By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

The more things change, the more they remain the same, one would be apt to murmur in the wake of this week’s decision by the Supreme Court in Kurukulasuriya v SLRC and Others (2021) and in the connected application filed by JKW Jayasekara against Sri Lanka’s state telecaster, Rupavahini Corporation, even as the Supreme Court stressed paramount dangers in suppressing the freedom of expression of dissenters and critics.

A feeling of persistent deja vu

Indeed, there is an uncanny feeling of deja vu. For if the time periods were switched around, that very same atmosphere of intimidation and non-tolerance of opposing views would be prevalent in full force now, aggravated moreover given the current status quo. Which is why this ruling of the Court assumes some importance, extraordinarily late though it may be. Both petitioners Uvindu Kurukulasuriya and JKW Jayasekara had petitioned the Court, aggrieved by the hasty curtailing of the popular discussion, ‘Ira Anduru Pata,’by the state telecaster in 2008 midway during the discussion.

The reason was, as the respondents in the two fundamental rights cases argued (unwisely as it so turned out to be), was the first petitioner’s so-called ‘deviation’ from the topic of discussion by alleging that the media was subject to self-censorship, by his referring to a pending court case against a journalist detained under the Prevention of Terrorism Act and by his critiquing regulations restricting the media by a President who, as he complained, ‘used to be a friend of the media.’ The fact that the first petitioner had already challenged these regulations at the time was also cited by the state telecaster as a ground to bring his criticism within the realm of that all too ubiquitous sub judiceprinciple.

The Court ruled firmly against both these objections as a constitutional basis on which the two petitioners’ rights could be restricted. The rights to freedom of expression and of equal treatment before the law of the first petitioner (a panelist prevented from participating in the programme) and the right to freedom of thought and equality of the second petitioner (a viewer), was upheld. First, the ludicrous objection that the ‘political speech’ of the first petitioner was a good enough ground to stop the programme was summarily dispensed with. The Court reminded the State that, ‘political speech’ was not listed as a permissible basis of restriction in the Constitution.

Dissent and disagreement are constitutionally protected

In so doing, well established decisions of the Supreme Court were adverted to, 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, (per MDH Fernando J in Gunawardena v Pathirana OIC Police Station, Elpitiya,1997). This tying up of the right of dissent to Article 4 (d) is a welcome hearkening to an almost forgotten past, when the apex Court of this country used to routinely if not regularly, link the protection of constitutional liberties to the duty of all state entities to, ‘respect, secure and advance the exercise of fundamental rights…’

As the Court had repeatedly warned in the past through celebrated judicial cautions that were brushed away in recent decades of repression and intimidation, sometimes even by judges themselves, ‘The Constitution, and in particular Articles 10, 12, and 14, recognise the fundamental right of every Sri Lankan to be different: to think differently: and to have and to express different opinions – not merely a right to disagree privately in silence, but to communicate disagreement openly, by word, conduct and action, by peaceful and lawful means.’ (Amaratunga v. Sirimal, 1993). Reiterating these principles, the February 17^th decision of the Court noted that the state telecaster had acted contrary to all these well known warnings.

Its decision to abruptly terminate the programme without informing the panelists spoke to an ‘imperious’ atttitude of the respondents, that they have ‘absolute control’ over views that are telecasted through the media, the Court said. In comments that Sri Lanka’s private and state media should take note of, it was observed that, ‘media institutions must curate their programmes to include all views and cater to all citizens equally without manipulating the leverage they have over public opinion.’ The judges emphasized however that, ‘unfortunately, attitudes that shun media ethics and legal obligations appear to influence the conduct of many of the Sri Lankan media institutions, whether stateowned or private.’

Sub judice cannot be employed as an omnibus denial of speech

Secondly, the Court unequivocally rejected the unrestrained use of sub judice as a basis to restrict freedom of speech. In this instance, it was pointed out that sub judice is a legal safeguard. Media institutions should not be allowed to use that safeguard ‘as a cloak to stifle the citizen’s right to freedom of expression’ or for justifying autocratic conduct thereto. Here, the first petitioner’s comments could not be said to have a direct bearing on any ongoing case as such. While the reasoning of the Court in this regard can scarcely be found fault with, the distinction drawn by the judges between an ongoing television programme with immediate expression of views and a printed publication which has more inbuilt safeguards to prevent and check any propensity to infringe the sub judice rule is however more contested.

Even so, the reluctance to follow a long critiqued judicial precedent in In Re Garuminige Tillekeratne, [1991] must be welcomed. In that case, the Supreme Court had held that any statements which might affect or are likely to affect the outcome of a pending case would amount to contempt. That was a far harsher view as differentiated from the test of substantial likelihood of prejudice to the outcome of a case. The fact that the Court in this instant decision, imposed a stricter test on when sub judice could be found, is all to the good. It may have also been of immense help if the commonsensical caution that, sub judice generally applies to jury trials may have been stressed.

In Sri Lanka, where this distinction is lost sight of, sub judice is generally barked out to stop discussion in the most unlikeliest of contexts. As such, it would be wise to remember what Lord Bridge said, in Re Lonrho plc (1989), ‘So far as the appellate tribunal is concerned, it is difficult to visualise circumstances in which any court in the United Kingdom exercising appellate jurisdiction would be in the least likely to be influenced by public discussion of the merits of a decision appealed against or of the parties’ conduct in the proceedings.’

All in all, the Court’s upholding of the right of the participatory listener/viewer (second petitioner) who was stopped from viewing the programme due to the arbitrary actions of the respondents follows in the pattern of familiar jurisprudence (per MDH Fernando J in Wimal Fernando v SLBC, 1996). Agreeing with judicial reasoning in that decision ‘…that information is the staple food of thought and that the right to information simpliciter, is a corollary of freedom of thought guaranteed by Article 10, it was held in the circumstances of this case, that the halting of the programme was not due to any justifiable reasons on the part of the respondents and that, the fundamental right to freedom of thought of the second petitioner had been infringed.

Much needed (judicial) check on media

The right to equality under the law (Article 12) was also ruled as being infringed in that the Rupavahini Corporation had disregarded its duty to be fair and impartial in the telecasting of its programmes. Indeed, it must be said that this decision applies with full authority as a much needed check on the country’s electronic media which, as the Court rightly observed, acts more in violating the freedom of expression of citizens than protecting it thereof. These sentiments should apply equally to the private media as well as the state media. There is a duty incumbent on the media to demonstrate professional standards, due diligence and fairness of reporting.

It is hoped that the Supreme Court’s thinking in this respect will be taken to heart.

*Courtesy Sunday Times