v.EDMUND JAYASINGHE, SECRETARY, MINISTRY OF MEDIA,TOURISM AND AVIATION
SUPREME COURTG. P. S. DE SILVA, C.J.
OCTOBER 30, 1995.
Fundamental Rights – Articles 12(1), 12(2), 14(1)(a), 15(7) and 126(2) of theConstitution – Emergency (Restriction of Public and Transmission of SensitiveMilitary Information) Regulations No. 1 of 1995. – Public Security Ordinance (Cap40) Section 5 – Pre-censorship.
The petitioner stated that in view of certain regulations made by the Presidentunder Section 5 of the Public Security Ordinance, he has been compelled tocease publication of news items, inter alia, relating to the conduct of militaryoperations and related matters pertaining thereto in the “Janajaya” newspaper ofwhich he is the Chief Editor and Publisher.
Section 5(1) of the Public Security Ordinance empowers the President tomake regulations “as appear to him to be necessary or expedient”. Thepower is thus very wide; and so long as the regulations are within the ambitof the section, the court will not strike down the regulations, unless there aregood reasons for doing so.
The fact that some newspapers or other media are said to have beenpermitted to exercise self regulations would not per se constitutediscrimination. The Competent Authority has not (and cannot) abdicate hispower to act under the regulations even against such media, if it becomesnecessary to do so.
In the case of the petitioner, it would appear that he is uncompromising andwishes to publish news of his choice relating to military operations, withoutcensorship under the impugned regulations which he alleges are unguidedand violative of his fundamental rights.
The impugned censorship has been imposed at a time of national crisis andin the context of an on going civil war. Its validity has to be consideredhaving regard to the reality of the current situation.
The. Court will no doubt consider whether the regulations are bad for over-breadth and impringe upon fundamental rights. In an appropriate case, thecourt mpy also hold that there has been an infringement of rights underArticles 12(1) and 12(2) in the implementation of regulations.
Cases referred to:
Hettiarachchi v. Seneviratne etalS.C. App 127/94 S.C.M. 4.7.1994.
Joseph Perera v. The Attorney General  1 Sri L.R. 199.
New York Times v. US  403 US 713.
Banton Books v. Sullivan (372 US 58-70).
Organisation for a Better Austin v. Kiefe (1971) 402 US 415.
The Zamora  AC 77.
APPLICATION for infringement of fundamental rights.
L. C. Seneviratne, P.C. with Nigel Hatch for the petitioner.
November 7, 1995.
The petitioner states that he is the Chief Editor and Publisher of aweekly Sinhala Newspaper “Janajaya” registered under theNewspapers Ordinance. He states that he had been a Member ofParliament from 1984 – 1994 and a Cabinet Minister. He complainsthat his rights (qua Editor and Publisher of the said newspaper)guaranteed by Articles 12(1), 12(2) and 14(1) (a) of the Constitutionhave been infringed by executive or administrative action by theapplication of Emergency (Restriction of Publication andTransmission of Sensitive Military Information) Regulations No. 1 of1995 published in Gazette (Extraordinary) No. 889/16 dated 21.09.95as amended by a notification published in Gazette (Extraordinary)No. 891/3 dated 02.10.95.
The said regulations made by the President under S. 5 of thePublic Security Ordinance (Cap. 40) prohibit inter alia, the Editor orPublisher of a Newspaper, whether in or outside Sri Lanka, to publish,
distributeor cause to be' so done any material containing any
matter which pertains to any –
operations carried out, or proposed to be carried out by theArmed Forces or the Police Force (including the Special TaskForce);
procurement of proposed procurement of arms or supplies byany such Forces;
deployment of troops or personnel, or the deployment or use ofequipment, including aircraft or naval vessels, by any suchForces;
any statement pertaining to the official conduct or theperformance of the Head or any member of any of the ArmedForces or the Police Force.
The petitioner complains that by virtue of the said regulations, theState has imposed a “blanket censorship”; that the said regulationsare unwarranted as they stifle legitimate criticism of Governmentpolicy in relation to military operations; hence the regulations are ultravires and infringe his rights under Article 14(1) (a). Further, the 1strespondent who is the Competent Authority appointed under theregulations is reported to have relaxed the application of theprohibitions prescribed by the regulations in respect of the Statecontrolled newspapers, the electronic media and foreign media, bypermitting them to exercise self regulation censorship, withoutreference to the Competent Authority. The petitioner complains thatsuch favoured treatment to a part of the media infringes his rightsunder Articles 12(1) and 12(2).
The petitioner states that in view of the said regulations, he hasbeen compelled to cease publication of news items inter alia, relatingto the conduct of military operations and related matters pertainingthereto in the “Janajaya" newspaper.
The petitioner has produced marked P2A – P2E copies of certainnews items published in the “Janajaya” prior to the imposition ofcensorship. Some of the criticisms levelled against the governmentin the said news items are as follows:
The Army Commander is not ready for war and the DeputyMinister of Defence has no knowledge of war measures.
