Attitudes that shun media ethics and legal obligations appear to unfortunately influence the conduct of many Sri Lankan media institutions, be they State-owned or private, the Supreme Court (SC) observed.    Media institutions, the SC noted, must curate their programmes to include all views and cater to all citizens equally, without manipulating the leverage they have over public opinion, adding that a skewed discussion focusing only on the positive aspects of a topic cannot be a successful discussion which can advance democratic values.    Media institutions should certainly be given discretion to curate their programmes, but such discretion must be exercised within the objectives and parameters set out in the law, the SC further noted.    The SC pointed out thus in the recent cases of U.N.S.P. Kurukulasuriya v. Sri Lanka Rupavahini Corporation (SLRC) and Others (SC/FR/556/2008) and J.K.W. Jayasekara v. SLRC and Others (SC/FR/557/2008), where the judgement was penned by President’s Counsel (PC) and Justice (J), Buwaneka Aluwihare and was joined by Priyantha Jayawardena PC J. and L.T.B. Dehideniya J.    In the aforementioned cases, amongst other aspects, the SC dealt with the issue of the infringement of Article 14(1)(a) of the Constitution on the freedom of speech and expression including publication.    The exercise of this fundamental right is as per Article 15(2) of the Constitution, subject to restrictions that may be prescribed by law in the interests of racial and religious harmony or in relation to Parliamentary privilege, contempt of court, defamation or incitement to an offence. Further, Article 15(7) of the Constitution stipulates that restrictions may be prescribed by 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 for meeting the just requirements of the general welfare of a democratic society.    The danger of suppressing dissent, Aluwihare PC J. noted, was emphasised in Gunawardena and Another v. Pathirana, Officer-In-Charge (OIC), Police Station, Elpitiya, and Others (S.C. Application 519/95). Stating that dissent, or disagreement manifested by conduct or action, is a cornerstone of the Constitution, which should not only be tolerated but encouraged by the Executive as obligated expressly by Article 4(d) of the Constitution as per which all organs of the Government should respect, secure and advance the fundamental rights declared and recognised by the Constitution, Mark Damien Hugh Fernando PC J. (joined by Asoka S. Wijetunga J. and Sivaramalingam Ananda Coomaraswamy J.) cited the dictum of Robert Houghwout Jackson J. in the United States SC case of West Virginia State Board of Education v. Barnette (joined in the majority by Chief Justice {CJ} Harlan Fiske Stone, Hugo Lafayette Black J., William O. Douglas J., William Francis/Frank Murphy J. and Wiley Blount Rutledge Junior. J.): “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 (Congress shall make no law abridging the freedom of speech, or of the press) was designed to avoid these ends by avoiding these beginnings.”    The SC also dealt with the issue of making a political speech.    According to Aluwihare PC J., the judgements of the SC constitute a body of jurisprudence that has evolved over the years in recognising 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 (Wijeratne v. Vijitha Perera, Sub-Inspector of Police, Polonnaruwa and Others and Dissanayake v. University of Sri Jayewardenepura and Others and Sunila Abeysekera v. Ariya Rubasinghe, Competent Authority and Others, and Peiris v. Attorney General {AG}).    In Deshapriya and Another v. Municipal Council, Nuwara Eliya, and Others, Fernando PC J. (joined by Ranjith N.M. Dheeraratne J. and S.W.B. Wadugodapitiya PC J.) held that, “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.” while in Amaratunga v. Sirimal and Others (the Jana Ghosha case), Fernando J. (joined by Dheeraratne J. and Pathmanathan Ramanathan J.) held that, “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).”  Aluwihare PC J. explained: "All political speeches should not be shunned and censored. A speech that promotes or pays excessive homage to a particular political party or politician in a partial and an imbalanced manner may be distasteful to a section of the society. The need to observe ethical and responsible conduct should not however provide an excuse for censoring the opinions of another. The nature of the expression being political is certainly not a criterion recognised in the Constitution to limit the freedom of expression. An expression that is well within the parameters of the law as set out in Article 15, does not lose its legitimacy for being political or for being unpalatable to those who listen to it. If every speech which points out the shortcomings of an incumbent Government or politicians were to be interpreted as being a political speech and censored, no legitimate criticism which could promote better governance would ever be made”.    In Fernando v. The Sri Lanka Broadcasting Corporation and Others, Fernando J. (joined by Dheeraratne J. and Wijetunga J.) held that “…the media asserts, and does not hesitate to exercise, the right to criticise public institutions and persons holding public office; while, of course, such criticism must be deplored when it is without justification, the right to make and publish legitimate criticism is too deeply ingrained to be denied.”  The media is not restrained from publicising or broadcasting criticism provided that such criticism is legitimate, and the objective of the criticism is not for one to obtain an undue advantage to the disadvantage of another, Aluwihare PC J. explained.    The European Court of Human Rights (ECHR) in Lingens v. Austria stated that while the press should respect the entitlement to the protection of reputation which extends to all persons, the limits of acceptable criticism were wider regarding politicians in order to allow the freedom of political debate necessary in a democratic society and to afford “the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders.” In Ceylan v. Turkey, the ECHR held that “the limits of permissible criticism are wider with regard to the Government than in relation to a private citizen or even a politician”.    The permissible grounds for restricting criticism of the Government were emphasised in Joseph Perera v. AG and Others, where Suppiah Sharvananda CJ held: “…criticism of the Government, however unpalatable it be, cannot be restricted or penalised unless it is intended or has a tendency to undermine the security of the State or public order or to incite the commission of an offence. Debate on public issues should be uninhibited, robust and wide open and that may well include vehement, caustic and sometimes unpleasantly sharp attacks on the Government. Such debate is not calculated and does not bring the Government into hatred and contempt.”    In Mallawarachchi v. Seneviratne, OIC, Police Station, Kollupitiya, and Others, K.M.M.B. Kulatunga J. (joined by Fernando J. and Dheeraratne J.) “A true statement, made in the public interest or in the protection of a lawful interest, would be clearly in the exercise of the freedom of speech although ex facie (on the face of it) defamatory. Such statements may be made by way of criticism of those holding or seeking public office, particularly where relevant to such office.”    Therefore, truth, Aluwihare PC J. noted, is a defence for defamation and even if the statement in question was defamatory, and that therefore, unless the falsity of the statement is proven or at the very least contested, the SC cannot presumptively bar a citizen from exercising his rights, on the ground of defamation.