underground andencourages conspiracy. In the battle for public order, freespeech is the ally, not the enemy.”
RESTRICTIONS ON FREEDOM OF SPEECH IN GENERALAlthough one may think what one may wish, no intelligentperson articulates or ought to articulate every thought thathappens to pass through his or her mind, anywhere at anytime.
In the exercise and operation of a persons freedom ofthought, conscience and beliefs, and the right to impartopinions, one might be restrained by the Buddhas advice to bewatchful of one’s speech, recalling the fate of the everhungryspirit (peta), with the head of a pig and the body of a humanbeing, with its mouth swarming with maggots, who ignored theBuddha’s admonition. Dhammathha Vagga, xx. 6.
Those who cannot restrain themselves for moral reasonsare in many ways prevented by law from speaking as theythink, for the societal value of speech must on occasion besubordinate to other values and considerations. Article 28(e)of the Constitution draws our attention to the fact that – “theexercise and enjoyment of rights and freedoms is inseparablefrom the performance of duties and obligations” and remindsus that “accordingly it is the duty of every person in Sri Lanka
sc
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and Others (Amerasinghe, J.)
to respect the rights and freedoms of other.” Article 15(2)states that “the exercise and operation of the fundamentalright declared and recognized by Article 14(1)(a)”, namely,freedom of speech and expression, including publication,“shall be subject to such restrictions as may be prescribedby law in the interests of racial and religious harmonyor in relation to Parliamentary privilege, contempt ofcourt, defamation or incitement to an offence.” Article 15(7)states that the exercise and operation of the fundamentalrights declared and recognized by Article 14 “shall besubject to such restrictions as may be prescribed by law inthe interests of national security, public order, and theprotection of public health or morality, or for the purposeof securing due recognition and respect for the rightsand freedoms of others, or of meeting the just requirementsof the general requirements of the general welfare of ademocratic society …”
Laws restraining speech to ensure that the rights ofothers are safeguarded and that people shall exercise theirright of free speech with responsibility are commonplace.Laws relating to official secrets, defamation, obscenity,contempt of court, peijury, fraud, extortion, and licensing ofradio and television broadcasters, readily come to mind. AsJustice Sanford, delivering the opinion of the United StatesSupreme Court, observed in Gitlow v. New York, (56), citedin Charma Pieris and Others v. Attorney-General and Others,
at pp. 137-138, "It is a fundamental principle, longestablished, that freedom of speech and the press which issecured by the Constitution, does not confer an absolute rightto speak or publish without responsibility, whatever one maychoose." See also the observations of Sharvananda, C. J. inDissanayake u. Sri Jayawardenapura University, (57) atpp. 263-264 and at p. 270. Nor is there an absolute right toreceive information as an element of the right of free speechand expression. Gaskin v. United Kingdom, (58) at p. 285;Gaskin v. United Kingdom, (59) at p. 411; Leander v. Sweden,(60) at p. 452 and p. 456; Wallen v. Sweden, (61) at p. 322.
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The Constitutional provision relating to free speech,as Meikljohn observed in his work Free Speech and its Relationto Self Government, “is not the guardian of unregulatedtalkativeness.” Geoffrey Robertson, Q. C., and Andrew Nicol.Media Law, 3rd ed., p. 1., observed: “By and large. Parliamentand the judiciary have taken the view that free speech is a verygood thing so long as it does not cause trouble. Then it maybecome expensive speech – speech . . . with costly courtactions, fines, damages and occasionally imprisonment.'Free speech', in fact, means no more than speech from whichillegal utterances are subtracted.”
In addition to restrictions prescribed by law, there may beutterances that are no essential part of any exposure of ideasand are of such social value as a step in truth that any benefitthat may be derived from them is outweighed by the socialinterest in order and morality. Chaplinsky v. New Hampshire,(62). Thus, it has been said that resort to rude epithets orpersonal abuse is not in any proper sense communication ofinformation or opinion safeguarded by the Constitution.Cantwell v.. Connecticut, (63).
Likewise, although, as Lord Denning in an address beforethe High Court Journalists' Association observed in 1964(The Times, 03 December 1964), “Justice has no place indarkness and secrecy. When ajudge sits on a case, he himselfis on trial … If there is any misconduct on his part, any biasor prejudice, there is a reporter to keep an eye on him,” andalthough justice is not a “cloistered virtue”, yet, wanton andirresponsible criticism of democratic institutions like thejudiciary, can hardly claim to be an use of freedom of speechthat deserves constitutional protection. Thus in Prayer andObserschlick v. Austria (46), at p. 20, the European Court ofHuman Rights stated that it is incumbent on the press in away consistent with its duties and responsibilities to impartinformation and ideas on matters of public interest including"questions concerning the functioning of the system ofjustice,an institution that is essential for any democratic society.
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and Others (Amemsinghe, J.)
The press is one of the means by which politicians and publicopinion can verify that judges are discharging their heavyresponsibilities in a manner that is in conformity with the aimwhich is the basis of the task entrusted to them.” The Courtadded: “Regard must, however, be had to the special role of thejudiciary in society. As the guarantor of justice, a fundamentalvalue in a law-governed State, it must enjoy public confidenceif it is to be successful in carrying out its duties. It maytherefore prove necessary to protect such confidence againstdestructive attacks that are essentially unfounded, especiallyin view of the fact that judges who have been criticised aresubject to a duty of discretion that precludes them fromreplying.”
Free speech has its limits. In his famous aphorism inSchenck v. United States, (64) cited with approval in severalcases including Mallawarachchi v. Seneviratne, (65) BernardSoysa and Two Others u. The A. G. and Two Others, (66) atp. 58 and in Channa Pieris, (3) at p. 138, Justice Holmes said,‘The most stringent protection of free speech would not protecta man in falsely shouting fire in a theatre and causing panic."Moreover, as Fernando, J. observed in Bernard Soysa (66)at p. 58, “What may be said or done in the exercise of thefreedom of speech, expression or peaceful assembly wouldalso depend on the place.” See also Saranapala u. SolangaArachchi, (67) at pp. 172-173, on the use of public places.Moreover, the right to speak must be tailored to the occasion.Mahinda Rajapakse v. Kudahetti and Others, (68), at p. 229.See also the observations of Sharvananda, C. J. in JosephPerera v. A. G. (1) at p. 226 – p. 227.
Referring to other countries’, extravagant claims aresometimes made by journalists. Even the Republic of Iceland,which in Artice 72 of its Constitution states that “Eveiy personhas the right to express his thoughts in print. . . Censorshipor other limitations on the freedom of the press may never beimposed(The emphasis is mine,) provides in that very sameArticle that a person expressing his thoughts “may be held
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responsible for them in courts." An author, or if the publicationis not in his or her name, then the publisher, editor, seller ordistributor may, under section 15 of the Right of PublicationAct 1956 of Iceland, be held both criminally and civilly liable.Moreover, a defamatory publication constitutes a criminaloffence under the Penal Code of Iceland. Thorgeirson u. Iceland.(18), at p. 857. Admittedly, in the law relating to defamationin Iceland, there is no prior restraint on the exercise offree speech, Yet, where the governing instrument, be it aConstitution or international convention, does not prohibitprior restraints on publication, the imposition of suchrestraints, e. g. by injunctions obtained under a prescribedlaw, is not per se impermissible. In Sri Lanka, pre-censorshipis not necessarily unconstitutional and can be justified,if brought within the ambit of Article 15. Joseph Perera's case,(1) at p. 229. Dissanayake v. SriJayewardenepura University,(57) at p. 270. However, the dangers inherent in priorrestraints are such that they call for the most careful scrutinyon the part of a Court that is called upon to consider thevalidity of such restraints. Wingrove v. U. K, (26) at p. 31. Butthat is another matter.
As far as prior restraints are concerned, a person may seekjudicial review of a censor’s acts. Yet, if a person must pursuehis or her judicial remedy before he or she may exercise his orher right offreedom of speech, the occasion might have becomehistory and later speech may be futile or pointless. See perJustice Douglas in Walker v. City of Birmingham, (69). This isespecially so as far as the press is concerned, for news is aperishable commodity and to delay its publication, even for ashort period, for instance, while the Competent Authoritymakes up his mind under the impugned regulations, may welldeprive it of all its value and interest. Cf. The Observer and theGuardianv. U.K., (15) atp. 191; The Sunday Times v. U. K.. (16)at p. 242. See also Markt Intern Verlag and Beemann v.Germany (70) atp. 175. On the other hand if prior restraint wasnot possible, irreparable harm could be caused in certaininstances. As Justice Douglas observed in Dennis v. United
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and Others (Amerasinghe, J.)
States, (71) see also Charma Pieris, (3) at pp. 47-48: 'Therecomes a time when even free speech loses its constitutionalimmunity … When conditions are so critical that there will beno time to avoid the evil that the speech threatens, it is time tocry a halt. Otherwise free speech which is the strength of thenation will be the cause of its destruction.”
