Freedom of Speech, Jurisprudence of the Supreme Court and Challenges

Deshamanya R.K.W. Goonesekere Memorial Oration 2025

[Organised by the Department of Public and International Law of the Faculty of Law, University of Colombo in collaboration with the R.K.W. Goonesekere Endowment.] 6th February, 2025, BMICH, Colombo.

By  Justice Yasantha Kodagoda, PC Judge of the Supreme Court

• Honourable Prime Minister, Dr. Harini Amarasuriya
• Honourable Minister of Justice Mr. Harshana Nanayakkara,
• Justices of the Supreme Court and Court of Appeal,  President’s Counsel,  Professor Savitri Goonesekere, Vice Chancellor of the University of Colombo, Senior Professor H.D. Karunaratne, The Dean of the Faculty of Law, Professor Sampath Punchihewa, The Head, Department of Public and International Law, Professor Kokila Konasinghe, Distinguished Guests and Invitees, Heads of Departments and other academics of the Faculty of Law, Ladies & Gentlemen, and Dear Students,

It was a few weeks ago that Professor Savitri Goonesekere contacted me and informed me that a decision had been taken by the Deshamanya R.K.W. Goonesekere Endowment in consultation with the Faculty of Law of the University of Colombo to invite me to deliver this year’s Deshamanya R.K.W. Goonesekere Memorial Oration. She requested me to oblige, which invitation I readily accepted.

Having accepted the honour bestowed on me, I started to think of a suitable topic for the Oration. It did not take me long to provisionally identify a topic associated with a story, which I have been yearning for quite some time to tell in public to an audience learned in the law. It relates to the very last case which Mr. Goonesekere argued in the Supreme Court. When I queried from Mr. Goonesekere’s longtime junior and my friend President’s Counsel Mr. Crishantha Weliamuna presently living in Australia, he confirmed that the case referred to by me was in fact the last case which Mr. Goonesekere fully argued, and that after arguing that case, Mr. Goonesekere remained in active and regular practice only for a brief period. As I understand, his departure from regular practice had been for multiple reasons, which I have been told by those near and dear to him, included the dissatisfaction that had developed in his mind over the years regarding the manner in which administration of justice was being carried out by some during that era.

The story relating to this particular case and its outcome is special to me, particularly since, I had the distinct honour of having been pitted against Mr. Goonesekere in that last case, which he so valiantly argued. I assume he put in so much of effort into that case mostly due to the underlying cause he truly believed in. The impact of Mr. Goonesekere’s submissions were such, that during the argument, I had to question my own conscience regarding the stance I was required to take on behalf of the State. However, as I was privy to certain facts which could not be revealed publicly in Court, I was convinced that it was my professional duty to argue that case in the manner I did. I recall vividly how Professor Savitri Goonesekere and Mrs. Surya Wickremasinghe who flanked Mr. Goonesekere at the Bar table on either of his sides were visibly annoyed with me due to some of my utterances. That is of course besides the point.

While formulating the script of the memorial oration founded upon that particular case, I received a message from Professor Kokila Konasinghe. I was politely told that Professor Savitri Goonesekere who we all know is the beloved wife of late Mr. Goonesekere, would be pleased to listen to me speak on the fundamental right to free speech. Therefore, I decided to change the topic, and speak to you regarding freedom of speech, as I considered it as my duty to accede to the request of Professor Goonesekere, whom I respect most sincerely. That abruptly ended my plan to talk to you today regarding the last case which Mr. Goonesekere argued before the Supreme Court, that being the case of Nallaratnam Singarasa vs. The Attorney-General, belatedly reported in 2013 Volume I of Sri Lanka Law Reports at page 245.

My original decision to speak to you regarding that case, was not purely due to my desire to have myself vindicated from the slur that was cast on me by some who exercised their right to free speech regarding that case and its judgment, but since I felt that it was my duty to place before a learned audience of the public, certain important legal and factual aspects relating to that case and about Nallaratnam Singarasa himself, which are so far not in the public domain. Anyhow, that is for another day.

Before I delve into the topic assigned to me, I shall briefly though, refer to the life and career of the gentleman in whose memory we are gathered here this evening.

Rajendra Kalidas Wimala Goonesekere was born on 8th May 1928. After his primary and secondary education at Royal College Colombo, in 1950 he entered the University of Ceylon’s Department of Law newly established at that time in Peradeniya, and read for the Bachelor’s degree in Law. It is said that Mr. Goonesekere along with onetime Attorney-General who recently passed away - Mr. Shiva Pasupathi, PC, onetime Inspector General of Police Mr. Ana Seneviratne and one Mr. Hema Rupasinghe who had later become a leading Advocate, comprised the first batch of students who were admitted to study law in Peradeniya. Coincidentally, Professor Savitri Goonesekere belonged to the last batch of students who started reading for the law degree in Peradeniya and concluded bachelors’ studies following the then Department of Law being shifted to Colombo in the early 1960s.

