25 July, 2021

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Freedom Of Expression & Covid-19

By Radha Kuruwitabandara –

Radha Kuruwitabandara

The existing governing body has led the society to a point where they are convinced to believe that the only way out of the pandemic is to get infected and survive by a miracle, even at the lapse of more than one year from the initial outbreak. The preventive measures seem to be hardly effective. In the midst of a bundle of massive jokes provided by the government, people of our great nation are realizing a lot of realities. It is a fact that the pandemic is a global crisis but being countrymen of a small island who hardy learns lessons by our mistakes, we are at even deeper stake. While the pandemic hits us right at our throat, here we are struggling with ourselves for not having chosen a better option because the pandemic has taken away half the rights of the citizens and the other half has been thieved by the governing authority itself.

As a result of the ‘general public’ having to be obliged to the ongoing island wide travel restrictions, the only access-path to information in the outer world has become news and digital media. There is absolutely no alternative to both express thoughts or to access to information whatsoever. It is needless to say that media telecasts that operate on countless television channels have lost credibility despite their operation around the clock because of the nauseous behavior of reporting information showcasing favoritism. On the other side, even though digital media stands as an option, in Sri Lanka, only 50 percent of the population has access to proper digital information platforms.

While facts stand as such, on the 08th of June 2021, the Police Media Unit issued a Media Announcement on Circulation of Fake news, photographs, videos causing disunity, hate and obstructing the COVID 19 programme. This circular warns the public that the Criminal Investigations Department (CID) and the Computer Crimes Division of Sri Lanka Police will be conducting investigations by surfing the internet and capture violators to enforce the law and alerts the public to refrain from spreading, aiding or abetting spreading of news of such sort. This circular provides a list of offences under existing statutes and the arrests ought to be done at the violation of the circular allows the Police to act without a warrant issued by a Magistrate.

Providing access to accurate information was a right provided by the 19th amendment to the Constitution of the land.  The Right to Information act was its’ ultimate fruit. The government of any country has a duty to ensure that its’ subjects receive accurate information about the current situation of the land, be it a crisis or harmony. Therefore, on the outset, the aforementioned circular paints a flawless picture. The accessibility into many news sites are exclusively rendered to media officials with the belief and confidence that they will report the absolute truth and nothing else. In other words, the main digital and printed media is expected to be the channel through which the citizens see the actual incident. However, given the ethical and moral deportment of governing individuals and the political literacy of the countrymen, it is not as pleasing as it sounds. State owned media has been used as a veil to cover flaws of the governing authority, throughout the history irrespective of the government in power. This has weakened the confidence in people to rely on the facts they report. Even worsening the situation, privately owned media institutions also have a tendency to pick a particular political concept and report facts favorably. Among the many news sessions that air in one evening, consider listening to a few on a couple of TV channels from the two corners to end up with a bundle of contradicting information about a single incident. There is a clearly observed vent between an actual incident and the subsequent report of it. It is through this vent, the tittle-tattle takes wings. At the lack of credible information in the circulation, the public tends to seek for it in other means such as social media.

Social media in the present context mainly includes communication platforms through which virtual social gatherings are enabled. The cyber space allows content to be shared among its members. The police circular in question seems to be aiming to restrict mainly the Facebook considering the subsequent arrests pertaining to it.

The Constitution of the Democratic Socialist Republic of Sri Lanka provides for the Freedom of Expression under Article 14(1)(a). This freedom includes the right of a person to express and propagate freely his ideas and opinions, discussion and free exchange of ideas. As Sir Ivo Jennings has once stated, “Without freedom of speech the appeal to reason which is the basis of democracy cannot be made”. This in fact, lays the fundamentals of a ‘Democratic’ government of free people and the purpose of such guarantee is to prevent public authorities from assuming a guardianship of the minds of the people through regulating the press, speech and religion. This freedom rests upon the assumption that the wildest possible dissemination of information from diverse and antagonistic sources is essential for the welfare of the public, as was founded by the judges in the case of Associated Press vs. U.S. (1945) 326 U.S. 1, 20. Express Newspapers Ltd vs. Union of India A.I.R. (1958).

Even though the legal system have major diversities, judgments of the United States can be ideologically helpful in the Sri Lankan context since concepts such as fundamental rights of citizens are universal. In Thornhill vs. Alabama 310 U.S. 88, it has been noted that “the safeguarding of these rights to the ends that men may speak as they think on matters vital to them and that falsehood may be exposed through the process of education and discussion is essential to free government”. Therefore, it is important to study whether the restrictions imposed by the said circular are ethical to be imposed generally and also at a time of crisis such as the pandemic. People are confined to the limited space of their household and the socializing with the outer world is restricted. Humans by nature, crave for new information and specifically what is happening around. The greed for information has been facilitated by social media platforms lately at the absence of credible news. This is why the social media restriction does not appear to be justifiable in the aspect of access to information.