In Abrams v. United States, (52) even Holmes J., despitehis off-quoted words in support of free speech in the opinionhe expressed in that case, recognized the danger of waitingbefore taking action against a person exercising the right offree speech, although he did stress the need to limit restraint.He said: "I think that we should be eternally vigilant againstattempts to check the expression of opinions we loathe andbelieve to be fraught with death, unless they so imminentlythreaten immediate interference with the lawful and pressingpurposes of the law that an immediate check is requiredto save the country. (Only} the emergency that makes itimmediately dangerous to leave the correction of evil counselsto time warrants making any exception to the sweepingcommand, Congress shall make no law abridging the freedomof speech.”
THE RELEVANCE OF OTHER LAW. INCLUDING DECISIONSOF OTHER COURTS AND TRIBUNALSLearned Counsel for the petitioner, relied on dicta in theopinions of the United States Supreme Court in Schenck u.U. S., (51); Abrams v. U. S., (52) Gitlow v. New York, (47),New York Times Company v. U. S., and United States u. TheWashington Post Company et al., (72), usually referred to asNew York Times v. U. S., and particularly on the decisions ofthe European Court of Human Rights in The Observer andGuardian v. U. K., (15) and The Sunday Times v. U. K. (No: 2)(16), in submitting that the conditions for the imposition ofrestrictions stated in Article 15(7) had not been satisfied in themaking of the impugned regulations and that such regulationswere therefore unconstitutional.
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The Additional Solicitor-General submitted that the dictain the American opinions were unhelpful, since the FirstAmendment of the American Constitution did not provide forrestrictions and that the restrictions had been judge-made. Onthe other hand, he submitted, the restrictions in the Sri LankaConstitution are to be found in the Constitution itself, as it wasthe case with the Indian Constitution, which provided forrestrictions in Article 19(2).
The relevant words of Article 19 of the Indian Constitutionare as follows:
“(1) All citizens shall have the right (a) to freedom of speechand expression … (2) Nothing in sub-clause (a) of Clause (1)shall affect the operation of any existing law, or prevent theState from making any law, in so far as such law imposesreasonable restrictions on the exercise of the right conferred bythe said sub-clause in the interests of the sovereignty andintegrity of India, the security of the State, friendly relationswith foreign States, public order, decency or morality, or inrelation to contempt of court, defamation or incitement to anoffence.”
The learned Additional Solicitor General cited H. M.Seervai who, in Constitutional Law of India, 4'h Ed., p. 710,drew attention to the warning given by the Indian SupremeCourt in Trauancore-cochin v. Bombay Co. Ltd., (73) at p. 1120,and in Bombay v. R. M. D. Chamarabagawalia, (74) at p. 918,about the use of American decisions, and stated as follows:
“In Express Newspapers (Private) Ltd. u. Union, (75)[pp. 121-122), Bhagwati-J. said that there was a paucity ofauthority in India on the nature, scope and extent of thefundamental right to the freedom of speech and expressionand he added:. . the fundamental right to the freedom of
speech and expression enshrined in . . . our Constitution isbased on the provisions in Amendment I of the Constitution ofthe United States . . . and it would be therefore legitimate and
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and Others (Amerasinghe, J.)
proper to refer to those decisions of the U. S. SupremeCourt to appreciate the true nature, scope and extent of thisrigh t in spite of the warning administered by this Court againstthe use of American and other cases.”
It is submitted that the provisions of the two Constitutionsas to freedom of speech and expression are essentiallydifferent, the difference being accentuated by provisions inour Constitution for preventive detention which have nocounterpart in the U. S. Constitution. The First Amendmentenacts an absolute prohibition, so that a heavy burden lies onanyone transgressing it to justify such a transgression.Again, since the Amendment contains no exceptions, it is notsurprising that exceptions have had to be evolved by judicialdecisions which have limited the scope of such exceptions withincreasing stringency. The position in India is different. Theright to the freedom of speech and expression, and thelimitations on that right are contained in Article 19(l)(a) readwith sub-Art. (2). Laws which fall under sub-Art. (2) areexpressly permitted by our Constitution and the problemin India is to determine whether an impugned law fallswithin Article 19(2), and that is essentially a problem ofconstruction. No doubt Article 19(2) authorises the impositionof "reasonable restrictions”, and in the end, the question ofreasonableness is a question for the Court to decide. However,a law made in respect of the matters referred to in Article 19(2)must primafaciebe presumed to be constitutionally valid anddue weight must be given to the legislative judgment on thequestion of reasonableness, though that judgment is subjectto judicial review. It is difficult, if not impossible, to read intothe words "reasonable restrictions” the test of "clear andpresent danger” evolved by the U. S. Supreme Court in dealingwith the freedom of speech and the press. The differencebetween the First Amendment and Article 19(l)(a) was notedby Douglas J. in Kingsley [International Pictures/ Corporation v.Regents of the University of New York, (76). In holding that allpre-censorship of cinema films was constitutionally void, hesaid: “If we had a provision in our Constitution for “reasonable”
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regulation of the press, such as India has included in hers,there would be room for argument that censorship in theinterest of morality would be permissible."
The above submission is reinforced by the fact thatpreventive detention for reasons connected with the securityof a State, the maintenance of public order and themaintenance of supplies and services essential to thecommunity is a subject of concurrent legislative power . . .and Article 22(3) . . . provides safeguards of a very limitednature in respect of such detention . .
Admittedly, no restrictions on the exercise of the freedomof speech were specified in the First Amendment. However, theU. S. Supreme Court, from the now famous “footnote 4" of theopinion of Chief Justice Stone in United States u. CaroteneProducts Co., (77) through Brcmdenberg v. Ohio, (78), and Hessv. Indiana, (79) has interpreted the First Amendment innumerous cases and evolved guidelines, on the one hand, toprotect free speech, and, on the other, to ensure the safety ofthe State and protect other interests. Admittedly, due regardmust be had to the fact that an inquiry as to the exercise ofthe permissible restrictions under the law of Sri Lankainvolves essentially a matter of construction by our owncourts. Nevertheless, although we are not bound by theopinions of the U. S. Supreme Court, yet in the interpretationof our own Constitutional provisions, especially those thatimpinge and impact on the value of free speech in a democraticState, and concepts relating to matters expressly referred to inour own Constitution, e. g. “national security”, “public order",“the protection of public health or morality”, "securingdue recognition for the rights and freedoms of others”, and“meeting the just requirements and the general welfare of ademocratic society”, some of the opinions expressed by theU. S. Supreme Court are of great usefulness and of persuasiveauthority, for they are concepts essentially developed overmany years by the U. S. Supreme Court, although morerecently, and not less importantly, by other domestic courts,
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and Others (Amerasinghe, J.)
including the Supreme Courts of Sri Lanka and India, andby international bodies like the European Commission forHuman Rights and Courts like the European Court for HumanRights. Divergent approaches must be expected, and weshould proceed with caution, although, in my view, that is nota good ground for looking at one’s own Constitution wearingblinkers.
Jeremy McBride, Widening Case Law Horizons, Vol. 1No. 4, Interights Bulletin, 1986, at pp. 8-10, dealt withthe question of the use of precedents from other systems inthe interpretation of international instruments. However, hisobservations with regard to interpretation deserve repetitioneven with regard to the interpretation of Constitutionalprovisions and domestic legislation. McBride said,
"Differences of this kind are not necessarily undesirableor impermissible even though the treaties involved seek toprotect many of the same basic rights and freedomsand subject them to similar restrictions. After all theframework, language and political background of the variousinstruments is not the same. The universality of human rightsis, therefore, out of the question, at least as far as the detailedunderstanding of individual rights and freedoms is concerned.However, although uniformity in interpretation may beprecluded by the terms of the treaties themselves, this cannotbe true of the major concepts underlying them since allshare a common acknowledged lineage back to the UniversalDeclaration. While therefore the autonomous meaning of eachinstrument can be insisted upon, it does not follow that thecase law emanating from one system should be regarded as.irrelevant to another.”
I agree that the universality of human rights is “out of thequestion, at least as far as the detailed understanding ofindividual rights and freedoms is concerned.” Universality isaspirational. However, we might cooperate in the ongoingeffort to make universality a reality, although we ought to be
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vigilant in preserving our own values, despite attempts byspecious promises or plain bullying to jetisson those things wein our communities hold to be of intrinsic worth. We might, ifwe proceed cautiously, derive assistance from the decisions ofother Courts elsewhere, in appropriate cases, the Court beingcircumspect and attentive to all the circumstances affecting itsdecision.
I should like to make reference to some of the BangalorePrinciples declared by Commonwealth Jurists on 26 February1988, at the end of a colloquium on The Domestic Applicationof Human Rights Norms. Interights Bulletin, Vol. 3, 1988, No. 1
p. 2.