After Mr. Goonesekere obtained the LL.B degree from the University of Ceylon with honours, he joined the Sri Lanka Law College, passed his Bar exams, and on 2nd September 1954 was called to the Bar as an Advocate of the Supreme Court. Instead of practicing law, in pursuit of academic excellence, during that same year, he proceeded to the United Kingdom, and gained admission to the prestigious University of Oxford and read for a Master’s degree in Law, which to-date for historic reasons is called the Bachelors’ Degree in Civil Laws (BCL).

Having returned to the country, he functioned initially as a Lecturer and later as a Senior Lecturer initially at the Department of Law in Peradeniya and later at the Faculty of Law in Colombo. He lectured a generation of law students which included those who later became iconic academic and professional giants in the field of law such as Emeritus Professor of Law of the National University of Singapore Professor M. Sournarajah, Emeritus Professor of Law and leading politician Professor G. L. Pieris, Justices of the Supreme Court Justice Mark Fernando and Justice Dr. A.R.B. Amerasinghe, and of course Professor Savitri Goonesekere, herself. In a tribute to Mr. Goonesekere published in 2015, Professor Sournarajah has referred to him as “Magister Magistrorum” – the teacher of teachers.

In 1966, Mr. Goonesekere was appointed as the Principal of the Sri Lanka Law College. President’s Counsel the late Hemantha Warnakulasuriya writing a tribute to Mr. Goonesekere has explained how much students loved and respected him. As you know it was in 1973 that the legal profession was fused into one by the enactment of the Administration of Justice Law. That necessitated the Law College to also amalgamate the Advocates course and the Proctors course which had been running for a very long period of time, and provide a uniform course of study leading to successful students being admitted to the Bar as Attorneys-at-Law. I have been told that it was due to the untiring efforts of Mr. Goonesekere that this transition from the previous system of legal education to the new one, took place smoothly, without any interruption. It was also during the period of Mr. Goonesekere, that the Law College had been required to convert the medium of teaching law from English to ‘Swabhasha’. Mr. Goonesekere had made all necessary arrangements to give effect to the policy of the government, and the medium of education had been changed to ‘Swabhasha’. However, I am almost sure that being a great visionary, Mr. Goonesekere would have implemented the then government’s policy of delivering tertiary education in the vernacular languages, much against his own personal views on the matter. By that change, a single community of lawyers who could practice the law in both English and their own respective vernacular language, gradually became two communities of lawyers, those who could fluently practice in both English and either Sinhala or Tamil, and those who could practice only in their respective vernacular language.

Till 1974, Mr. Goonesekere served that great institution which is now 150 years old, with great distinction. I have learnt that Mr. Goonesekere’s final years as the Principal of the Law College was not smooth. That was due to a certain highly powerful and authoritarian figure in the justice sector of that government taking offence at some articles written and published by Mr. Goonesekere in his capacity as the Chairman of the Civil Rights Movement. Those articles written in the exercise of Mr. Goonesekere’s right to free speech, were critical of the unconventional criminal justice response enforced by the then government by enacting the Criminal Justice Commission Law against youth alleged to have been involved in the 1971 JVP insurrection. He called that process, “A new kind of justice”. It is necessary to place on record, that the new law enacted post facto to deal with the 6 | 23

investigation, filing and prosecution of criminal cases against suspected insurgents, provided for the establishment of a tribunal called the Criminal Justice Commission with penal jurisdiction, instead of causing the cases to be heard before routine courts vested with criminal jurisdiction. This law also provided for statements made by accused to any police officer under any circumstances, to be admissible against them at the trials conducted against them. So, to me, it was quite natural for a human rights activist in the calibre of Mr. Goonesekere to be concerned about the new and temporary system of criminal justice that had been put in place.

As a result of his articles, some key members of the Incorporated Council of Legal Education heavily influenced by the dictates of that powerful person in authority, had made several unfounded allegations against Mr. Goonesekere, which led to a series of events taking place in rapid succession, finally resulting in Mr. Goonesekere’s resignation from the post of Principal of the Law College in June 1974. Thus, ended the second phase of Mr. Goonesekere’s career.

That year Mr. Goonesekere entered the private bar and commenced private practice in Colombo, Matara and Kurunegala. But that was only for a brief period, and in 1976, as he was more interested in being involved in teaching the law, he applied for and obtained an appointment as Associate Professor of Law at the Ahmadu Bello University in Nigeria and left the country.

