By Thishya Weragoda –

It is ironic that the Government which brought the Right to Information Act[1] into fruition has taken a drastic step to restrict the freedom of expression of the people. Facebook, Whatsapp, Viber and IMO were reportedly blocked/access restricted by the Government of Sri Lanka (GoSL) for a period of 72 hours from midday on 6^th March 2018.[2] It has been over 72 hours but the Government has not reinstated the disrupted services as at time of writing this article.

The legality of this measure has to be assessed from the perspective of upholding the Rule of Law. It is often said that “road to hell is paved with good intentions”. Although the stated objective of the blockage was to prevent the dissemination of rumours and hate messages, the overreaching application has had grave repercussions the freedom of expression of the citizens and serious consequences to legitimate business interests of a significant segment of society.

The Telecommunications Operators gave prominence to this requirement by sharing a message which read as follows:

“On the directive of TRCSL in the interest of national security, access to certain Social Media sites and messaging platforms will be restricted with immediate effect until further notice”.[3]

The legal regime under which all telecommunications service providers operate is under license issued by the Minister in terms of Section 17 of the Telecommunications Act No. 25 of 1991 (as amended by 27 of 1996) The objectives of the Telecommunications Act are set out in Section 4 of the Act.

Restrictions on the use of telecommunications could be imposed/introduced in terms of two provisions of the Act. That is under Section 5, and Section 69 of the Act.

Section 5 of the Telecommunications Act, inter alia provides as follows:

5. For the purpose of achieving the objects referred to in section 4, the Authority shall have the following powers, and duties….

(f) to take such regulatory measures as may be prescribed to comply with any general or special directions that may be given to it from time to time by the Government of Sri Lanka in the interest of national security, public order and the defence of the country

….

{emphasis added}

Section 71 of the Act provides power to the Minister to make regulations, and in terms of Section 71(2), the Minister may make Regulations prescribing, “the regulatory measures as may become necessary in order to comply with any general or special directions that may be given by the Government under paragraph (f) of Section 5.”

Section 73 defines the term “prescribed” as “prescribed by regulations made under [the] Act”;

It is evident that the relevant Minister has not made such regulation in terms of the Act prior to such directive being given by TRCSL to any Internet Service Provider (ISP) to block access to certain websites.[4]

Section 69 of the Act reads as follows:

69. If on the occurrence of any public emergency or in the interest of public safety and tranquility, it is expedient or necessary that the transmission and reception of messages, by telecommunication should be prohibited or be subject to supervision and control, the Minister may, upon being satisfied of the above matter by Order made either generally and published in the Gazette or specially in writing in respect of any telecommunication service provided in any place in Sri Lanka or in any ship in the territorial waters of Sri Lanka or in any vehicle or aircraft in or over Sri Lanka or the territorial waters thereof”

a) where prohibition is expedient or necessary, prohibit the transmission or reception of messages by telecommunication either generally or at any specified person or class of person; or

b) where supervision and control are expedient or necessary

(i) prescribe the conditions and restrictions subject to which messages may be transmitted or received by telecommunication either generally or by an operator or person in charge of any specified telecommunication service ; and

(ii) make such provision as he may deem necessary for the interception or the censoring of all or any specified class or description of messages submitted for transmission by, or transmitted or received by telecommunication.

{emphasis added}

Since the prohibition of access to social media and messaging services was throughout the Country, the Minister was only empowered to do so by publishing an Order in the Gazette. However, with regard to the blockage of access to internet in the Kandy district was in respect of a specified class of persons, it may be argued that such Order may be made in writing although such Order too would have to be made by publication in the Gazette since the effect of the ban was more general in nature.

Therefore, prior to the TRCSL giving such directives to any of the Telecommunication operators, it clearly appears that the Minister is required by the Act to publish a Regulation in accordance with Section 72 and 5(f) of the Act and/or an Order published in the Gazette or special Order in Writing in accordance with Section 69.

A further alternative which was available to the Government yet not exercised was in terms of the provisions of the Public Security Ordinance (PSO). The President having declared a state of Emergency is empowered by Section 5 of the PSO to make Emergency Regulations which may supersede any other Written Law. The Emergency (Miscellaneous Provisions and Powers) Regulation No. 1 of 2018[5] does not contain any such regulations restricting access to social media and instant messaging applications. The only reference to Social Media is in Regulation 15 which reads as follows:

15. No person shall, by word of mouth or by any other means whatsoever including through digital and or social media communicate or spread any rumour or false statement or any information or image or message which is likely to cause public alarm or public disorder, racial violence or incite the committing of any offence.