I must emphatically state that 1 do not subscribe to anyof the other views stated in the Bangalore Principles.
“2. . . . international human rights instruments provideimportant guidance in cases concerning fundamental rightsand freedoms.
There is an impressive body of jurisprudence, bothinternational and national, concerning the interpretation ofparticular human rights and freedoms and their application.This body of jurisprudence is of practical relevance to judges•and lawyers generally.
In most countries whose legal systems are based uponthe common law, international .conventions are not directlyenforceable in national courts unless their provisions havebeen incorporated by legislation into domestic law. However;there is a growing tendency for national courts to have regardto these international norms for the purpose of deciding caseswhere the domestic law – whether constitutional, statute orcommon law – is incomplete.
While it is desireable for the norms contained inthe international human rights instruments to be stillmore widely recognized and applied by national courts, this
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process must take into full account local laws, traditions,circumstances and needs.
It is within the proper nature of the judicial processand well-established judicial functions for national courts tohave regard to international obligations which a countryundertakes – whether or not they have been incorporatedinto domestic law – for the purpose of removing ambiguityor uncertainly from national constitutions, regulation orcommon law.
However, where national law is clear and inconsistentwith the international obligations of the State concerned, incommon law countries, the national court is obliged to giveeffect to national law. In such cases the court shoulddraw such inconsistency to the attention of the appropriateauthorities since the supremacy of national law in no waymitigates a breach of an international legal obligation whichis undertaken by a country.
These views are expressed in recognition of the factthat judges and lawyers have a special contribution to makein the administration of justice in fostering universal respectfor fundamental human rights and freedoms.”
Decisions from elsewhere are, in my view, of most valuewhere the right or freedom or limiting concept is expressed inbroadly similar terms. Even when a formulation is different,the omissions, additions and drafting may shed light on theresult to be reached. To take account of the case law of anothersystem should, however, never be a back-door attempt toachieve universality at the expense of the will of States partiesto a convention, or the will of Sovereign Peoples in the case ofdomestic Constitutions.
Despite his submissions against the usefulness of lookingat the opinions of the U. S. Supreme Court, the learnedAdditional Solicitor-General himself placed reliance on thefollowing decisions of the U. S. Supreme Court: New York
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Times Company u. United States, (72); Schenck v. UnitedStates, (64); Frohwerk v. United States, (80); United States u.David Paid O’Brien, (81); and Kingsley International PicturesCorporation u. Regents of the University of the State of NewYork, (76).
Learned Counsel for the respondents submitted thatthe dicta in two judgments of the European Court of HumanRights cited by learned Counsel for the petitioner wereinapplicable, since they were concerned with the interpretationof Article 10 of the European Convention for the Protection ofHuman Rights and Fundamental Freedoms which was notin terms identical with Article 15(2) and Article 15(7) of theSri Lanka Constitution.
Article 10 of the European Convention states as follows:
“Everyone has the right to freedom of expression. Thisright shall include freedom to hold opinions and to receive andimpart information and ideas without interference by publicauthority and regardless of frontiers. This Article shall notprevent States from requiring the licensing of broadcasting,television or cinema enterprises.
2. The exercise of these freedoms, since it carries with itduties and responsibilities, may be subject to such formalities,conditions, restrictions or penalties as are prescribed by lawand are necessary in a democratic society, in the interests ofnational security, territorial integrity or public safety, for theprevention of disorder or crime, for the protection of health ormorals, for the protection of the reputation or rights of others,for preventing the disclosure of information received inconfidence, or for maintaining the authority and impartialityof the judiciary."
Admittedly, there are differences in the manner ofexpression, and we should, therefore, be cautious in applyingdecisions concerned with the interpretation of Article 10 of
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the European Convention. At the same time, as we shall see,there is much assistance to be derived from them in decidingwhether the impugned regulations were in contravention ofthe Constitution, for some of the differences, in my view, relatemore to form than substance.
ALLEGED UNCONSTITUTIONALITY OF THE IMPUGNEDREGULATIONSThere was no dispute that the impugned regulationcaused an interference with the petitioner's ability to receiveand impart information, and therefore, ex facie, there wasa transgression of her freedom of speech and expressionguaranteed by Article 14(1) of the Constitution. However,the respondents maintained that the petitioner’s rights werenot absolute, and that the exercise and operation of thepetitioner’s rights were subject to restrictions imposed interms of Article 15(7) of the Constitution, and therefore therewas no violation of Article 14(l)(a) of the Constitution.
In paragraph 14 of her petition, the petitioner admitsthat the right of free speech could be restricted, but submittedthat in the circumstances of this case the regulations of 6November 1999 were unconstitutional, having regal’d to theprovisions of Article 15(7) read with Article 155(2), and shouldbe struck down.
Learned Counsel for the petitioner submitted that theburden ofjustifying restrictions imposed under Article 15(7) isheavy. I find myself in agreement with him. Seervai. as wehave seen, said, 'The First Amendment enacts an absoluteprohibition, so that a heavy burden lies on anyone transgressingit to justify such transgression.’’ The burden, in my view,continues to be heavy even where freedom of speech isexpressed in more or less absolute terms, as it is in Article14(1)(a), but where specific provision is made elsewhere forexceptions. Exceptions must be narrowly and strictly construedfor the reason that freedom of speech constitutes one of the
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essential foundations of a democratic society which, as wehave seen, the Constitution, in no uncertain terms, declaresSri Lanka to be.
PRESCRIBED BY LAWIn order to justify the imposition of restrictions on theoperation and exercise of a citizen’s freedom of speech. Article15(7), like Article 15(2), requires that such restrictions shall be“prescribed by law". I will be referring to some of the decisionsof the European Commission of Human Rights, and theEuropean Court of Human Rights because I consider them tobe apposite, for Article 10(2) of the European Convention alsohas the requirement that restrictions must be "prescribed bylaw”. It has been held that “prescribed by law" in Article 10(2)must be given the same interpretation as the phrase “inaccordance with law", and that accessibility and foreseeabilityare two of the requirements inherent in the phrase “prescribedby law” and relate to the quality of law. Brind and Othersv. United Kingdom, (19) at p. C. D. 81; Hins and Hugenholtzv. Netherlands, (82) at p. 126; Vereniging Radio 100 et at.u. Netherlands, (51) at p. C. D. 203.
The impugned "emergency” regulations were made by thePresident under section 5 of the Public Security Ordinance.Section 5(1), enables the President to make such regulationsas appear to the President "to be necessary or expedient in theinterests of public security and the preservation of publicorder and the suppression of mutiny, riot or civil commotion,or for the maintenance of supplies and services essential to thecommunity.” Section 5(2)(d) enables the President to makeemergency regulations that appear to the President to be"necessary or expedient", inter alia, in the interests of publicsecurity, "amending any law. for suspending the operation ofany law and for applying any law with or without modification."The phrase “any law" does not empower the President in termsof section 5 of the Public Security Ordinance to amend orsuspend a provision of the Constitution, such as the guarantee
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under Article 14(l)(a) relating to freedom of speech, onthe ground of public security. This is evident from Article155(2). The power to do so is derived from Article 15(7) ofthe Constitution which enables the President to imposerestrictions on the operation and exercise of the fundamentalright of freedom of speech by regulations made under thelaw relating to public security.
The restrictions complained of were set out in a regulationmade by the President of the Republic under section 5 ofthe Public Security Ordinance, Cap. 51 of the LegislativeEnactments. The Ordinance was enacted prior to theConstitution. Article 170 of the Constitution states that "law"means any Act of Parliament, and any law enacted by anylegislature at any time prior to the commencement of theConstitution and includes an Order in Council.” Article 168(1)of the Constitution states that "Unless Parliament otherwiseprovides, all written laws and unwritten laws in forceimmediately before the commencement of the Constitution,shall, mutatis mutandis, and except as otherwise expresslyprovided in the Constitution, continue in force." Article 155 ofthe Constitution states that ‘The Public Security Ordinance asamended and in force, immediately prior to the commencementof the Constitution shall be deemed to be a law enacted byParliament." Article 155 further provides that 'The power tomake emergency regulations under the Public SecurityOrdinance or the law for the time being in force relating topublic security shall include the power to make regulationshaving the legal effect of over-riding amending or suspendingthe operation of the provisions of any law except the provisionsof the Constitution.” Freedom of speech is protected by Article14(l)(a) of the Constitution. However, the Constitution providesin Article 15(7) that the exercise and operation of that Article"shall be subject to such restrictions as may be prescribed bylaw in the interests of national security.. ."Article 15(7) statesthat “For the purposes of this paragraph "law" includesregulations made under the law for the time being relating topublic security."
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Ex Jacie, the restrictions complained of which werecontained in regulations made under section 5 of thePublic Security Ordinance, had a basis in law and were inaccordance with law.
