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Freedom of expression and freedom to dissent

10 Jan 2022

  • Lawyers discuss the scope of one of democracy’s core principles
By Sumudu Chamara Freedom of expression is a topic that was discussed on many occasions in recent memory, and during the last few years, the people saw a number of arrests over the expression of opinions and statements about the extent of freedom of expression, and also plans to introduce new laws to curb hate speech and fake news. The most recent reason that led to a new discussion about the freedom of expression was the incident where President Gotabaya Rajapaksa was allegedly insulted by people in the Mirihana area.  Last month, it was alleged that the President was booed by the people who were in a queue in front of a milk store in the Mirihana area, and that consequently, the Police had allegedly instructed operators of the milk store to close down the store and/or take strict measures to control the crowd that gathered in front of the store.  Later, Police Media Spokesman Senior Superintendent of Police (SSP) Nihal Thalduwa in a statement said that those allegations were false, and that the President had instructed the Police to look into the reasons as to why people gather in long queues. Moreover, later, the media quoted Thalduwa as having said that it is against the law to publish and exchange statements that insult the President on media, and that the Police have the power to take legal action against such acts. Although SSP Thalduwa has subsequently claimed to the Human Rights Commission on Sri Lanka (HRCSL) that he was misquoted in this regard, the HRCSL is yet to make a pronouncement on the veracity of Thalduwa’s claims.  However, it should also be noted that it was reported that the United National Society for Self Employed Trade Organisations National Organiser Asha Dilrukshi Perera was interrogated by the Criminal Investigations Department (CID) for sharing a social media post about the said incident and that the data that was on her phone was copied regarding the same. According to her, the CID had stated that the post in question could threaten the President’s life. Perera said that she intends to file a complaint with the Human Rights Commission of Sri Lanka (HRCSL) regarding the manner she was treated. In a context where this spate of incidents has raised questions as to whether legal action can be taken against citizens for exercising the constitutionally guaranteed freedom of expression, and, if possible, on what grounds, legal experts discussed the matter during a webinar held last Sunday (9). The webinar, organised by Hashtag Generation, was joined by Attorneys-at-Law Ermiza Tegal and Thishya Weragoda.  Freedom of expression Speaking of the importance of freedom of expression, Tegal explained that the right to dissent also comes under that freedom, and that therefore, it should also be considered a protected freedom. She said: “It is the Constitution of the country that guarantees the freedom of expression, and the freedom of expression comes under the Fundamental Rights Chapter. All other laws come under the Constitution, and essentially, the Constitution is an agreement between the citizens and the rulers, and rulers are bound to work in accordance with the Constitution. The supreme law of the country recognises the freedom of expression, and essentially, the freedom of dissent comes under the freedom of expression.” Noting that freedom of dissent is extremely crucial for democracy, she added: “It is through this right that the citizens can tell rulers in the event a certain policy or a decision affects the former. A government or a ruler has a responsibility to listen to their citizens. At the same time, it is important to note that rulers too are human beings and that they too can make mistakes, and that every decision they make, may not necessarily be right. This freedom is crucial when it comes to communication between citizens and rulers, because it is on this freedom the public’s trust is built on and it is through this freedom that we tell rulers the way they should behave concerning citizens. Even casting a vote is a form of expression of opinion, and it is a notion that even the Supreme Court (SC) has recognised. When we use our franchise, what we essentially do is make a decision whether to give the existing Government another term, or to vote that Government out. Democracy depends on those two opinions.” Tegal explained that voting a Government out is not a dangerous opinion to express, and that an opinion can only be considered illegal if such a statement is tantamount to the commission of a certain harm or a crime recognised by the law. Shedding some light on the SC’s stance in this regard, she highlighted the verdict of the case of Wijeratne vs. Vijitha Perera, Sub Inspector of Police, Polonnaruwa, and Others (SC 379/93). In the verdict, Justice Fernando said: “The Constitution, and in particular Articles 10, 12, and 14, recognise the fundamental right of every Sri Lankan to be different, to think differently, and to have and to express different opinions – not merely a right to disagree privately in silence, but to communicate disagreement openly, by word, conduct, and action, by peaceful and lawful means. Dissent, or disagreement manifested by conduct or action, is a cornerstone of the Constitution. It is a right enjoyed by members who speak and vote as they wish in Parliament; by judges who must decide controversies according to their considered opinion; and by every citizen at election time when he/she casts his/her vote for the candidate of his/her choice. Democracy requires not merely that dissent be tolerated, but that it be encouraged, and this obligation of the Executive is expressly recognised by Article 4(d), which therefore requires that the Police not only refrain from suppressing lawful dissent, but also that they ‘respect, secure, and advance’ the right to dissent.” Speaking further, she stressed that even though there are various laws that can be used to impose restrictions to freedom of expression, all other laws should be looked at keeping in mind that the first law (Constitution) has guaranteed that right.  