{emphasis added}

Therefore it is clear that No Emergency Regulation has been promulgated to restrict the access of information.

In any event, even if such Emergency Regulation promulgated, Article 155(2) of the Constitution stipulates that the power of the President to make emergency regulations under the Public Security Ordinance … “shall include the power to make regulations, having the legal effect of overriding, amending or suspending the operation of the provisions of any law, except the provisions of the Constitution.” Thus, no Emergency Regulation could be promulgated in violation of the provisions of the Constitution.

In Joseph Perera alias Bruten Perera v. Attorney General[6] it was held inter alia that,

“..the President’s legislative power of making Emergency Regulations is not unlimited. It is not competent for the President to restrict via Emergency Regulations the exercise and operation of the fundamental rights of the citizen beyond that warranted by Article 15(1-8) of the Constitution. The width of the restriction envisaged by Article 15(7) cannot be added, varied or superseded by any emergency regulation in excess of that referred to in Article 15(7). For a restriction, imposed by the Emergency Regulations which directly and substantially affects the freedom of speech, to be valid, it has to be based on one of the grounds of restriction specified in Article 15(2) and 15(7) and only to the extent referrable to it. Any further restriction will not have the support of law. The grounds of restriction specified in the limitation Article 15 are exhaustive and any other restriction is invalid.

Article 15(7) conditions the curtailment of the fundamental rights in the interests of national security, public order etc. In order that a law may be in the interest of national security, public order, there must be a proximate and reasonable nexus between say, (in the case of freedom of speech and expression) the nature of the speech prohibited and national security or public order – the phrase “in the interests of public order” is wider than the words “for the maintenance of national security or public order – the connection has to be intimate, real and rational. The phrase cannot be interpreted to mean that even if the connection between the restriction and the national security or public order is remote and indirect, the restriction can be said to be in the interests of national security or public order. A restriction can be said to be in the interests of security or public order only if the connection between the restriction and the security or public order is proximate and direct. Indirect or far-fetched or unreal connection between the restriction and security/public order would not fall within the purview of the expression in the interests of security/public order.”

{emphasis added}

In Wickremabandu v. Herath[7], the Supreme Court held inter alia that

“Article 15(7) permits, inter alia, restrictions in the interests of national security and public order. The learned Attorney-General contends that the Court could not interpolate “reasonable” into that provision, and hence could not inquire into the reasonableness of a restriction. It is not a matter of interpolation, but of interpretation: can we assume that the power conferred by the Constitution was intended to be used unreasonably, by imposing the reasonable restrictions on fundamental rights? The State may not have any burden of establishing the reasonableness of the restrictions placed by law or Emergency Regulations, but if the Court is satisfied that the restrictions are clearly unreasonable, they cannot be regarded as being within the intended scope of the power under Article 15(7).”

In Ekanayake v. Attorney General[8] it was held by the Supreme Court that

 The Constitution demands the protection of the right to think as you will, and to speak as you think subject to limitations which are inherent, as well as restrictions imposed by law under Article 15. Subject to that, the expression of views, which may be unpopular, obnoxious, distasteful or wrong, is nevertheless within the ambit of freedom of speech and expression, provided of course there is no advocacy of, or incitement to, violence or other illegal conduct

In Amaratunga v. Sirimal[9] (Jana Ghosha Case) it was held by the Supreme Court that

The right to support or to criticize Governments and political parties, policies and programmes is fundamental to the democratic way of life, and the freedom of speech and expression is one which cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions

In Deshapriya v. Municipal Council, Nuwara Eliya[10] the Supreme Court held

The infringement of Article 14(1) (a) can take many forms and may be direct or indirect; the exclusion of anti-government news and views in newspapers controlled by the Government, particularly when it amounts to a denial of equal treatment or discrimination because of political opinion would be as much an infringement as the suppression (by force or otherwise) of such news and views in newspapers independent of the Government.

Further, in Sunila Abeysekera v. Ariya Rubasinghe, Competent Authority[11] the Supreme Court held inter alia that,

In its social dimension, freedom of expression is a means for the interchange of ideas and information among human beings and for mass communication. It includes the right of each person to seek to communicate his or her own views to others, as well as the right to receive opinions and information from others. Freedom of speech necessarily protects the right to receive information, regardless of the social worth of such information. The right is fundamental to a free society. For the average citizen, it is just as important to know the opinions of others or to have access to information generally as the very right to impart his or her opinions.