The petititoner, however, maintained that the impugnedregulations were imprecise and vague. She stated in herpetition that “any law which confers unguided and unfettereddiscretion without narrow objectives and definite standards toguide such authority is unconstitutional." She added that “itis of fundamental importance that such a law should not beincomplete and should contain within itself all the vital andnecessary components relating to its operation, includingprecise restrictions that it seeks to impose." The impugnedregulations, the petitioner stated, were “not subject to anyrational guidelines and hence permits the authorities to applythe said regulations arbitrarily and discriminately”. Therewas, she said, a discrepancy between the Sinhala and Englishversions, “thus facilitating an arbitrary and incoherentapplication of the said regulations.”
In The Sunday Times v. The United Kingdom. (10) at p. 271,(see also Gay News u. United Kingdom. (83) at pp. 127-128;G v. Germany, (84) at p. 503; Markt Intern and Beermanv. Germany, (85) at p. 231; Times Newspapers Ltd. and Neil
u.United Kingdom, (86) at p. C. D. 55; Hinz and Hugenholtz
Netherlands. (82) at p. (26), the European Court of HumanRights stated as follows:
"In the Court’s opinion, the following are two of therequirements that flow from the expression prescribed bylaw'. First, the law must be accesible: the citizen must be ableto have an indication in the circumstances of the legal rulesapplicable to a given case. Secondly, a norm cannot beregarded as a ‘law’ unless it is formulated with sufficientprecision to enable the citizen to regulate his conduct: hemust be able – if need be with appropriate advice – to foresee,to a degree that is reasonable in the circumstances.
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the consequences which a given action may entail. Thoseconsequences need not be foreseeable with absolute certainty:experience shows this to be unattainable. Again, whilstcertainty is highly desirable, it may bring in its train excessiverigidity and the law must be able to keep pace with changingcircumstances. Accordingly, many laws are inevitably couchedin terms which, to a greater or lesser extent, are vagueand whose interpretation and application are questions ofpractice.”
The European Court of Human Rights has had occasionto recognize the difficulty or impossibility of attaining absoluteprecision in the framing of laws, especially in spheres in-whichthe situation governed by the law in question is constantlychanging. Barthold v. Germany, (11) at p. 399: Markt InternandBeerman v. Germany, (70) at p. 173; Midler v. Switzerland,(14) at p. 226. Indeed, in certain areas flexibility might bedesirable. Goodwin v. United Kingdom, (24) at p. 140. Theprovisions in question should afford sufficient protectionagainst arbitrariness and make it possible for the personsconcerned to foresee the consequences of their actions.However, the level of precision depends to a considerabledegree on the content of the instrument in issue, the field itis designed to cover and the number and status of those towhom it is addressed. Groppera Radio AG v. Switzerland, (87)at p. 341; Vereinigung Demokratischer Soldaten Osterreichsand Gubi u. Austria, (50) at p. 81.
It appears from the words of the regulations that theimpugned regulations were primarily intended for editors,publishers of newspapers and persons authorised to establishand operate Broadcasting or Television Stations. It couldbe expected that such persons, if necessary, with the help oflegal advisers, could inform themselves about the regulationsapplicable to them. The regulations imposed restrictions onthe publication and transmission of certain specified sensitiveinformation relating to what the petitioner described as “the
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ethnic conflict and the war … in the North and East." Theneed for regulations of the sort in question to be framedwithout excessive rigidity to take account of changingcircumstances is, in my view, inevitable. Indeed, as experiencehas shown, it has been necessary to amend even broadlyframed regulations, such as the Emergency (Prohibition onPublication andTransmission of Sensitive Military Information)Regulations, from time to time to take account of changingcircumstances. The regulations in question were not so vagueas to exclude any predicability, if need be with appropriateadvice, as to what act on the petitioner's part might give riseto the adverse consequences referred to in paragraphs 3 and5 of the Emergency (Prohibition on Publication of SensitiveMilitary Information) Regulations 1 of 1996. Cf. ArrowsmiLhv. United Kingdom, (88) at p. 231. Moreover, the impugnedregulations were accessible, for they were published in LheGovernment Gazette No: 1104/28 of 06 November, 1999, and,as the petitioner states, they were "announced publicly in thegovernment media.” She submitted a newspaper article insupport of the averment that the law had received publicity inthe press.
The petitioner complained that the authority was clothedwith wide powers of discretion by reason of the formulationof the regulation and by differences in the English andSinhala versions. The broadly worded nature of Lhe impugnedregulations and the differences in the Sinhala and Englishversions might have caused difficulties in interpretation.However, the mere fact that a provision may give rise toproblems of interpretation does not mean it is so vague andimprecise as to lack the quality of 'law'. Hodgson, WoolfProductions and National Union of JoumaLists and ChannelFour Television v. United Kingdom, (12) at p. 508. Nor isthe quality of law necessarily diminished by the confermentof discretion. A law conferring a discretion is not in itselfinconsistent with the requirement of foreseeability, providedthat the scope of the discretion and the manner of its exercise
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are indicated with sufficient clarity, having regard to thelegitimate aim in question, so as to give the individual adequateprotection against arbitrary interference. Brind and Othersv. United Kingdom, (19) at p. C. D. 81; Tolstoy Miloslavskyv. United Kingdom (89) at p. 468; Hins and Hugenholtzv. Netherlands, (82) at p. C. D. 126; Goodwin v. U. K. (24) atp. 140; Vereniging Radio 100 et aL u. Netherlands, (51) at p.C. D. 203; Wingroue v. U. K. (26) at pp. 26-27.
Against the foregoing background, I hold that theimpugned restrictions had a basis in law, and that as far as thequality of law was concerned, it was accessible to the petitionerand formulated with sufficient precision to enable her – if needbe, with appropriate legal advice – to foresee, to a degree thatwas reasonable in the circumstances, the consequences whicha given action may entail. Admittedly, the first respondent, theCompetent Authority’ was given a wide discretion; yet, as weshall see later in considering the question of necessity,the scope of the discretion and the manner of its exercisewere indicated with sufficient clarity, having regal'd to thepurported aim in question, to make the decisions of theCompetent Authority reviewable and to give her adequateprotection against arbitrary interference. I therefore concludethat the impugned restrictions were "prescribed by law” for thepurposes of Article 15(7) of the Constitution.
LEGITIMATE AIMIn addition to being "prescribed by law”, restrictions on theConstitutional right of freedom of speech, in order to be valid,must have a legitimate aim recognized by the Constitution.No doubt after balancing interests, albeit at a very general,wholesale level, the makers of our Constitution have in Article15 made a threshold categorization, inter alia, of the varietiesof speech that are not protected absolutely, but which may belimited by law. Channa Pieris, (3), at p. 140. Speech andexpression concerning “the interests of national security isone of them. (Article 15(7)).
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The petitioner suggested that the aim of the President inmaking the impugned regulations was not the interests ofnational security. In paragraphs 15, 16, 17 of her affidavit, shestated that, although censorship had been relaxed at a certaintime and "media personnel were also taken on conducted toursof the Northern and Eastern provinces on the initiative of the1st Respondent on every occasion that the Government claimedto have won a significant military victory in those areas", yetthe impugned regulations "tightening the censorship" weremade "following renewed fighting in the Wanni area leading toheavy loss of life, loss of territorial gains previously held bythe Army and State military equipment." The petitioner’ssubmission was that the aim of the impugned regulationswas to prohibit the publication of information that wasembarrassing to the Government, rather than to protectnational security. As such, the regulations offended "theestablished principle in international law that restrictions onfreedom of expression based on national security interestswould not be legitimate if their genuine purpose or demonstrableeffect is to protect interests unrelated to national security,such as to protect a Government from embarrassment orwrongdoing or to entrench a particular ideology." (Videparagraph 24 of the petitioner's affidavit.) In paragraph 10of her petition, the petitioner stated that "it is of extremeimportance that the pretext of national security is not used toplace unjustified restrictions on the exercise of these freedoms.”
Learned counsel for the petitioner cited the following dictafrom New York Times v. U. S. (72): “. . . the Founding fathersgave the free press the protection it must have to fulfill itsessential role in our democracy. The press was to serve thegoverned, not the governors . . . only a free and unrestrainedpress can effectively expose deception in government."(Justice Black). ‘The dominant purpose of the 1st Amendmentwas to prohibit the widespread practice of governmentalsuppression of embarrassing information . . . secrecy ingovernment is fundamentally anti democratic, perpetuating
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bureaucratic errors. Open debate and discussion of publicissues are vital to our national security.” (Justice Douglas)
Justices Black and Douglas argued that no system ofprior restraint was ever justified. Yet, the fragmented Court,which decided the case in nine separate opinions by a sixto three majority, agreed on only two general themes -any system of prior restraint of expression bears a heavypresumption against its constitutional validity, and theGovernment carries a "heavy burden" to justify enforcingany system of prior restraint. As we have seen, prior restraintis not per se impermissible. Even Near u. Minnesota, (90),which firmly embedded the prior restraint doctrine inAmerican jurisprudence, did recognize three "exceptionalcases" justifying prior restraint.
