BASL apprehensive over police deciding on what is ‘fake news’
In a statement released by the Bar Association of Sri Lanka (BASL) today (11), the Association expressed its apprehension with regard to the police and other members of the executive being allowed to decide on what falls into the category of ‘fake news’, based on their own their own subjective decisions, resulting in the arrest and detention of persons.
While stating that the BASL has no objection to the enforcement of laws relating to hate speech and incitement to violence, it expressed the importance of ensuring that authorities do not use such laws to stifle genuine expressions of dissent and criticism.
This statement comes after the recent media release from Sri Lanka Police titled “circulation of fake news, photographs, videos causing disunity, hate and obstructing the Covid-19 programme”.
The BASL notes that the said circular contains a warning that the Criminal Investigation Department (CID) and the Computer Crimes Division of the Sri Lanka Police will be conducting investigations by monitoring the internet for violators, in order to enforce the law. The circular further warns the public to refrain from spreading fake news and aiding or abetting the same.
“The BASL is deeply concerned that the provisions of the laws mentioned in the circular, could be misused by police officers in order to stifle the freedom of speech and expression which is a fundamental right enshrined in the Constitution. At a time where the country remains under travel restrictions as a result of the Covid-19 pandemic, it is essential that the freedom of speech and expression of the people and their right to dissent and disagree are protected,” it stated.
Further, the BASL cited a recent case of U. N. S. P. Kurukylasuriya, Convener, Free Media Movement, and J. K. W. Jayasekara, V Rupavahini Corporation SCFR 556/2008 and 557/2008 decided on 17.02.2021, in which His Lordship Justice Aluwihare with two other Judges of the Supreme Court agreed on the following:
“The Judgements of the Supreme Court constitute a body of jurisprudence that has evolved over the years, and the Supreme Court has recognised that the right to comment on public issues and criticise public officials and public institutions is essential for the exercise of civil and political freedoms so valued by democratic society,”
The BASL also noted that the court quoted with approval the following passages found in several decisions of Sri Lankan courts:
“The right to support or to criticise governments and political parties, policies and programmes is fundamental to the democratic way of life; …and democracy requires not merely that dissent be tolerated, but that it be encouraged.”
“Criticism of the government, and of political parties and policies is per se, a permissible exercise of the freedom of speech and expression under Article 14 (1) (a),”
Given that the prospect of being arrested for expressing harsh criticism or dissent can have a chilling effect that could erode the citizens’ freedom to openly share critical views or freely comment on important matters as members/stakeholders of society, the BASL states that utmost care and restraint should be exercised in causing the arrest of any person for an offence relating to alleged ‘fake news’ prior to full investigation of any complaint.
Additionally, the BASL says it would be consistent with due respect for democratic values and freedoms, for any decision to arrest without a warrant to be resorted to keeping in mind the spirit of preserving fundamental freedoms and the need to avoid suppressing or oppressing the right to free expression of views.
“In our view this would be better achieved, if any decision to arrest or charge any person is taken only after careful due consideration and professional assessment that there is a real and reasonable prospect of an alleged offence in law being committed, with advice from the Attorney General as may be warranted in the relevant context,” it stated.
The BASL mentioned that these concerns have been brought to the attention of the Inspector General of Police in a letter yesterday (10), and stated that it will continue to monitor any violation of the Fundamental Rights and the Rule of Law in respect thereof and will make further legal interventions where necessary.