It is six years thereafter in 1982, that Mr. Goonesekere returned to the country and commenced active practice, which he continued with great eminence till 2006. His practice centered on the application of Public Law and in particular, Fundamental Rights Law, Constitutional Law and Administrative Law. He also handled a few other cases in the appellate courts which involved Land Law. Almost all his cases were argued before the Supreme Court and the Court of Appeal.

I have been told by seniors that, at one point of time, almost all judges of the Supreme Court before whom Mr. Goonesekere appeared, were either students of his at the Law Faculty or at the Law College. I have personally witnessed Mr. Goonesekere presenting and arguing cases before the Supreme Court. To-date I recall with a great sense of admiration and respect, the manner in which he argued cases, successfully convinced judges regarding the virtues of his case and his client, and handled with ease both judges who displayed a friendly disposition towards him, as well as others who could easily be labelled as being hostile towards him.

At the time Mr. Goonesekere entered active practice of the law in the mid-80s, the fundamental rights jurisdiction was still new in the country. Judges of the Supreme Court had to engage in an acute learning curve on the nature and scope of each of the fundamental rights that had been made justiciable by the second republican Constitution of 1978, and regarding judicial precedent from comparable jurisdictions which contained persuasive dicta. Mr. Goonesekere, being well learned in jurisprudence developed by the Supreme Court of India and of the United States of America, as well as by the Strasbourg court on Human Rights had made significant contributions. I have been told how Mr. Goonesekere continued to lecture judges of the Supreme Court on different aspects of fundamental rights. He explained to the judges, applicable international standards and cited and explained judgments from other jurisdictions. He was thereby successful in encouraging justices of that era to apply high standards and engage in desirable judicial borrowings from other jurisdictions. When one surveys the judgments of that era, it is quite evident that he had almost spoon-fed the judges and assisted them to develop our own home-grown fundamental rights jurisprudence of the Supreme Court of Sri Lanka. I propose to refer to some of those judgments in the next part of this Oration.

In addition to being an advocate involved regularly in litigation, Mr. Goonesekere was very much a human rights activist both within and outside the country. He was a founder member of the Civil Rights Movement of Sri Lanka. At one point of time, he also headed the Nadesan Centre for Human Rights, which is an invaluable repository of a significant amount of legal literature in the field of human rights. From 2007 to 2014, Mr. Goonesekere headed the Law and Society Trust, which is a highly respected civil society organisation and a centre of excellence for legal and social research. In recognition of his genuine commitment towards the promotion and protection of human rights and his expertise regarding internationally recognised norms and standards relating to human rights, in 1998 he was appointed a member of the United Nations’ Sub-Commission on the Promotion and Protection of Human Rights. The UN human rights mechanism recognised Mr. Goonesekere as an expert on minority rights.

During the tail end of the last millennium and the first few years following the dawn of the new era, I recall meeting Mr. Goonesekere in Geneva, where the then Human Rights Commission was situated and human rights related-meetings took place. We had discussions on many human rights-related issues over cups of coffee. We disagreed with each other on contentious issues which related to the government’s law enforcement, investigational and prosecutorial responses to terrorism perpetrated by the LTTE. I recall vividly how one day he said “Young man, you don’t have to defend everything the government does. What is wrong is wrong, whoever does it. You will one day understand what I am saying!” In that regard, I do lament that Mr. Goonesekere is no longer with us to see my present phase of professional life.

Mr. Goonesekere was highly respected in the legal profession and therefore in 1993, he was elected uncontested as the Deputy President of the Bar Association of Sri Lanka. During his tenure, the Bar Association carried out several useful projects to provide legal aid to people in need.  

During the early and mid-90s, I had the distinct privilege of interacting with Mr. Goonesekere in the Supreme Court, almost on a day-to-day basis. This was in the backdrop of nearly 5,500 detainees who had been arrested under the Emergency Regulations promulgated under the Public Security Ordinance during the period of 1988 to 1990, detained at the Boossa, Pelawatte, Welikada and a few other detention centres, sending letters and post cards. They complained to the Supreme Court of their detention for a long period of time without valid grounds, not being produced before courts, bail being denied and no charges being framed against them. The Supreme Court initially wondered what should be done in respect of these communications, as the Rules of Court did not specifically provide for action to be taken in such instances. As revealed to me by Mr. Crishantha Weliamuna, PC, it had been the suggestion of Mr. Goonesekere, made during an open court session presided over by the then Chief Justice the late Honourable Parinda Ranasinghe, that the Rules of the Supreme Court be relaxed to accommodate these petitions, and to cause them to be converted into formal Applications and for the Court to process those cases in the best interests of protecting fundamental rights of the detainees. The Court acceded to the suggestion of Mr. Goonesekere, responded positively, and developed a strategy of sending those communications to the Bar Association’s Human Rights Committee and to the Legal Aid Commission of Sri Lanka to interview the complainant detainees and to convert their complaints into formal Petitions.