The Times case was considered by this Court inWickremasinghe v. Edmund Jayasinghe, (91). In that case, thepetitioner, the Chief Editor and publisher of a newspaper,alleged that his fundamental rights guaranteed by Articles 12and 14(1) (1) had been infringed by the application of theEmergency (Restriction of Publication of and Transmission ofSensitive Military Information) Regulation No. 1 of 1995.1 havealready resproduced those regulations in my judgment.Justice Kulatunga (with whom G. P. S. de Silva, C. J.,and Ramanathan, J. agreed) at pp. 307-308 said that theNew York Times case:
“. . . involved a restraint on newspapers against apublication which appears to relate to a war situation . . . Thatcase is clearly distinguishable for the reason that the policyunder discussion there was the involvement of the UnitedStates of America in the affairs of a foreign state.
In the instant case, it cannot be said that the occasionand manner of pre-censorship is arbitrary. The Governmentis faced with a serious civil war. The matters in respect ofwhich censorship is imposed are specified. The restriction is
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against the publication of matters which could be classifiedas ‘sensitive information’. All such matters relate to theprosecution of the war. Hence, the impugned censorshipcannot be described as a blanket censorship; clearer guidelinesmay not be demanded in the present circumstances."
Learned counsel for the petitioner was critical of thejudgment in Wickremasinghe’s case. He said, ‘The Court wasclearly influenced by the assumption that there was a warsituation’ and there must be some curtailment of the freedomto publish . . . Kulatunga, J. only saw that the situation wasdifferent without considering the underlying reasons whichconsequently apply even when a “Government is faced with aserious civil war", as the learned judge put it. It is respectfullysubmitted that pre-censorship by the Emergency Regulationswas not properly addressed for over-breadth and vagueness bythe intrusion of “serious civil war" into the picture."
I am unable to agree with the submissions of learnedcounsel for the petitioner. 1 shall later in my judgment dealwith the question of over-breadth, but for the present I shouldlike to observe that the question of over-breadth was notoverlooked by Kulatunga, J. At p. 304, His Lordship did saythat'The Court will no doubt consider whether the regulationsare bad for over-breadth.” His Lordship also, atp. 308, rejectedthe demand for “clearer guidelines” and therefore hadaddressed his mind to the question of “vagueness”. I have inthis judgment dealt wiLh the question of vagueness atsome length, and hold that tire authorities amply justify theconclusion reached by Kulatunga, J. Yes, indeed Kulatunga,J. was clearly influenced not only by “the assumption” thatthere was a “war situation" but, as acknowledged by thepetitioner herself, that there was indeed such a situation. Itwas a matter of central importance.
The importance of freedom of speech in a democracycannot be overstated. Nevertheless, there are occasionswhere that importance must give way to other considerations.
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National security is one such consideration. Notwithstandingthe dicta of Justices Black and Douglas in the New York Timescase (72), cited by learned counsel for the petitioner, there is,as we shall see, abundant judicial support in the opinions ofthe United States Supreme Court and internationally for theproposition that when a nation’s security and integrity is atstake, all else, including the cherished, constitutionallyassured, freedom of speech must take second place. Wemust not lose sight of priorities. Indeed, at paragraph 04 ofthe written submissions of learned counsel for the petitioner,citing Donna Gomien, David Harris and Leo Zwak, Lawand Practice of the European Convention on Human Rightsand the European Social Charter, it is quite properlyacknowledged that international human rights jurisprudencepermits “derogations from human/fundamental rights intimes of war or public emergency.” This is the case not onlywhere national constitutions or international conventionspermit such derogations, but even in countries, such as theUnited States, where no express constitutional, provisionis made for the imposition of restrictions in times of waror national emergency. E. g. see Schenck v. United States,(64); Frohwerk v. United States, (80); Debs v. United States,(92).
It has never been doubted that when a government is inthe throes of a struggle for the very existence of the state, thesecurity of the community may be protected. Justice Brandeisobserved in Whitney v. California, (8), (followed in Ekanayakev. HerathBanda, (93), Amaratungav. SirimaL, (94) and ChannaPieris v. Attorney-General, (3) at p. (138), “. . . But althoughthe rights of free speech and assembly are fundamental,they are not absolute. Their exercise is subject to restriction,if the particular restriction proposed is required in orderto protect the state from destruction or from serious
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injury, political, economic or moral." In Dennis u. United.Stales, (71), Chief Justice Vinson said, . . Overthrow of thegovernment by force and violence is certainly a substantialenough interest for the government to limit speech". InSchenck v. United States. (64), Holmes, J. – one of the mosteloquent and enthusiastic advocates of free speech – said,“When a nation is at war many things that may be said intimes of peace are such a hindrance to its effort thattheir utterance will not be endured so long as men fightand that no Court could regal’d them as protected by anyConstitutional right."
The petitioner furnished the Court with a copy of adocument entitled ‘The Johannesburg Principles on NationalSecurity, Freedom of Expression and Access to Information."and placed great reliance on that document. According to the“Introduction" to that document, the “Principles were adoptedon 1st October 1995 by a group of experts in international law,national security, and human lights convened by Article 19,the International Centre Against Censorship, in collaborationwith the Centre for Applied Legal Studies of the Universityof the Witwatersrand, in Johannesburg.” The preamble tothe document, inter alia, states that the ‘principles' aremeant to “discourage governments from using the pretextof national security to place unjustified restrictions on theexercise of "freedom of speech and expression". Whilerecognizing that restrictions may be placed in the interestsof national security, the ‘principles’ state that they shouldbe prescribed by law, and have "the genuine purposeand demonstrable effect of protecting" "a country’s existenceor its territorial integrity against the use or threat of force,or its capacity to respond to the use or threat of force".“A restriction sought to be justified on the ground ofnational security is not legitimate if its genuine purpose ordemonstrable effect is to protect interests unrelated tonational security, including for example, to protect a
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government from embarrassment or exposure of wrongdoing,or to conceal information about the functioning of itspublic institutions, or to entrench a particular ideology or tosuppress industrial unrest.”
In paragraphs 28 and 29 of the petition, it is'stated thatany citizen or political party was entitled to seek, receive andimpart information on the “policy of the Government on theethnic conflict and the war and has the concomitant rightto seek, receive and impart information on the militarystrategies and drawbacks in the conduct of the militaryoperations in the North and East.” In paragraph 29, thepetitioner states that “as a social/human rights activistconcerned about the ethnic conflict and the war in the Northand East, she has actively taken part in debates to resolve thesaid conflict and hence she is required to know the correctposition with regard to the long drawn out war between theArmed Forces and the LTTE . . .”
There is an acknowledgment by the petitioner of theexistence of a violent conflict in the North and East between theAnned Forces and the LTTE. The regulations are called the“Emergency (Prohibition on Publication and Transmission ofSensitive Military Information) regulations." The text of theimpugned regulations makes it abundantly clear that thematerial that has to be published with the approval of theCompetent Authority relates to matters pertaining to theForces engaged in the Northern and Eastern provinces andtheir operations in those areas. Admittedly, the impugnedregulation followed soon after what the petitioner described as“renewed fighting in the Wanni area leading to heavy loss oflife, loss of territorial gains previously held by the Armyand State military equipment.” The petitioner submittednewspaper reports of what was described as “a humiliating
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debacle**, and suggesting that it was caused, by the negligenceof “the top brass.” The petitioner pointed to the fact that,whereas the earlier regulation contained the words "orany statement pertaining to the official conduct or theperformance of the Head or any member of any of the ArmedForces or the Police Force*’, the impugned regulations had thewords, “or any statement pertaining to the official conduct,morale or the performance of the Head or of any member of theArmed Forces or the Police Force or of any person authorisedby the Commander – in – Chief of the Armed Forces for therendering of assistance in the preservation of nationalsecurity.” The reasons for the changes were explained by theCompetent Authority in a statement published in the pressand submitted to us by the petitioner. He said that “somemedia institutions distorted news relating to the war in theNorth-East (sic.) which has led to pain of mind to the soldiersand their parents and the morale of the troops." The petitionerdoes not dispute that. Her irrelevant response was that theCompetent Authority failed to identify the “irresponsiblemedia institutions."
The petitioner, in my view, has failed to show, in terms ofPrinciple 2(b) of the “Johannesburg Principles" that “thegenuine purpose or demonstrable effect” of the regulation was“to protect [the] government from embarrassment or exposureor wrongdoing”. Nor has she shown that the protection ofnational security was a “pretext”. It was observed in UnitedStates v. O’Brien, (81) at para. 15, th^t
“It is a familiar principle of constitutional law thatthis Court will not strike down an otherwise constitutionalstatute on the basis of an alleged illicit legislative motive.As the Court long ago stated: The decisions of this Court
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from the beginning lend no support whatever to theassumption that the judiciary may restrain the exercise oflawful power on the assumption that a wrongful purpose ormotive has caused the power to be exerted. “McCray v. UnitedStates, (95). This fundamental principle of constitutionaladjudication was reaffirmed and the many cases werecollected for the Court in State ofArizona v. State of California,283 U. S. 423, 455, 51 S. Ct. 522, 526, 75 L. Ed. 1154(1931).”