The Army Commander’s period of service has been extended forextraneous reasons.
Major General Daluwatte who i§. in charge of the Eastern Provinceis an officer having a poor record of service. He is a timid officerwho would order his men to surrender to the enemy.
The Navy Commander should resign; The Army Commandershould be retired; Algama or Seneviratne should be appointed asArmy Commander.
Rohan Daluwatte should not be given any responsibilities.
The ability of the Forces both as regards attack and counterattack is unsatisfactory. There is no co-ordination among theForces. Consequently, the LTTE was able to launch a successfulattack on the Government Forces at Mandativu.
The LTTE bomb attacks in Colombo have been planned inWellawatte. But the Wellawatte Police is inactive; in factaccording to some reports, officers attached to that Police Stationare in collusion with the “tigers".
The above news items indicate the kind of criticism the petitionerdesires to engage in through the newspaper media and which heconsiders to be in the public interest in the prosecution of the presentwar. It is also clear from his petition that he is not prepared to subjecthimself to the censorship imposed by the impugned regulations.
Admittedly, several newspapers some of which appear to becritical of the Government are presently publishing news relating tomilitary operations in the North, subject to censorship.
S. 5(1) of the Public Security Ordinance empowers the President tomake emergency regulations as appear to him to be necessary orexpedient in the interest of public security and the preservation ofpublic order and the suppression of mutiny, riot or civil commotionetc. This power i^ couched in subjective language. The sectionempowers the President to make regulations "as appear to him to benecessary to expedient”. The power is thus very wide; and so long asthe regulations are within the ambit of the section, the Court will notstrike down the regulations, unless there are good grounds for doingso.
The Court will no doubt consider whether the regulations are badfor over-breadth and impinge upon fundamental rights. In anappropriate case, the Court may also hold that there has been aninfringement of rights under Articles 12(1) and 12(2) in theimplementation of regulations. If any regulation is inherentlydiscriminatory, any person affected by such a regulation may petitionthis Court for relief under Article 126 on the ground that the regulationis violative of rights under Article 12(1), in which event relief can begranted in limine, even before it is implemented.
The question before this Court is whether on the material placedbefore it, the petitioner has made out a prima facie case for the grantof leave to proceed. Article 126(2) provides inter alia, that anapplication for relief may be proceeded with only with leave toproceed first had and obtained from the Supreme Court, which leavemay be granted or refused as the case may be. In Hettiarachchi v.Seneviratne et alm this Court observed:
“It must not be supposed, or suggested, that the need to obtainleave to proceed under Article 126(2) is a mere formality. Theonus is on the petitioner seeking relief to establish a prima faciecase. Even if an important question of law, or jurisdiction, doesappear to be involved, it must not be assumed, as some do,that this must necessarily be deferred for consideration at thefinal hearing. If it is relevant as a threshold consideration, thatthreshold must be crossed by obtaining leave to proceed,before seeking to proceed further”.
It may appear that the Regulation 3 imposes an almost absoluteprohibition on the publication of matters relating to militaryoperations. There is also a power vested in the Competent Authority
to stop the publication of a newspaper which contravenes theregulations; contravention of the regulations is also an offence.However, the exercise of the power of the Competent Authority isdiscretionary and not automatic. He may exercise the power only“after issuing such directions as he considers necessary to effectcompliance with the regulations”. Apparently such directions are. given whenever the Competent Authority subjects any news report tocensorship. The resulting position is that there is no total bar againstpublication of matters relating to military operations.
However, the petitioner has on his own ceased to publish anynews relating to military operations. He has not been stopped frompublishing his newspaper; nor has he been prosecuted for anyoffence. Some of the matters he desires to discuss in the media mayappropriately be raised elsewhere e.g., the Parliament, the SecurityCouncil or within the Establishment – whether by the memberscomposing such bodies or on the basis of representations receivedfrom citizens. But, I cannot agree that in a war situation of thedimensions which is presently raging, the petitioner can claim thefreedom to publish all such news items as appear in P2A – P2E,without restriction.
The fact that some newspapers or other media are said to havebeen permitted exercise self regulation would not per se constitutediscrimination. The Competent Authority has not (and cannot)abdicate his power to act under the regulations even against suchmedia, if it becomes necessary to do so. In the case of the petitioner,it would appear that he is uncompromising and wishes to publishnews of his choice relating to military operations, without censorshipunder the impugned regulations which he alleges are unguided andviolative of his fundamental rights.