Limitations Meanwhile, speaking of limitations to freedom of expression, Weragoda said that even though the Constitution does not restrict the freedom of thought, it says that a person may not be able to express everything he/she thinks. Article 15(2), which comes under “restrictions on fundamental rights”, states: “The exercise and operation of the fundamental right declared and recognised by Article 14(1)(a) (the freedom of speech and expression including publication) shall be subject to such restrictions as may be prescribed by the law in the interests of racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation, or incitement to an offence.”  In addition, Article 15(7) states: “The exercise and operation of all the fundamental rights declared and recognised by Articles 12, 13(1), 13(2), and 14 shall be subject to such restrictions as may be prescribed by the law in the interests of national security, public order, and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society.” He referred to the verdict in the case of Fernando vs. The Sri Lanka Broadcasting Corporation (SLBC) and Others (SC 81/95), where Justice Fernando states: “Article 10 denies the Government the power to control men’s/women’s minds, while Article 14(1)(a) excludes the power to curb their tongues...in our Constitution, no restrictions are permitted in relation to the freedom of thought, while Article 15 permits some on the freedom of speech.” Speaking of the limitations and enforcement of the law with regard to freedom of expression, Weragoda cited several other cases where arrests and filing of cases had taken place over what he referred to as minor matters. He stressed that even though the Police have stated that making certain statements can attract legal action, especially in the case of various statements that allegedly criticised the Government’s Covid-19 management efforts, that is not legally authorised, as there are no laws to take such action.  He spoke about Section 120 of the Penal Code, which notes: “Whoever by words, either spoken or intended to be read, or by signs, or by visible representations, or otherwise, excites or attempts to excite feelings of disaffection to the President or to the Government of the Republic, or excites or attempts to excite hatred to or contempt of the administration of justice, or excites or attempts to excite the people of Sri Lanka to procure, otherwise than by lawful means, the alteration of any matter by law established, or attempts to raise discontent or disaffection amongst the people of Sri Lanka, or to promote feelings of ill will and hostility between different classes of such people, shall be punished with simple imprisonment for a term which may extend to two years.” Pointing out the explanation of the said section which reads “it is not an offence under this section by intending to show that the President or the Government of the Republic have been misled or mistaken in measures, or to point out errors or defects in the Government or any part of it, or in the administration of justice”, he noted that this legal provision refers to a situation of insurgency or an unlawful attempt to overthrow a government, and that therefore, legal action cannot be taken against a mere expression of dissatisfaction or distrust or criticism against a government.  Another verdict Weragoda highlighted was the verdict of the case U.N.S.P. Kurukulasuriya and Another vs. The SLBC and Others (SC FR 556/2008 and SC FR 557/2008), where President’s Counsel and Justice Aluwihare cited a dictum of Justice Robert H. Jackson in the 1943 US SC case of West Virginia State Board of Education vs. Walter Barnette, which reads: “Those who begin the 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 (which protects the freedom of expression, among other freedoms, in the US) was designed to avoid these ends by avoiding these beginnings.” A person has a right to say what they want even if we do not like it, as long as it is not illegal, Weragoda opined, adding that booing is not illegal, and that it is merely a way of expressing displeasure. He also emphasised that it cannot be a ground for arrest. Responding to a question about the limitations to freedom of expression of public sector employees, Weragoda said that a code of conduct of a public institution is a set of regulations, and that it has a legal value. According to Article 16 which says in 16(1) that all existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of the Fundamental Rights Chapter in the Constitution, he noted that all provisions of institutional codes of conduct apply to public sector employees. He added: “We must however understand that these restrictions (included in code of conduct) came into effect at a time when the freedom of expression was not as widely discussed as now, and the main intention of introducing them was to prevent insubordination. These restrictions are often criticised as it hinders whistleblowers from coming forward and irregularities in the public sector from being revealed. These restrictions also restrict public sector employees from engaging in politics, which is an acceptable objective, as it prevents them from refraining from implementing government policies due