NECESSARY IN A DEMOCRATIC STATEMr. Goonesekera submitted that the regulation had tobe shown to be necessary in a democratic state. On theother hand, Mr. Marsoof argued that, although the phrase"necessary in a democratic state” was found in Article 10(2) ofthe European Convention, it was not a requirement stipulatedin Article 15 of our Constitution, and therefore ought not tobe read into the Constitution.
On this matter, I find the submission of the AdditionalSolicitor-General to be unpersuasive. Admittedly, the phrase“necessary in a democratic society” is not to be found in Article15 of the Constitution. Nevertheless the ideas encapsulated inthat phrase, and therefore the opinions of the EuropeanCommission and the judgments of the European Court inconstruing that phrase, are relevant as sustaining the logicof our own Constitution with regard to the imposition ofrestrictions on the operation and exercise of the fundamentalright of freedom of speech and expression guaranteed byArticle 14(1) (a).
Sri Lanka, as we have seen is a representative democracyin which freedom of speech and expression is a cornerstone.
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That is the defining context for the interpretation ofrestrictions imposed by Article 15 on the fundamental right offreedom of speech guaranteed to citizens in our representativedemocracy by Article 14(1) (a). Cf. per Fernando J., inKarunathilaka and Another v. Dayananda DissanayaJce.Commissioner of Elections and Others, (36) at p. 173:Re Compulsory membership of journalists' association, (2) atp. 174.
In Malalgoda u. A. C. & Another. (97) at pp. 784-785Soza, J., having referred to the observations of Seervaion the differences between the Indian and AmericanConstitutions, and noting that the ‘clear and present danger’test had been rejected by the Indian Supreme Court, since theIndian Constitution had provided instead for the test of‘reasonableness’, went on to state that “the limitations to theright of freedom of speech are in Sri Lanka prescribed-in moreabsolute terms than in India. In Sri Lanka, the operation andexercise of the right to freedom of speech are made subject torestrictions of law not qualified by any Lest of reasonableness.Neither the validity nor the reasonableness of the law imposingrestrictions is open to question unlike in America or India.This is not to say of course that the Court should not bereasonable in applying the law imposing restrictions. Freedomof speech in Sri Lanka therefore is subject to such restrictionsas the law may impose under the heads mentioned in Article15(2).” In that case, the petitioner had complained that thePolice had seized a book published by him. It was defamatoiy,but the petitioner contended that his fundamental rightof freeedom of speech and expression had been violated.The court held that “so far as concerns the case beforeus freedom of publication means that the applicantmay publish whatever will not expose him to a prosecutionor a civil action for defamation. In exercising his fundamental
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right of freedom of publication he cannot shake offthe constraints imposed by law. The freedom of publicationdoes not include the licence to defame and vilify others.”
Article 28(e) states that the exercise and enjoyment ofrights and freedoms is inseparable from the performance ofduties and obligations, and accordingly it is the duty of everyperson in Sri Lanka to respect the rights and freedoms ofothers. Article 15(2) states that the exercise and operation ofthe fundamental right of freedom of speech and expressiondeclared and recognized by Article 14(l)(a) shall be subject tosuch restrictions as may be prescribed by law, inter alia, inrelation to defamation. In terms of Article 15(7) the exerciseand operation of the right of freedom of speech is “subject tosuch restrictions as may be prescribed by law . . . for thepurpose of securing due recognition and respect for therights and freedoms of others.” However, with great respect,“subject to” not only means subject to a restriction set outin Articles 15(2) and 15(7) but includes, in my view, anassessment of a restriction purported to be imposed underArticle 15(2) or 15(7) from the point of view of necessity,unless the law is an “existing law ” within the meaning of Article16(1) of the Constitution. In the case of defamation, thiswould require an examination of the law imposing theinterference with a person’s freedom of speech, if it is not an“existing law”, as well as the application of the law in theparticular circumstances of a case. Cf. Ungens andLeitgens v.Austria. (98) at pp. 393-394. In some cases, it may be foundthat the law of defamation or conviction for defamation orsome measure taken to protect the reputation of others maybe disproportionate to the aim pursued, and therefore anunnecessary interference with freedom of speech. E. g. seeApp. No. 11508/85 v. Denmark, (13); Thorgeirson v. Iceland,
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(18); Oberschlick v. Austria, (22); Tolstoy Miloslavsky u. U. K..(89); Cf. CasteUs u. Spain, (17) at p. 478 where the prosecutionwas for insulting the government. In others, it may be foundthat the measures taken were necessary to protect thereputations of others. E. g. see App. No. 12230/86 u. Germany.(99); Barfod v. Denmark, (100); Praeger and Oberschlick o.Austria, (46). However, in deciding on the constitutionalvalidity of a restriction imposed on freedom of expression,otherwise than by an "existing law", there must be anexamination of its need.
"Necessity” is inherent in Article 15(7) read with Article155(2). The Supreme Court has already recoguized the conceptof necessity in deciding whether regulations restrictingfreedom of speech and expression are Constitutionallyvalid. In Joseph Perera u. The Attorney General and Olhers.l 1),at pp. 216-217 Sharvananda, C. J. said:
‘The Regulation to be valid must satisfy the objective test.Though the Court may give due weight to the opinion of thePresident that the regulation is necessary or expedient in theinterests of public security and order, it is competent to theCourt to question the necessity of the Emergency Regulationand whether there is a proximate or rational nexus betweenthe restriction imposed on a citizen’s fundamental right byemergency regulation and the object sought to be achievedby the regulation. If the Court does not find any such nexusor finds the activities which are not pernicious have beenincluded within the sweep of the restriction, the Court is notbarred from declaring such regulation void as infringingArticle 155(2) of the Constitution."
It was held that the impugned Emergency Regulationin that case, requiring police permission for publication,
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imposed a form of prior restraint abridging the freedom ofexpression that was invalid and incapable of forming the basisof any law. See especially the observations of Sharvananda,C. J. at pp. 216-217. The Court’s reasoning was that the powerto make emergency regulations did not include the power toover-ride, amend or suspend the operation of the provisions ofthe Constitution, except in accordance with the provisions ofthe Constitution. Constitutionally valid restrictions on thefundamental right of freedom of speech and expression inthe interests of national security and public order could onlybe imposed in terms of Article 15(7). Since, in its view, therewas no proximate or rational nexus between the restrictionimposed and the object sought to be achieved by the regulationnamely, the interests of national security and public order,and since the regulation conferred an unfettered discretion ona public authority in enforcing the regulation, the regulationwas, as the Chief Justice said at p. 230, "unconstitutionallyover-broad”. The regulation was held to be unconstitutional-,since it violated Article 155(2) of the Constitution whichprohibited the amendment or suspension of the operation ofArticle 14(1) (a) except in accordance with the provisions ofArticle 15(7).
In Wickramasinghe v. Edmund Jayasinghe, (91),Kulatunga, J. at p. 304, after stating that regulations madeby the President under the Public Security Ordinance will notbe struck down by the Court "unless there are good groundsfor doing so”, added: ‘The Court will no doubt considerwhether the regulations are bad for over-breadth and impingeupon fundamental rights.”
In The Sunday Times u. U. K., (10) the European Courtof Human Rights observed at p. 268 that the applicantscomplained of continuing restraints “as a result of over-breadth
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and lack of precision of the law of contempt of court. InOpen Door Counselling and Dublin Well Woman v. Ireland. (10)at p. 266, that Court, in considering the question ofproportionality, held that “the sweeping nature of therestriction" made it "over-broad and disproportionate."
In Wickremabandu u. Herath and Others, (101) at p. 358.H. A. G. de Silva, J. (Fernando J. agreeing) said: “Article 15(7)permits, inter alia, restrictions in the interests of nationalsecurity and public order. The learned Attorney-Generalcontends that the Court could not interpolate “reasonable"into that provision, and hence could not inquire intothe reasonableness of a restriction. It is not a matter ofinterpolation, but of interpretation: can we assume that thepower conferred by the Constitution was intended to be usedunreasonably, by imposing the reasonable restrictions onfundamental rights? The State may hot have any burden ofestablishing the reasonableness of the restrictions placedby law or Emergency Regulations, but if the Court is satisfiedthat the restrictions are clearly unreasonable, they cannot beregarded as being within the intended scope of the powerunder Article 15(7).”
