Arresting Chamila Jayasinghe, a Public Administration Officer, by the CID and the issuance of a letter restricting the Secretary to the Ministry of Health from expressing his views has ignited new debates of Freedom of speech and expression. Focus on the issue came with the arrest of more than 17 people during Covid-19 first wave for expressing their views on social media.
Today, expression is continued to be criminalized using various laws. The Charter on Civil and Political Rights is used to infringe on the rights of the majority and to protect the rights of the minority. Shakthika Sathkumara, who was arrested for writing a short story, was charged under this Act. Article 120 of the Penal Code is also being abused to fulfill their propaganda.
It relates to ‘trying to change the government in an illegal way, by inciting or attempting to incite anti-Sri Lankan sentiments with words or gestures that are meant to be spoken or read, or to incite hatred or disrespect to law enforcement.’
Article 14 (1) (a)
Like the ICCPR Act, this too can be altered to suit their will. In such a situation, it is worth knowing how freedom of speech and expression is guaranteed. Article 14 (1) (a) of the Constitution of Sri Lanka states: Every citizen has the right to freedom of speech and expression. It is a constitutional right of citizens.
However, Article 15 of the Constitution provides for the possibility of restricting the fundamental rights conferred by the Constitution. Article 15 (2) states that freedom of speech and expression may be enjoyed or exercised subject to restrictions imposed by law on religious privileges, parliamentary privileges, contempt of court, contempt or incitement.
Also, the right to freedom of speech and expression in Article 15 (7) can only be exercised in order to ensure national security and the well-being of the country, to protect public health or morals, and to ensure that the rights and freedoms of others are properly recognized and respected. And subject to the limitations imposed by law in order to meet the legitimate requirements for the general welfare of a democratic society.
The Supreme Court of Sri Lanka has given a number of rulings recognizing freedom of speech and expression as a fundamental right. The Supreme Court did not isolate Article 14 (1) (a) of the Constitution in its judgment. The right enshrined in that Constitution shall be deemed to be in accordance with the provisions of Articles 15 (2) and 15 (7). Several Supreme Court rulings on freedom of speech and expression have stated the following:
Wanigasooriya vs. Peiris (SC / FR / 199/87)
The ruling states that the sharing of knowledge also falls into the category of freedom of speech.
Wijeratne vs. Perera (SC / FR / 379/93)
The ruling also states that criticizing the actions of the state is also acceptable under freedom of speech.
Judge Mark Fernando stated in the judgment, ‘Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. It seems trite but necessary to say that the first amendment was designed to avoid these ends by avoiding these ends by avoiding these beginnings.’
Deshapriya v. Mayor, Nuwara Eliya Municipal Council (1995 (1) SLR / 362)
The judgment of the Supreme Court in this case states, ‘In the event of a violation of Article 14 (1) (a) by an executive or administrative action, it may occur in a variety of ways, directly or indirectly. Not publishing criticisms of the government in state-run newspapers is a violation of Article 12 of the Constitution on the grounds of political opinion, and forcibly or otherwise suppressing or otherwise suppressing a non-governmental newspaper (justice) is a violation of fundamental rights. It belongs to the second category mentioned earlier and is a more serious offense.’
The mayor of Nuwara Eliya distributed 450 newspapers, Sunanda Deshapriya, author of ‘Yukthiya’ newspaper had filed the case alleging that his rights had been violated by the theft of 450 newspapers before distribution by the Mayr and the Supreme Court had ordered the mayor to pay Rs. 100000 to the victim.
Amaratunga v. Sirimal and others. (1993 (1) SLR / 264) (‘Janaghosha’ case)
Several parties, including the Sri Lanka Freedom Party, decided to protest against the then UNP government by making various noises all over the country for 15 minutes. The petitioner in the case was beating a drum in Ingiriya when he was protesting and was beaten by the police for disobeying the order to stop it and the drum was also destroyed by the police. He was later arrested by police.
In the case filed against this whole process, the Supreme Court ruled that such an expression would also fall under fundamental rights and ordered to pay Rs. 100,000 to the petitioner as compensation. The ruling also stated that the slogan against the government was not a violation of the law and was not an offense under the Police Ordinance. The Supreme Court further stated in this regard regarding speech and expression,
‘The right to support or to criticize the governments and political parties, policies and programmes is fundamental to the democratic way of life, and the freedom of speech and expression is one which cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all political and civil institutions.’
Protecting the right of expressing freely
In light of these facts, it is important to understand that as citizens we have a right and a responsibility to protect and uphold it. That is, if we allow our rights to be quietly suppressed, it is inevitable that they will continue to be crushed with even more force. In the language of social media, freedom of speech and expression is not a ‘quivering conscience’. It is something that continues to thrive on this earth.