to political needs.” Law and society Speaking of the role of freedom of expression in society, Tegal said that even though criticism against politics or governments have always been there, due to the increased use of social media platforms, those opinions are now more visible. “Without a society, there is no reputation or popularity, and if a person claims to be engaged in public service, the public have a right to remark on his/her good and bad qualities,” she opined, pointing out several cases that upheld the people’s right to raise their voice. She referred to the 1994 verdict of Channa Pieris and Others vs. The Attorney General (AG) and Others (the Ratawesi Peramuna case), where Justice Amerasinghe reads: “No person or group of persons, not even majorities, can claim to have a monopoly of good ideas. Many a strange and singular idea has in time, through argument and debate, had the power to get itself accepted as the truth.” Furthermore, Tegal mentioned the verdict of Joseph Perera alias Bruten Perera V. The AG and Others, where Chief Justice Sharvananda states: “The free discussion of governmental affairs is basic to our constitutional system. Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association, the people are the sovereign, not those who sit in the seats of power. It is the voice of the people which ultimately prevails. Free political discussion is thus necessary to the end that the Government may be responsive to the will of the people and changes may be obtained by peaceful means. The constitutional protection for speech and expression was fashioned to bring about political and social changes desired by the people.” With regard to arrests made for expressing different opinions, Weragoda noted that the International Covenant on Civil and Political Rights (ICCPR) exists not to restrict or cover the general freedom of expression, but to act against discriminatory freedom of expression.  He added: “This is however used by the Police because it is difficult to get bail when charged under the ICCPR Act and the arrestee may have to spend months in detention without bail.” He also expressed disapproval of the arbitrary statements made by the Police following the alleged incident of booing the President, and stressed that the Police have acted outside their power. He also opined that it is the said act of the Police that triggered a discourse on booing, and that the people expressed their frustration through that discourse. “Although the Police claims so (that they can take legal action for booing), it is not possible,” he said, adding that even if cases were filed, it takes years for cases to finish, and that judges sometimes reject hearing such cases. Regarding legal action, Tegal stated that seeking redress when cases have been filed against a person over allegations pertaining to the exercise of freedom of expression depends on several factors, including the law under which such cases have been filed. She noted that if cases are filed under the ICCPR Act, it may take time to seek bail from a High Court since a Magistrate’s Court cannot grant bail, and if cases are filed under the Prevention of Terrorism (Temporary Provisions) Act, it may be further difficult to get bail. If cases are filed under the general law, she said, there is a possibility of getting bail after pointing out freedom of expression before the court. She added: “There are so many things we can do about this. We can talk with the rulers and popularise the idea that arresting people in this manner is wrong. At the same time, the Police must change, and work in a way that protects the people’s constitutionally guaranteed rights. We have seen many incidents of the violation of such rights, and we are of the opinion that the Police’s conduct must change. This change, however, has to come from the top (of the police hierarchy), and it has to change at the policy level. Even courts have a responsibility to prevent violations of constitutionally guaranteed rights, and expedite the hearing of cases. Also, we should include in the Constitution the rights that have not yet been included.” In response to a question about how a society must challenge unlawful legal action that violates freedom of expression, Weragoda said that people should start and engage in discussions about these matters on social media platforms, as it is one of the easiest ways of expressing opinions.  He also noted that the Police cannot check a person’s phone without a search warrant, unless there is a reasonable suspicion that a person may attempt to destroy evidence related to a crime. He stressed that a person has a right to refuse to give or unlock his/her phone if the Police do not have a warrant, or ask to be produced before a court in order to get an order from the court regarding giving his/her phone.  “The Police cannot arrest a person and then try to find out whether that person has committed an offence. It is based on the suspicion of the commission of a crime that a person can be arrested,” he said, adding that the Police’s powers to check a person’s phone are very limited.  According to legal experts, legal action cannot be taken against a person merely because what they say offends another or is against a popular opinion. To take legal action, there should be legally defined grounds. Moreover, even the SC has identified freedom of dissent. Dissent, in fact, is part of freedom of expression. However, as was stated during the discussion, the people too have a role in protecting themselves against unlawful arrests and detentions. As a start, they can learn more about their rights and not hesitate to seek legal assistance whenever necessary.


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