It has been held that “necessary", while not synonymouswith ‘indispensable’, implies a ‘pressing social need', ReCompulsory membership of journalists' association, (2) atp. 176; Lingens u. Austria, (47) at p. 418; Lecmder v. Sweden,(60) atp. 452; Hodgson and Others v. U. K., (12) atp. 508; Mark!.Intern and Beerman v. Germany. (85) at p. 232; Muller u.Switzerland, (14) at p. 227; The Sunday Times u. U. K. (No. 2).(16) at p. 234; Castells v. Spain, (17) at p. 461; Jersild u.Denmark, (20) at p. 14; Hins and Hugenholtz u. Netherlands.(82) at p. C. D. 126; Goodwin u. U. K., (24) at p. 143; Bowmanv. U. K. (103) at p. C. D. 17; and, therefore, for a restriction
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to be ‘necessary’ it is not enough to show that a restrictionwas useful’ ‘reasonable’ or ’desirable’. The Sunday Times v.U. K., (1979 (10) at p. 275; G. v. Germany, (84) at p. 504;Barthold v. Germany, (11) at p. 402. Necessity must beconvincingly established. Thorgeirsonv. Iceland (18) atp. 865;Blind and Others u. U. K., (19) at p. C. D. 82; Autronic AG v.Switzerland, (104) at p. 503; Weber u. Switzerland, (105) atp. 523; Hlns and Hugenholtz v. Netherlands, (82) at p. C. D.126; Goodwin v. U. K., (103) at p. C. D. 17; Adams andBennv. U. K. (25) at p. C. D. 164.
The ‘necessity’ requirement involves a review of whetherthe restrictions are proportionate to the legitimate aimpursued. G. v. Germany, (84) at p. 504; Leander v. Sweden,(60) atp. 452; Rohrv. Switzerland, (102); The Sunday Times v.U. K. (No. 2), (16) at 234. Proportionality is, in my view, inherentin Article 15(7) read with Article 155(2) of the Constitution.Cf. Joseph Perera, (1) at pp. 215-217; and Wickramasinghe(91) at p. 304, just as it is inherent in Article 10(2) ofthe European Convention. Gay News U. K., (83) at p. 130.A restriction, even if justified by compelling governmentalinterests, such as the interests of national security, must beso framed as not to limit the right protected by Article 14(1) (a)more than is necessary. That is, the restriction must beproportionate and closely tailored to the accomplishmentof the legitimate governmental objective necessitating it.Re Compulsory membership of journalists' association, (2) atp. 176.
"Necessity” and, hence, the legality of restrictions imposedunder Article 15(7) on freedom of expression, depend upon ashowing that the restrictions are required by a compellinggovernmental interest. If there are various options to achievethis objective, that which least restricts the right protected
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must be selected. Even though the governmental pu rpose belegitimate and substantial, that purpose cannot be pursued bymeans that broadly stifle fundamental liberties of citizenswhen that end can be narrowly achieved. The breadth oflegislative abridgement must be viewed in the light of lessdrastic means for achieving the same basic purpose. Sheltonv. Tucker, (106) (U. S.) at p. 488 (S. Ct.) at p. 252. Given thisstandard, it is not enough to demonstrate, for example, that aregulation performs a useful or desirable purpose; to becompatible with the Constitution, the restrictions must bejustified by reference to governmental objectives which,because of their importance, clearly outweigh the social needfor the full enjoyment of the right Article 14(1)(a) guarantees.Cf. Re Compulsory membership of journalists' association,(2) at p. 176.
In Joseph Perera's case, (1) at pp. 228-229, Sharvananda,C. J. stressed the need for regulations restricting freedom ofspeech to be drawn with “narrow specificity". His Lordshipsaid: ‘There can be no doubt of the Government s interest inprotecting the State from subversion. But "even though theGovernment’s purpose be legitimate and substantial, thatpurpose cannot be pursued by means that broadly stiflefundamental personal liberties when the end can be morenarrowly achieved.’ Shelton v. Tucker, (106) at p. 488." Thedifficulty, however, is striking a fair balance when makingsuch regulations. Thus in Brind and Others u.U.K.,( 19) at pp.C. D. 83-84, the European Court of Human Rights hadadverted to the special problems involved in combattingterrorism, and observed that “the Commission has no doubt asto the difficulties involved in striking a fair balance between therequirements of freedom of information – especially the freeflow of information from the media – and the need to protectthe State and the public against armed conspiracies seeking
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to overthrow the democratic order which guaranteesthis freedom and other human rights.” In the instant case,attention should be drawn to the fact that the regulationshave been amended from time to time. The petitioner pointsout that this may have been in response to public andinternational criticism. On the other hand, the respondentsmaintain that the regulations have been amended from timeto time to take account of changing circumstances and asa response to the needs of the time. In the instant case,given the difficulties involved, I am of the view that theimpugned regulation succeeded in striking a fair balancebetween the free flow of information and the legitimate aimof protecting national security and that the restrictionswere proportionate and tailored with sufficient closeness tothe accomplishment of the governmental aim necesitatingthem.
The Court is not required to deal with the question ofnecessity in a general and abstract manner, but only in so faras the facts in a particular case are concerned. Markt Internand Beerman u. Germany, (85) at p. 232. The criterion of"necessity" cannot be applied in absolute terms but calls forthe assessment of various factors. These include the nature ofthe right in question, the degree of interference, the nature ofthe public interest and the extent to which it needed to beprotected in the particular circumstances. App. No. 12230/86v. Germany, (99) at p. 102.
I have explained the importance of the right in question:In sum, freedom of speech and expression is the cornerstoneof our representative democracy.
At the same time, due account must be taken of the factthat the aim of the regulation was the protection of national
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security within the meaning of Article 15(7). In order to verifythat the interference was not excessive in the instant case, afair balance between competing interests must be struck: therequirement of protecting national security must be weighedagainst the petitioner’s right of free speech and expression.Cf. Groppera Radio AG u. Switzerland, (87) at p. 343: Barfod u.Denmark (100) at p. 499. In matters of this nature, theinterests of society as a whole must be considered.Otto Preminger Institute v. Austria, (21) at p. 59. The notion“necessary”, as we have seen, implies” a pressing social need".This may include the “clear and present danger" test, asdeveloped by the American Supreme Court, pace Seervai, andthe question "pressing social need”, must be addressed in thelight of the circumstances of a given case. Arrowsmith v. U. K..(88) at p. 233. On the three phases in the development of the‘clear and present danger’ doctrine, see Nowak, Rotunda andYoung, Constitutional Law, 3rd Ed., pp. 853-874.
In the instant case, there is, as the petitioner herselfstates a “war” between the LTTE and the Government Forces.Judicial notice of the fact that “the Government is faced witha serious civil war” was taken by this Court in Wickramasinghev. Edmund Jayasinghe, (91) at p. 307. Terrorism is a tactic thatis resorted to by the LTTE in that “war”. That is a matter thatis well and widely known, and of which judges of this Courthave taken cognizance. See Visuvalingam&Others v. Liyanage,(28) at p. 333. Terrorism not only hurts, but tends to destroydemocracy and democratic institutions. There are imminentdangers threatening the free, democratic constitutional orderof the Republic of Sri Lanka. In such a situation, nationalsecurity must take precedence over the right of free speech,for, as Chief Justice Vinson observed in Dennis v. U. S., (71),the safety of the nation is “the ultimate value of society. For if
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a society cannot protect its very structure from armed internalattack, it must follow that no subordinate value can beprotected.”
In Visuvalingam & Others v. Liyanage, (27) at p. 375,Soza, J. said:t
“The Government, too, undoubtedly values the freedomof the Press and believes that democracy will sustain itselfbest, as it has been said, in the free market of ideas . . . But attimes of national crisis, the safety of the nation becomesparamount and some inroads have of necessity to be made intothe freedom of the Press . . .’’In Siriwardene and Others v.Liyanage (107) at p. 187 Wimalaratne, J. (Ratwatte, Colin-Thome, Abdul Cader, Rodrigo, JJ., agreeing) said: “In aword, there are essential limits on the rights to publish. Thelimitations are greater when a nation is at war or under a stateof emergency …”
In Klass and Others v. Federal Republic of Germany, (108)the complaint to the European Court of Human Rights relatedto legislation granting powers of secret surveillance. The Court,at p. 232, said that it could not “but take judicial notice of twoimportant facts. The first consists of the technical advancesmade in the means of espionage and, correspondingly, ofsurveillance; the second is the development of terrorism inEurope in recent years. Democratic societies nowadaysfind themselves threatened by highly sophisticated forms ofespionage and by terrorism, with the result that the Statemust be able, in order to effectively counter such threats,to undertake the secret surveillance of subversive elementsoperating within its jurisdiction. The Court has thereforeto accept that the existence of some legislation grantingpowers of secret surveillance over the mail, post and like
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communications, is under exceptional conditions, necessaryin a democratic society in the interests of national securityand/or for the prevention of disorder or crime." The Court,having examined the contested legislation and the manner ofits application concluded at p. 237 that the interferenceresulting from that legislation was "necessary in a democraticsociety in the interests of national security and for theprevention of disorder”. The decision was followed inG. v. Germany (84) at p. 504; and in App. No. 10628/83u. Switzerland, (109) at p. 109.