 Learned Counsel for the petitioner submitted that the burden of justifying restrictions imposed under Article 15(7) is heavy. I find myself in agreement with him…..The burden, in my view, continues to be heavy even where freedom of speech is expressed in more or less absolute terms, as it is in Article 14(1)(a), but where specific provision is made elsewhere for exceptions. Exceptions must be narrowly and strictly construed for the reason that. freedom of speech constitutes one of the essential foundations of a democratic society which, as we have seen, the Constitution, in no uncertain terms, declares Sri Lanka to be.”

{emphasis added}

Therefore it is evident that any restriction placed in the interest of national security, would be interpreted very narrowly by the Supreme Court. Further, it appears that the Supreme Court has continuously held that any restriction imposed on the exercise of Fundamental Rights must be the least intrusive of such rights.

There is no doubt that Sri Lanka has faced a threat to public security this week and that some measures had to be taken to restore the rule of law. As stated earlie blocking of access to social media was attributed to prevent the quick spread of rumours and to prevent mobilization of rioters. However, it is equally important to ensure that it is in the interest of the Rule of Law that the Government in responding to these threats to national security must do so in a manner that conforms to and respects the Rule of Law. Therefore, the restriction of access to social media websites ought to have been by way of regulations and ought to have been limited to the geographical locations in which curfew has been declared intermittently in order to preserve the personal liberties of the citizens of the Country.

In the absence of such Orders of the Minister under whose purview the Telecommunications Act falls, and/or any Emergency Regulation made in that regard, the actions of the TRCSL to block such internet services is a violation of Article 12(1) of the Constitution and 14(1)(a) of the Constitution. Any future attempts to curtail such access by the general populous to social media and instant messaging services on the basis of Emergency Regulations may be in violation of the Fundamental Rights guaranteed by the People.

It is to be kept in mind that the preservation of the Rule of Law by those who enforce the law is of utmost importance and it is the Rule of Law which ensures that the people of any democracy are protected against the whims and fancies of the powers that be. Thus the Supreme Court in Senerath v. Kumaratunga[12] held “The basic question therefore arises as posed by Juvenal in the 1^st Century A.D. who wrote the famous Latin phrase in a slightly different context which has been frequently cited thereafter, “sed quis custodiet ipsos custodes,” meaning, “But who is to Guard the Guards themselves? … in my view the law itself is the instrumentality through which custodians are guarded.”

It is therefore time for the Guardians of the Law to take action to prevent this absolute abuse of power, and it is the responsibility of every citizen to oppose such absolute abuse of power.

“It is the first responsibility of every citizen to question authority.”

*Thishya Weragoda – LL.B. (Colombo); LL.M. (Singapore)(Intellectual Property & Technology Law), ACMA(UK), CGMA, Attorney at Law

---

[1] Right to Information Act No. 12 of 2016

[2]  https://www.washingtonpost.com/world/asia_pacific/the-latest-sri-lanka-orders-social-media-networks-blocked/2018/03/07/96e0da2c-21e9-11e8-946c-9420060cb7bd_story.html?utm_term=.5240e612e058 (last access: 08/03/2018)

[3] Short Message received from Dialog Axiata PLC on 6^th March 2018.

[4] The Government Printer’s official website does not contain any Regulation published for such purpose by the Minister on the relevant date.

[5] Emergency (Miscellaneous Provisions and Powers) Regulation No. 1 of 2018 Gazette No. 2061/21 dated 06.03.2018

[6] Joseph Perera alias Bruten Perera v. Attorney Genera (1991) 1 Sri L.R. 199

[7] Wickramabandu v. Herath SC/FR/27/1988, SCM 06/04/1990

[8] Ekanayake v. Atorney General SC/FR/25/91 SCM18/12/91

[9] Amaratunga v. Sirimal (1992) 1 Sri L.R.264

[10] Deshapriya v. Municipal Council, Nuwara Eliya (1995) 1 Sri L.R. 362

[11]   Sunila Abesekera v. Ariya Rubasinghe, Competent Authority (2000) 1 Sri L.R. 314

[12]  Senerath v. Chandirka Bandaranaike Kumaratunga, SC/FR/503/2005, SCM 03/05/2007