As a result of this ground-breaking initiative propelled into action by Mr. Goonesekere’s idea, a team of private practitioners working pro-bono converted the communications received by the Supreme Court into formal Applications and supported those Applications before Court. A team of officers of the Attorney General’s Department which included me, was appointed by the Attorney-General to represent the State. Instead of handling those 5,500 odd cases in the usual adversarial manner, lawyers on both sides adopted a cooperative approach, and within approximately 3 years, we were able to successfully conclude almost all matters. Only a very few of those cases proceeded to a full hearing and delivery of judgment. Of course, some detainees were indicted by the Attorney-General in respect of their alleged involvement in subversive activities. A large number of them were released without cases being filed, as there was no evidence against them. Another segment of the detainees was released following a period of ‘rehabilitation’. That was indeed a considerable experience for the lawyers on both sides. It gave us the opportunity of ending what might have been a never-ending period of incarceration for a large number of youth, and facilitating them to reintegrate into free society. The benefits arising out of what the Court did then are seen today in the political landscape and the functioning of our representative democracy.

In recognition of his services to the nation, in 1998 Mr. Goonesekere along with his erstwhile comrade at the Bar Mr. H.L. De Silva, PC were honoured by the President of the Republic by the conferment of Deshamanya, the second highest civilian honour in this country. In 2008, Mr. Goonesekere was awarded Doctor of Laws (LLD) by the University of Colombo, the ultimate recognition that could be accorded to a law academic.

In recognition of his services to the field of higher education and his eminence, in 2002 he was appointed as the Chancellor of the University of Peradeniya, which position he served till 2006.

This brief narrative of the life and career of Mr. R.K.W. Goonesekere would be incomplete, unless I make reference to the fact that due to reasons of principle and policy, on three different occasions, he declined the conferment of silk as President’s Counsel by the Head of State, a call to the inner Bar, he richly deserved. Both Mr. Goonesekere and Dr. Colvin R. De Silva to-date stand tall in the legal profession, as being legendary and highly respected personalities of the Bar, who did not become President’s Counsel due to their own choice.

On 10th November 2014, this country lost this highly respected legal luminary of yester years, at his ripe old age of 86.

You will therefore appreciate ladies and gentlemen that, we are assembled here to commemorate a very special person’s life. An academic truly learned in the law, an advocate highly skilled in the application of the law, an effective and admired administrator, an eminent advocate par excellence, a brave and a principled man, a true son of mother Lanka, and above all, an exemplary gentleman.

Ladies and Gentlemen, I will now move on to the topic assigned to me, and that being the fundamental right to free speech and expression including publication. I do not intend to engage in an academic exercise of tracing the roots of the human right to free speech into England’s Magna Carta of 1215 or to England’s Bill of Rights of 1689, or to France’s Declaration of the Rights of the Man and Citizen of 1789, or to the 1st Amendment of the Constitution of the United States of America of 1791. Nor do I intend to discuss with you its evolution into a full-blown and preeminent human right recognised by International Law through its inclusion in the Universal Declaration of Human Rights of 1948 or the International Covenant on Civil and Political Rights of 1966. Indeed, those are important historical milestones. However, what is critically important to note is that the human right of free speech, expression and publication is recognised universally, and by the municipal laws of all countries of the free world.

You would, I assume appreciate ladies and gentlemen that, speech and other forms of expression are essential for living and necessary for both the individual and for the collective realisation of the true potential of life. It is necessary for both personal and social development. While the right to speech, other forms of expression and their publication is a sine qua non of being born human and an essential feature of any civilised and organised free society, its exercise is not a mere privilege, but an undeniable right.

From a Sri Lankan perspective, it would I assume suffice for this occasion to say that the constitutional right to free speech, expression and publication is possibly the most important fundamental right enshrined within the bundle of civil rights contained in Article 14 of the Constitution of Sri Lanka and specifically contained in Article 14(1)(a). As Chief Justice Sharvananda has said in Joseph Perera alias Bruten Perera vs. The Attorney-General and Others, Article 14 contains great and basic rights which are recognised and guaranteed as the natural rights inherent in the status of a citizen of a free country.