On the other hand, social media has become a popular platform on which people tend to express various emotions, be it anger, frustration, sadness or amusement. At a time in which man-to-man connections have almost left life, they are in need of a platform to express themselves. Regulatory measures must be in force but crowning the executory level arm of the executive to decide, conclude and punish individuals for utilizing their right to expression is very dangerous than the words could explain for many reasons. It is well understood that there exist certain legal restrictions to the exercise of this freedom. However, the context in which it is applied is indispensable. The offences included in the Police Circular dated 08th June 2021 refers to the following offences.

a) Sections 120, 286, 286(a), 291(a), 291(b), 345, 365(c), 402, 403 and 486 of the Penal Code of Sri Lanka,

b) Section 03 of the International Covenant on Civil and Political Rights Act No. 56 of 2007,

c) Section 06 of Computer Crimes Act No.24 of 2007,

d) Sections 02 and 03 of Preventions of Terrorism Act No.48 of 1979,

e) Section 02 of the Obscene Publications Ordinance No.04 of 1927

Even though these, offences appear to be grave at a glance, the applications of them into the COVID 19 context is what seems to be contradictory because they are a selection of Sections from a bundle of Statutes while the actual issue is a health related matter. Therefore, it creates the doubt that the limitation is imposed to suppress disagreeing expressions risen by the people. If the matter in question is to stop the dissemination of false and untrue news, the progressive step a thoughtful democratic government have taken would be to establish a credible platform from which the citizens would access true information. In fact, if truth is in surface and in circulation, there is no visible danger of false being spread. Humans opt for unofficial information only when the official information are discredited.

Apart from the contextual incompatibility, to arrest without a warrant is to let the police decide exclusively on it. Considering the socio-political background of Sri Lanka, giving absolute powers to any arm of the government is a call for danger because both the society and the governing arm are not competent enough to face that. There are many provisions in the Penal Code of Sri Lanka which have been adopted to fit to the socio-political background of Sri Lanka when it was brought down to Ceylon from the Crown back in the days foreseeing the influence of politics in governance. Most critical factor is the absence of a proper criteria as to what is fake or otherwise which could most likely lead to misuse and abuse of power.

Worldwide trends have been developing through time in respect of constructing laws to regulate false information and dissemination of fake news. Malaysia enacted the Anti-Fake News Act in 2018 to regulate not only digital media but all types of reporting of information. In 2020, Pakistan established provisions by the Citizens Protection (Against Online Harm) Rules to appoint a National Coordinator through the Minister in Charge. By passing the Protection from Online falsehoods and Manipulations Act, Singapore has identified two categories of offences namely; Communicating a false statement and Communicating a statement in respect of a matter specified in the Act. Offences listed under the second category appear to be similar to those listed in the Police Circular in question, issued by the Sri Lanka Police, Singapore does not provide for any physical punishment to the offender. More significantly, it can be observed that none of the above foreign legislations provide authoritative power to the Police directly. Alternatively, they provide to appoint a Competent authority to act in that favor and make decisions accordingly in regulating the same. In enforcement, all these foreign legislations can impose monetary punishments or issue orders to reinstate the damage cause by the dissemination of false information or fake news.

The United Nations Human Rights Council issued a joint declaration in collaboration with a few other world organizations on Freedom of Expression and ‘Fake news’, Disinformation and Propaganda, extensively elaborating the duties of all stakeholders including States in respect of the problem in hand.

Right to dissent and disagree are limbs deriving from freedom of speech and expression. This has been identified in a series of decisions delivered by the Supreme Court of the Country. Amaratunga v. Sirimal and others case or the famously known ‘Jana Ghosha’ case was a classic example in which the criticism of the government was identified as a  Fundamental right enjoyed under the Article 14(1)(a) of the Constitution.  In Wijertane Vs. Perera SC FR 379/93, SCM 2.3.94, the belief of the Supreme Court was 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 Article14 (1) (a).”

In the case of Deshapriya Vs. Municipal Council Nuwara Eliya (1995) 1 SLR 362 in which the matter in question was an anti-governmental newspaper, founded the following;

“The right to support or to criticize 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”

The most recent instance in which this was discussed and decided by His Lordship Justice Aluwihare with two other judges of the Supreme Court agreeing was the case of U. N. S. P. Kurukulasuriya, Convenor, Free Media Movement, and J. K. W. Jayasekara, V Sri Lanka Rupavahini Corporation SCFR 556/2008 and 557/2008 decided on 17.02.2021, which held as follows:

“The judgments of the Supreme Court constitute a body of jurisprudence that has evolved over the years, and the Supreme Court has recognized that the right to comment on public issues and criticize public officials and public institutions is essential for the exercise of civil and political freedoms so valued by democratic society”

The court quoted with approval few passages found in several decisions as referred to in this article earlier.

Thus, it is the duty of a democratic government to permit and allow disagreeing opinions and if grasped in proper sense, those would be the guiding lights. It is in fact ironic how the government which used social media as a prominent election campaign mode is now trying to restrict the social media to disallow the dissenting opinions of the citizens. As the 3rd US President, Thomas Jefferson has once said “No government should be without critics. If its intentions are good then it has nothing to fear from criticism”.

*Radha Kuruwitabandara, Attorney at Law

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