The impugned regulations were stated to be “Emergency(Prohibition on Publication and Transmission of SensitiveMilitary Information) Regulations. They applied to informationpertaining to specified matters, namely, "military operationsin the North and East, including any operation carried outor being carried out or. proposed to be carried out by theArmed Forces or by the Police Force (including the SpecialTask Force), the deployment of troops or personnel or thedeployment or use of equipment including aircraft in navalvessel by any such forces, or any statement pertaining to theofficial conduct, morale or the performance of the Head or of anymember of the Armed Forces or the Police Force or of any personauthorised by the Commander-in-Chief of the Armed Forces forthe purpose of rendering assistance in the preservation ofnational security. ”
The emphasis is mine. One of the petitioner's principalconcerns was with the provision protecting the conductand performance of the persons referred to in the wordsemphasised. As we have seen, the explanation given for theprotection of the persons designated was to prevent a recurrenceof attacks of the nature that had been made leading to thedemoralization of the Armed Forces. While the preservation of
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the morale of the Armed Forces is an important matter, yet, aswe have seen, in a democracy, freedom of speech performs avital role in keeping in check persons holding public office.For a citizen to keep a critical control of the exercise ofpublic power, it is essential that particularly strict limits beimposed on the publication of information which refers tothe activities of public authorities. App., No. 11508/85 v.Denmark, (110) at p. 561. Relying on the decision of this Courtin Joseph Perera’s case, (1), and particularly on the dicta ofSharvananda, C. J. at p. 217 and p. 230, learned counsel forthe petitioner submitted that the impugned regulation was“over-broad" and "disproportionate” for two reasons. First, ifthe aim of the regulation was, as explained by the firstrespondent in his affidavit, inter alia, to ensure that the moraleof government forces in the North and East was sustained,the manner in which the regulation was framed did not confinethe restrictions to the conduct of the persons in the North andEast. The restrictions were applicable to the conduct of thepersons in the other parts of the State as well and there wastherefore no nexus between the stated aim and the regulationframed. Secondly, citing examples from newspapers, learnedcounsel submitted that the Competent Authority in practicearbitrarily censored information that was not covered by theterms of the regulations.
With regard to the first matter, I agree there was ambiguity.However, where there is ambiguity, such provisions,since they impinge on Constitutionally guaranteed rights,must be interpreted restrictively. Therefore, the meaningto be ascribed to the words objected to must be thatthey applied to information concerning such personswith regard to their activities in the North and the East. Thisinterpretation is reinforced by the Sinhala version which
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leaves no doubt as to the intention of the maker of theregulations.
I agree that where laws, including regulations, vestin administrative officials a power of censorship overcommunications not confined within standards designed tocurb the dangers of arbitrary or discriminatory action, suchlaws, being unnecessary to achieve even a legitimate aim maybe struck down as being over-broad. Looell u. Griffin, (1 1 1);Cantwell v. Connecticut, (112), Saia u. New York, (113); Kunzv. New York, (114). The "breadth" with which those caseswere concerned was the breadth of unrestricted discretionleft to a censor, which permitted him to make his ownsubjective opinions the practically unreviewable measure ofpermissible speech. That is not so in the instant case. Unlikein Joseph Perera's case (1) at p. 230, the authority was notgiven a “naked and arbitrary power . . . without any guidingprinciple to regulate the exercise of' the Competent Authority'sdiscretion. There was no mention in the impugned regulationin that case of the reasons for which an application to publishmay have been refused. In the instant case, however, the mattersfalling within tire Competent Authority's purview are, in myview, set out with sufficient clarity to make the decisionsreviewable.
The petitioner's case is that the examples cited from thenewspaper articles showed that there had been an improperexercise of the powers of the Competent Authority. H. A. G. deSilva, J. (Fernando J. agreeing) observed in Wiclcrcunahandu u.Herath and Others, (101) at p. 358, that the fact that a powermay be abused does not render the regulation invalid; suchabuse of power is by no means beyond challenge." In the samecase Kulatunga, J. at p. 378 (Ramanathan, J. agreeing) said:
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“I cannot agree that the possibility of abuse is a groundfor declaring [the regulation] ultra vires: the remedy againstabuse is judicial review.” The observations of the EuropeanCourt of Human Rights in Klass and Others v. FederalRepublic of Germany (108) at p. 237, are also worth recalling:“While the possibility of improper action by a dishonest,negligent or overzealous official can never be ruled out,whatever the system, the considerations that matter for theCourt’s present review are the likelihood of such action andthe safeguards provided to protect against it.”
If it turns out that the regulations are abused, wewould have a different kind of case than that presentlybefore us. All that is now here is the validity of the regulationsex-facie, not the review of particular actions of the CompetentAuthority, and I am unable to agree that in this posture oftilings the regulations can be said to be unconstitutional.Shelton v. Tucker, (106) at (U. S.) p. 499 and (S. Ct.) p. 258.
Moreover, in matters of this nature, although thisCourt has the power to decide whether a regulationmade under section 5 of the Public Security Ordinance is"necessary", see Chcmna Pieris's case, (3) at pp. 140-141;Siriwardene v. Liyanage. (107) at p. 329: or ‘expedient’ inthe sense of being a timely measure, neither too early nor toolate, having regard to prevailing circumstances, yet “dueweight” ought to be given to “the opinion of the Presidentthat the regulation is necessary or expedient in the interestsof public security and order.” Per Sharvananda, C. J., inJoseph Perera’s case, (1) at pp. 216-217.
Although the Government in Brind's case, (19) did notcontend that the interference with the applicant’s rights
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was a prime element in the struggle against terrorism, theEuropean Commission of Human Rights found that it could beregarded as "one aspect of a very important area of domesticpolicy." Vide pp. C. D. 83-84. Having regard to the extensiveexperience of the executive and legislature on terroristmatters, and “bearing in mind the margin of appreciationpermitted to States," the limited extent of the interferencewith the applicant’s rights and the “importance of measuresto combat terrorism”, the Commission found that it couldnot be said that the interference with the applicant'sfreedom of expression was disproportionate to the aim soughtto be pursued. Vide p. C. D. 84. Similar views were expressedby the Commission in McLaughlin u. U. K.t (49) at p. C. D. 92.The margin of appreciation in assessing the pressingsocial need, and in choosing the means, and fixing theconditions for achieving the legitimate aim of protectingnational security is a wide one. Klass and Others v. FederalRepublic of Germany, (108) at p. 232; Lectnder u. Sweden. (60)atp. 453; The Observer and the Guardian u. U. K., (1 5) atp. 1 78.See also Yasapala v. Wickramasinghe, (115). In Visuualingam& Others v. Liyanage, (27) at p. 375, Soza, J. said: “It would bedifficult for anyone but the repository of power to form anopinion as to the occasion for its exercise. He is entrusted withthe maintenance of public security. He has a better “feel” of thecrisis with the intelligence services at his command thananyone else …”
The petitioner contended that “the imposing of censorshipin this manner has, in any event, been rendered an obsoleteexercise by the advent of the communication revolutionwith its laptop publishing facilities, satellite telephones,portable scanners and TV transmission equipment that
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transmit news at the speed of light.” I agree that if informationhas been already made public or had ceased to be confidential,it would be unnecessary to prevent disclosure. Weber v.Switzerland, (105) at p. 524; The Observer and the Guardianv. U. K., (15) paras 67-70; The Sunday Times v. U. K., (16) atpp. 243-244; Vereninging Weelcblad Bluf v. The Netherlands,(116) at p. 203. However, there was no evidence in theinstant case that information that had in fact been disclosedor ceased to be confidential was being suppressed bythe regulations. The possibility that prohibited informationmay be transmitted always exists; but that does notcarry with it the corollary that such information shouldnot, in the interests of national security, be classified asconfidential.
Having regal'd to all the circumstances, 1 am of theview that the restrictions imposed were not disproportionateto the legitimate aim of the regulation, namely, the furtheranceof the interests of national security within the meaningof Article 15(7) of the Constitution, and that a fair balancebetween competing interests has been struck. The restrictionscomplained of correspond to a countervailing socialneed sufficiently pressing to outweigh and overbear thepetitioner's, (and having regard to the societal value ofArticle 14(1 )(a), as well as the public’s) interest in freedomof speech and expression, within the meaning of theConstitution.
ORDERFor the reasons set out in my judgment, I declare thatthe petitioner’s fundamental rights guaranteed by Articles10, 12(1) and 14(1)(a) have not been violated, and dismiss thepetition.
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In all the circumstances, I make no order as to costs.WADUGODAPITIYA, J. I agree.
VEERASEKERA, J, – I agree.
Application dismissed.