Thus, it would be seen that the infringement of the fundamental right to free speech and expression including publication has direct implications to the operation of the Constitution and to the manner in which the Sovereignty of the People is to be given effect to. Therefore, as the upper guardian of the Constitution, these are additional reasons as to why the Supreme Court needs to pay special attention to the adjudication of Applications in which it is alleged that the fundamental right to free speech, expression and publication has been infringed or there exists an imminent likelihood of the right being infringed.

That constitutional duty in my view should be performed, by conferring on the fundamental right guaranteed by Article 14(1)(a) (which may be termed ‘the facilitator of democracy’) a pre-eminent position only second to the right to life (which is to be treated as an extension of the prohibition against cruel, inhuman and degrading treatment and punishment, and as the cumulative effect of all fundamental rights recognised by our Constitution), and the right to equality (which may be termed ‘the custodian of the rule of law’) guaranteed by Article 12 of the Constitution. The function of the Supreme Court in disputes relating to alleged infringement of fundamental rights goes beyond judicial adjudication of the disputes. Article 118(b) confers on the Supreme Court the constitutional duty of protecting fundamental rights as well.

From a political sense, free speech and other forms of expression and their publication are essential for the meaningful and collective exercise of Sovereignty. Why I say so is primarily because of its link to Democracy. It is free speech and free discussion coupled with circulation of diverse ideas and debate which are extensions of free speech, that facilitate political discourse and the making of choices pertaining to the selection from diverse policies and the election of people’s representatives.

Therefore, free speech, expression and their publication are indispensable for the meaningful exercise of franchise and the true functioning of democracy. For the efficacious functioning of a republican representative democracy, which is a core feature recognised by our Constitution, the ability to freely and in a lawful manner exercise the fundamental right to free speech and expression including publication, is absolutely essential. Therefore, particularly for a country like Sri Lanka which is a republic in which the ultimate supreme power of Sovereignty is vested in the people, free speech is of paramount importance.

One may even wonder why such an elementary thing necessary for human life, for civilised society, for human development and for democracy, such as free speech, had to be recognised as a human right. In my view, that is because, had it not been recognised as a human right, there would have been no assurance at all that politically powerful rulers and leaders of majoritarian groups would permit the citizenry to engage in free speech, expression, and publication. Free speech has been perceived over a long period of time by authoritarian political, religious and social leaders and by intolerant groups exercising power and influence in society, as a threat towards their rule and their status, and as the root cause for dissent and opposition. They have seen it as the beginning of the commencement and evolution of movements which have the potential of threatening their power, destabilising their rule, and overthrowing them through the exercise of the will of the people by galvanizing thoughts and converting it into action. Therefore, over several hundreds of years, the powerful have opposed free speech. They have adopted numerous measures to curb free speech. It is this background that necessitated the development of the law recognising free speech along with other rights as a Human Right, which under our law is constitutionally recognised as a ‘Fundamental Right’.

As Justice Mark Fernando has held in Deshapriya and Another v. Municipal Council, Nuwara Eliya and Others, “the right to support or to criticize governments and political parties, policies and programmes is fundamental to the democratic way of life …”. In Channa Pieris and Others v. Attorney General and Others (famously known as the ‘Ratawesi Peramuna’ case), Justice Dr. A.R.B. Amerasinghe has observed that “the unfettered interchange of ideas from diverse and antagonistic sources, however unorthodox or controversial, however shocking or offensive or disturbing they may be to the elected representatives of the people or to any sector of the population, however hateful to the prevailing climate of opinion, even ideas which at the time a vast majority of the people and their elected representatives believe to be false and fraught with evil consequences, must be protected and must not be abridged, if the truth is to prevail.”

In Lerins Peiris v. Neil Rupasinghe, Member of Parliament and Others, Dr. A.R.B. Amerasinghe has held that “Freedom of thought and expression is an indispensable condition if Sri Lanka is to be more than a nominally representative democracy. …Speech in the sense of expression by words or deeds is the way in which thoughts are made known to others. Speech concerning public affairs is more than self-expression: it is the essence of self-government. To make an informed and educated decision in choosing his or her elected representative, in deciding to vote one group of persons rather than another, a citizen must necessarily have the opportunity of being informed and educated with regard to proposed policies. Members of the public and their representatives…must be able to freely and openly, without previous restraint of fear of harassment, discuss such matters and obtain clarification so as to be able to form judgments affecting their own lives…”

It is incumbent on me to mention that in the Deshapriya, Channa Peiris and Lerins Peiris cases, Mr. R.K.W. Goonesekere had appeared for the Petitioners. Therefore, one can only assume that the profound statements made by those most respected justices of the bygone era in these three cases, had been significantly influenced by the submissions made by Mr. Goonesekere in court.

