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Political speech not a ground on which freedom of expression can be restricted, SC rules
View(s):The Supreme Court held this Wednesday that ‘political speech’ was not a ground on which the right to freedom of speech and expression could be constitutionally fettered and further, that the sub judice principle, part of the contempt of court regime, does not operate to prohibit speech that, ‘could hardly influence public opinion and have a material impact on the outcome of the case’,
This was in the context of the Court ruling in two fundamental rights challenges left pending before the Supreme Court for over thirteen years, that the fundamental rights to freedom of expression and equality of a journalist had been violated as a result of his being suddenly stopped from participating as a panelist in the “Ira Anduru Pata’ programme of Sri Lanka Rupavahini. The Court also held that the freedom of thought and the right to equality of a viewer of that same programme had been infringed as a result.
Uvindu Kurukulasuriya (journalist) and J. K. W. Jayasekara (viewer) had petitioned the Court in 2008 following the sudden and arbitrary stopping of the television programme citing the Sri Lanka Rupavahini Corporation (first respondent), SLRC Chairman and Director General Dr. Ariyratne Ethugala (second respondent), Lakshman Muthuthantri, Programme Producer, (third respondent) Minister of Mass Media and Information Anura Priyadarshana Yapa (fourth respondent).
Later, with successive changes in government, (then) Chairperson Enokaa Sathyangani and Director General Thusira Malawwethantri, then Mass Media Information Minister Mangala Samaraweera along with incumbent Chairman & Director-General Sarath Kongahage and Minister of Mass Media and Information Keheliya Rambukwella were also added as respondents.
The Supreme Court heard the two cases together with the consent of the petitioners. The relevant programme had featured petitioner Kurukulasuriya along with two other panelists, Dhamma Dissanayake and Charitha Herath. However, the programe had not been allowed to run to its end but abruptly came to a halt with advertisements and songs being telecast instead. The reason for halting of the programme, the respondents argued, was because the petitioner made ‘a political speech’ alleging that the media was exercising self-restraint, referring to a court case pending against a journalist under the Prevention of Terrorism Act (PTA). They also stated that the petitioner had filed a fundamental rights challenge to regulations applicable to private television stations and that, as such, he could not refer to matters that were pending before a court.
This was disputed by the petititioner who said that, purely because a matter was pending in court, that should not stop the discussion of matters of public importance.
In the Court’s decision, Buveneka Aluvihare J (with Priyantha Jayawardene and LTB Degideniya JJ agreeing), observed that, the petitioner had ‘criticised the then incumbent President, a person holding public office, at a forum telecasted by the Rupavahini Channel. In my view the Petitioner, in the exercise of freedom of speech and expression, was making a legitimate criticism of a public figure. The Petitioner did not denigrate the President in harsh words or resort to malicious comments about the President. I am of the view, that his criticism of the President was neither character assassination nor defamatory.”
Referring to several previous decisions on similar lines, the Court said that, ‘Accordingly, I cannot agree with the Respondents’ contention that a speech should be censored purely for being political. I do not think that all political speeches should be shunned and censored…. The Constitution of Sri Lanka only curtails free speech to maintain racial and religious harmony, parliamentary privilege, to avoid contempt of court and defamation or to avoid incitement to an Offence. The nature of the expression being political is certainly not a criterion recognized in the Constitution to limit freedom of expression.”
Further, the Court stated that, ‘reference to any alleged persecution of journalists or censorship can hardly be called irrelevant to the topic since it has a direct bearing on media freedom…’. going on to warn that, ‘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.”
Regarding the objection of the respondents based on contempt of court or the sub judice principle, the Court pointed out that petitioner Kurukulasuriya ‘did not speak of anything that would materially interfere with the judicial proceedings in the particular criminal case or, criticize the court. He merely alluded to the factual situation regarding the detention of the said journalist.’
It was further stated that the petitioner had pointed to the journalist being detained for writing two articles, to highlight that the regime was abusing provisions of the Prevention of Terrorism Act. ‘That statement could hardly influence public opinion and have a material impact on the outcome of the case. Therefore, it would be an overreaction to say that the petitioner made a statement that would be held in contempt,’ thr Court said.
The State was directed to pay the two petitioners Rs.30,000 each and the 2nd respondent directed to pay each of the petitioners, Rs.50,000 as compensation.