Article 15(7) of the Constitution permits restrictions on rights interalia, under Articles 12 and 14, as may be prescribed by “Law" (whichexpression includes regulations made under the Public SecurityOrdinance) in the interest of national security, public order etc.Learned President’s Counsel for the petitioner rightly submitted thatany such restrictions imposed by emergency regulations may bereviewed by Court. In support, he cited Joseph Perera v. The
Attorney-General(z) where it was held that it is competent for theCourt to question the necessity of the emergency regulation andwhether there is a proximate or rational nexus between the restrictionimposed on a citizens’ fundamental rights by emergency regulationand the object sought to be achieved by the regulation. On the basisof the same decision, Counsel also submitted that the impugnedregulations do not provide adequate guidelines for the exercise of thepowers of the Competent Authority; that the guidelines, if any, arevague; hence the regulations are inherently violative of rights underArticle 12(1).
In Joseph Perera’s case (Supra) the Court had to consider thevalidity of the arrest and detention of the petitioner for publishing aleaflet issued by the “Revolutionary Communist League”, a PoliticalParty of which the petitioner was a member. It was alleged that thesaid leaflet which was issued on the occasion of a proposed meetingand a lecture on the rights of students brought the Government intohatred and ridicule and constituted “subversive literature” in breachof Emergency Regulations 26 and 33, respectively. It was alsoalleged that the distribution of the said leaflet violated EmergencyRegulation 28 (1) which prohibited the publication inter alia, of anyleaflet without the permission of the Inspector General of Police.Wanasundera, J. said (p.235) –
“The Petitioners were in possession of literature, which on acursory glance could have appeared to be subversive.Document XI appeared to contain if not seditious statements atleast statements that can be regarded as tendentious".
Accordingly, the Court held that there was no illegal arrest. But, ona closer scrutiny of the leaflet, it could not be said to justify a chargeunder Regulation 26 or be described as “subversive literature" underRegulation 33; hence the prolonged detention of the petitioner wasillegal.
As regards the prohibition in Regulation 28(1), the Court held thatthe regulation was invalid for lack of objective guidelines,Sharvanada, C. J. said (p.229) –
“Pre-censorship is under our law not necessarilyunconstitutional and can be justified if brought within the ambitof Article 15. However, any system of pre-censorship whichconfers unguided and unfettered discretion upon executiveauthority without narrow objective and definite standards toguide the official is unconstitutional".
Counsel for the petitioner also relies on the following passages inthe judgment at p. 229 –
The general rule is that any form of previous restraint isregarded on the face of it as an abridgement of the freedom ofexpression and offends Article 14(1) (a) of the Constitution.
It was said in New York Times v. US<3) that any system of priorrestraints of expression comes to this Court, bearing a heavypresumption against its constitutional validity. Banton Books v.SullivanP The Government thus carries a heavy burden ofshowing justification for the enforcement of such restraint.Organisation for a Better Austin v. KiefeP.
On the basis of these authorities, Counsel submits that thepetitioner has made out a prima facie case for the grant of leave toproceed.
Of the decisions cited by Sharvananda, C. J., only one case i.e.,New York Times case involved a restraint on newspapers against apublication which appears to relate to a war situation. TheGovernment sought to enjoin newspapers from publishing contentsof classified study on the “History of U.S. Decision – making Processon the Vietnam Policy”. It was held that the Government failed tomeet its burden of showing justification for imposition of the restraint.That case is clearly distinguishable for the reason that the policyunder discussion there was the involvement of the United States ofAmerica in the affairs of a foreign State.
In the instant case, it cannot be said that the occasion and themanner of pre-censorship is arbitrary. The Government is faced witha serious civil war. The matters in respect of which censorship isimposed are specified. The restriction is against the publication ofmatters which could be classified as “sensitive information”. All suchmatters relate to the prosecution of the war. Hence, the impugnedcensorship cannot be described as a “blanket censorship"; clearerguidelines may not be demanded in the present circumstances. Inthis connection, a reference may be made to the decision of the PrivyCouncil in The Zamora(6> even though the dicta appearing thereinmay require modification in the light of constitutional provisions whichsecure fundamental rights and freedoms of the citizen. The PrivyCouncil observed thus (p. 107):
“Those who are responsible for national security must be thesole judges of what the national security requires. It would beobviously undesirable that such matters should be made theobject of evidence in a Court of law or otherwise discussed inpublic"
“The Zamora was decided during the first world war, in relation toacts of the Crown, in defence of the realm. I have referred to it notbecause it is exactly in point nor because I have formed any opinionthat such dicta can be applied in our legal system, withoutqualification but because it is of some assistance in viewing the casebefore us, in its correct perspective.
The impugned censorship has been imposed at a time of nationalcrisis and in the context of an ongoing civil war. Its validity has to beconsidered having regard to the reality of the current situation.Viewed from this stand point Joseph Perera’s case (Supra) is of noassistance. The facts of that case are significantly different. I am ofthe opinion that no prima facie case has been made out that theimpugned regulations are ultra vires or violative of the petitioner’sfundamental rights. Leave to proceed is accordingly refused.
G. P. S. DE SILVA, C.J. -1 agreeRAMANATHAN J. -1 agree
Leave to proceed refused.