Perusal of judgments of the Supreme Court during the past 50 years reveal that, a considerable number of Applications filed in Court relating to alleged instances of infringement of Article 14(1)(a) has been connected with speech and publications containing politically sensitive content critical of the governments of that era. In this regard, the following views of Chief Justice Sharvananda in Joseph Perera alias Bruten Perera vs. Attorney-General and Others, are of significance: “… criticism of Government, however unpalatable it be, cannot be restricted or penalized 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 unpleasant sharp attacks on Government.”

As it is to be expected, the expression of free speech can indeed cause harm, infringe other people’s rights, injure people’s feelings, affect social cohesion, incite violence, threaten public security, and can impact upon the orderly conduct of societal functions. It can also impair multiple areas of the State’s entitlement and responsibility to govern. In the extreme, it can galvanize into ultra-constitutional means of overthrowing democratically elected governments. Therefore, it would not be possible to support the view that the freedom to engage in free speech and expression should be unrestricted.

The fundamental right to free speech is not a carte blanche. In this regard, no one should overlook the stipulation contained in Article 28 of the Constitution, that the exercise and enjoyment of rights and freedoms are inseparable from the performance of duties and obligations, including the duty to respect for the rights and freedoms of others.

In yet another case argued by Mr. Goonesekere, Dissanayake v. University of Sri Jayawardenepura and Two Others, Chief Justice Sharvananda has observed that absolute and unrestricted individual rights do not and cannot exist in a modern State. Social control is needed to preserve the very liberty guaranteed. All rights are only relative and not absolute. The principle, on which the power of the State to impose restrictions is based on the principle that, all individual rights of a person are held subject to such reasonable limitations and regulations as may be necessary or expedient for the protection of the general welfare of the society. Thus, Chief Justice Sharvananda observed that it is important to note that the guarantee of freedom of speech recognised by Article 14(1)(a) of the Constitution, does not give an absolute protection for every utterance.

Therefore, you would note that the exercise of the rights conferred by this Article must not result in the violation of the rights of others, adversely affect the public’s interest to be governed by a democratically elected government or destabilise the State functioning within the realms of the rule of law. Therefore, it would be quite justifiable for the State to be able to regulate the exercise of the freedom of speech and expression and control its exercise in certain circumstances. Of course, such regulation and control must be for the larger good of the public.

Nevertheless, under our own Constitution, restrictions that may be imposed on free speech and expression must necessarily be under the authority vested by laws duly enacted and which come within the scope of Articles 15(2), 15(7) and 15(8) of the Constitution. Article 15(2) provides for the imposition of restrictions on the freedom of speech and expression including publication as may be prescribed by law enacted for several specific purposes, and those being for the protection of the interests of racial and religious harmony, parliamentary privilege, contempt of court, protection of persons from defamation and to prevent incitement to commit offences. Article 15(7) adds several more purposes for which laws may be enacted and enforced in a manner that restricts the fundamental right to free speech. They being, protection of national security and public order, protection of public health and morality, securing due recognition and respect for the rights and freedoms of others, and for the just requirements of the general welfare of a democratic society. Article 15(8) also recognises the entitlement to impose restrictions on certain categories of employees of the State such as personnel of the armed forces and the police who are entrusted with the maintenance of public order.

What each of the terms contained in Articles 15(2), 15(7) and 15(8) in fact means has been and can continue to be matters of debate. Nevertheless, what seems to be the most acceptable ruling is that, in exercising the freedom of speech and expression including publication, one cannot violate constraints on the exercise of the right to free speech duly imposed acting under the authority of the law which comes within Articles 15(2), 15(7), and 15(8). On the other hand, it is important to note that no law can be enacted in furtherance of collateral objectives with the view to enabling mala-fide oppression or curtailment of free speech in the guise of enacting legislation which purportedly comes within Articles 15(2), 15(7) and 15(8). The purpose of enacting laws which enable restriction of free speech, expression and publication must be clear, specific and enacted in good faith for the purpose of achieving one or more of the objectives set out in Articles 15(2), 15(7) and 15(8). The provisions of such laws should have a clear and rational nexus with the purported objectives of the law which come within Articles 15(2), 15(7) and 15(8).

In this regard, I must make reference to the fact, Mr. R.K.W. Goonesekere has appeared in many cases argued before the Supreme Court where Mr. Goonesekere has contributed significantly towards prompting the Supreme Court to provide rather strict and narrow interpretations of the several terms contained in Articles 15(2), 15(7) and 15(8).

It is necessary to note that in view of Article 16 of the Constitution, the State may not only rely on post – 1978 legislation purported to have been enacted in compliance with Articles 15(2), 15(7) and 15(8) of the Constitution to take executive measures to curtail free speech or which have the effect of suppressing the exercise of the right to free speech. The State has in the past relied on pre - 1978 legislation too for such purpose. A candid example of one such provision is section 120 of the Penal Code which contains the offence of sedition.

The offence of sedition contained in section 120 of the Penal Code came into our attention in a case decided by our Court recently in 2023, that being the case of Mohomed Razik Mohemed Ramzy vs. Senaratne and Others, to which I will advert to shortly.

Particularly in view of its harshness, criminal justice measures including arrest and detention, can be used to curtail free speech and to harass and punish persons who have engaged in the exercise of free speech. Sometimes we see criminal justice measures being enforced in an abusive manner in respect of people who have engaged in speech and expression of dissenting or unpopular views. Judgments of the Supreme Court provides testament to this unfortunate reality. Joseph Perera alias Bruten Perera vs. The Attorney-General and Others, Channa Pieris and Others vs. Attorney General and Others, Gunawardena and Another vs. Pathirana and Others, and Wijeratne vs. Vijitha Perera and Others are some examples.

In the Ramzy Razik case, the Petitioner who had in 2020 posted a message on Facebook calling for an ‘ideological jihad’ using the ‘pen and the keyboard’ for the purpose of countering purported propaganda against the Muslim community alleging that they were responsible for the spreading of the COVID pandemic, was met with arrest by the Criminal Investigation Department and a period of remand of five and a half months. Denial of bail was on the footing that the Facebook post calling for an ideological jihad amounted to committing the offence of sedition as contained in section 120 of the Penal Code, by causing dissention among different communities, and by committing the offence contained in section 3(1) of the ICCPR Act by engaging in the spread of racial hatred. It was also alleged that he had committed an offence under the Computer Crimes Act, by using a computer for an unlawful purpose. Following the consideration of a Fundamental Rights Application filed on Ramzy Razik’s behalf by an Attorney-at-Law, the Supreme Court concluded that Ramzy Razik had committed no offence and that he had merely exercised his fundamental right to free speech and expression. The Court concluded that the State had infringed his fundamental rights by having him arrested, held him in police custody and caused his remand custody. The Court observed the devastating effect the enforcement of such unlawful criminal justice measures could have in the long-run on the exercise of the right of free speech.

It is necessary to note that some of these actions taken with the use of criminal justice measures with the short-term aim of suppressing dissent, strengthening authoritarianism, accumulation of executive power and creating a totalitarian State, which are the antithesis to republican and democratic norms and values and principles of law enshrined in Sri Lanka’s Constitution, will only result in long-term destruction of the very same authorities who seek to strengthen their power beyond what is permitted by the rule of law and those who may seek to govern without respecting alternate views, dissent and lawful means of democratic opposition.

In Amaratunga v. Sirimal and Others, known as the ‘Jana Ghosha’ case, represented by Mr. Goonesekere on behalf of the Petitioners, Justice Mark Fernando has observed that “Stifling the peaceful expression of legitimate dissent today can only result, inexorably, in the catastrophic explosion of violence some other day.” Thus, all of these disastrous consequences can in the long-term result in the fragmentation of the country and the destruction of the State and its ruler. The ignominious long-term outcome of systematic and widespread infringement of such fundamental rights would be, most unfortunately our country becoming a failed State.

There is the need to touch another area. In today’s context, the exercise of free speech and associated communication has assumed new dimensions. That is particularly due to the media in which dissemination of information and expression of views is conveyed to others. Earlier, it was through open-air delivery of speeches. Then came the print media, followed by the radio. In the more recent past, television added a new dimension to communication. However, it is the arrival of digital channels and platforms of communication using primarily the Internet, which has caused a revolutionary change in both private and public communication.

These new digitized avenues have not only caused a revolutionary change in private and mass communication, they have created new vistas for the exercise of the fundamental right to free speech and expression including publication. Their prevalence and use have rapidly overtaken conventional channels of communication, and have thus become effective, popular and indispensable.

The key attributes of these new channels of communication are, the ability to engage in widespread dissemination of contents of speech and other forms of expression, accurately, efficiently, at low cost, and expeditiously. The manner in which the entire global population or an unprecedented audience could be reached by a mere click on the keyboard or a touch on the screen, is fascinating.

The development of digital channels of communication has assumed to itself a new form of mass communication referred to as ‘social media’ where each and every member of the community has become a resource person engaging in free speech and expression, a journalist, an editor, a broadcaster, a transmitter, a re-transmitter, a reviewer, a reader and a viewer. The impact of digital social media is significant, not only because of the captivating global audience, but also because of its ability to attract the attention of both people who seek a particular category of information and those who never solicited the information contained in the message or product being disseminated. Mere passing-by recipients of social media content, may thereafter become part of a captive audience or potential consumers as a result of their happening to see, read and view certain content and being influenced by it. Drawn into and attracted to content being displayed on our own Facebook page or wall, Instagram feed or the X (Twitter) handle, curiosity awakened, and finally influenced by the content, some users understandably choose to believe the contents, accept views, and influenced thereby, decide and conduct themselves in the manner strategized by the disseminator of the content. The impact of social media has now assumed a new dimension as dissemination and display of content is facilitated by automated strategy-driven software programmes or bots driven by conventional algorithms as well as by the use of artificial intelligence.

The impact of social media and other forms of digital communication on political campaigning is significant and quite visible. While conventional political platforms and traditional modes of campaigning and lobbying remain visible, most political campaigns are effectively run primarily through social media. Thus, these new channels of communication can easily influence political discourses and the circumstances under which the public take political choices and decisions. Polarisation of views is likely to increase, particularly as the algorithm and artificial intelligence-driven operations will continue to feed us with content we like and not provide a balanced view. Thus, you would appreciate the potential for these new channels of communication to influence political decision-making and the exercise of franchise.

It can well be argued that the degree of influence which social media exerts is well beyond what is ethically permissible, and may even border on subtle ways of coercion resulting in spontaneous and unintentional decision-making and involuntary behaviour due to sheer impulsiveness. Its impact on individual rights such as privacy and dignity can be alarming.

Whether these emerging challenges arising out of new digital communication channels including the social media necessitate a fresh look at the fundamental right to free speech, is a debatable issue. Possibly awakened by the ground realities associated with the effect of social media on the political landscape and its potential to be abused to defame individuals, cause the commission of certain grievous crimes such as online obscenity relating to children, criminal intimidation, dissemination of religious extremism, terrorist funding, causing sexual harassment and scandalising of the judiciary and judicial institutions, the Parliament of Sri Lanka not long ago enacted the Online Safety Act, No. 9 of 2024. Sri Lanka does not stand out as being the first or the only country to enact similar legislation.

This new statute has attracted to it considerable controversy and debate. The debate surrounds primarily on several factors. First, whether or not the Online Safety Act comes within the scope of Articles 15(2), 15(7) and 15(8) of the Constitution which provide the only constitutionally permissible ways in which the exercise of the fundamental right to free speech could be restricted. Second, whether or not the Parliament during the committee stage of the legislation enactment process amended the Bill to make it fully compliant with the Determination of the Supreme Court which considered the constitutionality of the corresponding Bill. Third, whether the Act would lend itself to law enforcement related abuses or enforcement overreach, affecting the legitimate exercise of the right to free speech. And fourth, whether the law as it stands now instills in the public a chilling effect which would result in prior restraint or self-censorship.

I would assume ladies and gentlemen that you would understand my desire not to enter that controversial arena and express my own views, as it is not only a legal duty conferred on all judicial officers to abide by Article 80(3) of the Constitution and refrain from commenting on legislation (once enacted) when adjudicating cases, but is also prudent to respect and abide by that Article of the Constitution when expressing views in public. It would indeed have been interesting to listen to and consider Mr. Goonesekere’s views regarding digitized channels of communication and the provisions of the Online Safety Act.

I wish to conclude ladies and gentlemen by quoting the following paragraph from the judgment of the Supreme Court in the Ramzy Razik’s case, which I had the privilege of authoring:

“It is the synergy created through the fundamental rights contained in Articles 10 and 14, coupled with the fundamental rights contained in Articles 11 and 13 guaranteeing protection, security and physical freedom, and the status of equality conferred by Article 12, which cumulatively vests freedom, independence, liberty, protection and dignity in the true and comprehensive sense of those words to the People of Sri Lanka, and confers on them the opportunity and meaningfulness to collectively be the sovereigns of this Republic. Therefore, recognizing, promoting and protecting the fundamental rights guaranteed by Articles 10 to 14 are of critical importance and the solemn responsibility of the State. It is the bounden constitutional duty of the State, which has been created by the Constitution to serve the sovereign People, both collectively and through the three organs of the State. Therefore, the State shall not infringe such fundamental rights. It may however regulate and or restrict the exercise of such fundamental rights through law, to the extent and in the manner authorized by the Constitution, when doing so is necessary for the protection of wider public and national interests.”

I thank you ladies and gentlemen for your patient hearing.